Last month I blogged about a Fourth Circuit case that saw an eleventh-hour judge recusal.  The Supreme Court of North Carolina is now facing a similar issue, times five.

The case involves a class action challenging a law that required members of the North Carolina Teachers’ and State Employees’ Retirement System to pay a premium to obtain health insurance coverage.  The Supreme Court allowed the plaintiffs’ Petition for Discretionary Review of a unanimous Court of Appeals opinion, which reversed the trial court’s grant of partial summary judgment in the plaintiffs’ favor.  The PDR was allowed on February 26, 2020, and the case has since been fully briefed and awaiting argument.  However, with the change in makeup of justices on the state’s highest court after the 2020 elections, an issue has arisen that has called into question the future of the case.

As is often the case, the number of individuals in the certified class is massive (apparently more than 222,000).  And given that the certified class in this case consists of those who have served as North Carolina public employees over a period of several decades, it is perhaps unsurprising that some of the current justices of the Supreme Court might have familial connections to actual or potential class members.  But in a Special Order dated January 26, 2021, the Court disclosed that five of the Court’s current seven justices have sufficient familial connections such that under Canon 3D of the North Carolina Code of Judicial Conduct, they would be disqualified from participating in the case absent the written consent of the parties.   Given that under N.C.G.S. § 7A-10(a) a minimum of four justices is necessary for the Court to decide a case, that presents a serious problem for the continuation of the case before the Court.  And while the plaintiffs subsequently agreed that these five justices could hear the case, the defendants objected.  Thus, the case now hinges on whether the Court will invoke the common law “Rule of Necessity,” which allows for a justice who would otherwise be disqualified to nevertheless perform his or her duty if the failure to do so would amount to the denial of a litigant’s constitutional right to have a question decided by a court of last resort.  (The Rule of Necessity dates back to at least 1430, “when it was held that the Chancellor of Oxford could act as judge of a case in which he was a party when there was no provision for appointment of another judge.”  United States v. Will, 449 U.S. 200, 213 (1980)).

At the Court’s request, both sides have briefed the appropriateness of invocation of the Rule of Necessity in this case.  Not surprisingly, they don’t agree.  The case is thus at a standstill until the Court decides how to proceed (or not proceed, as the case may be).

Robinson Bradshaw’s class action blog (which alerted me to this issue) wades into the intricacies of the recusal considerations, options, and potential outcomes here.  It’s definitely worth the read, and contains links to: the January 26, 2021 Special Order from the Court disclosing the justices’ connections and seeking the parties’ position on disqualification; the parties’ subsequent submissions in which the plaintiffs consented to the Court hearing the case but the defendants objected; a February 8, 2021 Order from the Court asking for additional comment on the Court’s potential invocation of the Rule of Necessity; and the parties’ respective filings discussing the potential application of that rule.

h/t to Amanda Pickens Nitto of RBH for her thorough analysis of this unique and complex issue.

–Patrick Kane