During the last year, there have been a number of matters decided by an evenly-split vote at both the U.S. Supreme Court and our state Supreme Court. At the U.S. Supreme Court, such cases are simply affirmed. See, e.g., United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam); Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159 (2016) (per curiam). But at the state level, the decision of the lower court is “left undisturbed and stands without precedential value.” See, e.g., CommScope Credit Union v. Butler & Burke, LLP, — N.C. –, –, 790 S.E.2d 657, 663 (2016). The most prominent example at the state level was probably the case that posed a constitutional challenge to the retention election system first applicable to Justice Bob Edmunds.
Both courts are designed to avoid this result, as both have an odd number of seats. This week, the Supreme Court of North Carolina sought to further diminish the likelihood of a deadlock by adding a new “Rule 29.1” to the North Carolina Rules of Appellate Procedure. Under this rule, when an associate justice “is recused or disqualified from participation in a specific matter,” the Chief Justice can appoint a substitute justice to “participate in the consideration and decision of the matter.” The substitute justice will be selected “using a neutral rotation process from a list of eligible retired justices.” The new rule is effective immediately.
It will be interesting to see how often and under what circumstances this rule is employed. We don’t know whether it will apply to every case in which a recusal is announced in advance, or if it will be limited to cases in which a 3-3 tie would otherwise result. We also don’t know what would happen if the Chief Justice recused himself.
Let us know your thoughts about the new rule in the comments below.
And thanks to Drew Erteschik for drawing our attention to the rule!