Friday I blogged about a proposal to expand the Supreme Court’s mandatory appellate jurisdiction in Business Court cases.  The General Assembly is apparently seeking more changes for our state judiciary–including expanding the mandatory docket of the Supreme Court in another area of the law.

A proposed amendment by the Senate to N.C. Gen. Stat. § 7A-27 (2013 Senate Bill 744, Section 18B.16(e)) would provide direct appeal to the North Carolina Supreme Court of both final and interlocutory orders that declare an act of the General Assembly unconstitutional.

At least in theory, all cases which raise a “substantial constitutional question” currently can be appealed as of right to the North Carolina Supreme Court after the cases are decided by the Court of Appeals.  See N.C. Gen. Stat. § 7A-30; Appellate Rule 14(b)(2).  What constitutes a “substantial constitutional question” is determined by the Supreme Court.  A 2010 article by former Justice Robert Orr noted that over a five-year period, the Supreme Court determined that an appeal involved a “substantial” constitutional question in only two cases.  If the proposed amendment to N.C. Gen. Stat. § 7A-27 passes, the “substantial constitutional question” criterion will be jettisoned whenever a state law is declared unconstitutional and these types of appeals will completely bypass the Court of Appeals.

Various other proposals by the General Assembly include plans to

  • phase-out four of North Carolina’s special superior court judges (Section 18B.6.)
  • decrease funding to the North Carolina State Bar (Section 18B.15.(a))
  • require all civil challenges to the facial validity of a state statute to be heard by a three-judge panel appointed by the Chief Justice to hear all such challenges in Wake County (Section 18B.16.(a))
  • require a stay pending appeal of any civil injunctive or declaratory relief order that prohibits the enforcement of a state statute on the ground that the law is unconstitutional as applied. (Section 18B.16.(a)). The proposal would also mandate interlocutory appellate review in the Court of Appeals of any order that granted injunctive relief in these “as applied” constitutional challenge cases. (Section 18B.16(e))

The House is also floating a proposal to take the power to designate Business Court judges away from the Chief Justice, and give that power to the Governor.

As always, we are interested in hearing your thoughts about these legislative proposals (including any proposals we may have not yet flagged).  Let us know your thoughts in the comments below.

–Beth Scherer

Big thanks to Jonathan McGirt who first alerted me to these proposals.