This is Part Two in a two-part series examining recent decisions by the North Carolina Supreme Court. Part One looked at the volume of the court’s output; Part Two will analyze the types of rulings the court has handed down in those cases.
The lack of written opinions being handed down by the North Carolina Supreme Court in recent years has left the state’s lawyers lacking guidance on how courts will interpret state laws. But even though the Supreme Court hasn’t said much in recent years, the few things it has said send clear signals about what lawyers can expect to encounter when they argue before the court.
An analysis by Lawyers Weekly of all the decisions authored by the Supreme Court since the start of 2011 revealed several consistent patterns. One is that the justices, despite having noticeable differences in their judicial tendencies, agree with each other quite often. The second is that two types of litigants in particular — civil plaintiffs and criminal defendants — have had rough sledding before the court lately.
The analysis looked only at decisions where the court published an authored opinion providing guidance to the lower courts. Although only a small fraction of cases brought before the Supreme Court result in authored opinions, they’re especially important because they’re disproportionately likely to lead to the reversal of a decision by the Court of Appeals. The analysis didn’t consider per curiam opinions (cases where the justices simply endorsed either the majority or dissenting opinion from the Court of Appeals) or cases where the court declined to exercise its discretion to review a Court of Appeals decision.
Of banjos and bloodhounds
The 2012 contest for a seat on the Supreme Court attracted attention, and money, from all across the country. A TV ad produced by one Super PAC, sang the praises of Justice Paul Newby. The ad proclaimed in a catchy, banjo-fueled ditty that Newby had “criminals on the run” and would “take them down one by one.” The race drew so much interest at least partly because many observers anticipated that the court’s ideological balance might well hang in the balance. So far, however, that’s largely not been the case.
Analyzing all 44 opinions authored by the court since the start of 2013, Lawyers Weekly compiled “similarity scores” for each combination of justices reflecting how often any two justices agreed with each other in those cases. It turns out that even justices on opposite ends of the ideological spectrum agreed with each other quite often. The court ruled unanimously in 25 of the 44 cases with authored opinions, the ones that one would expect to be among the most contentious. The scores are for the period ending Aug. 31, when Chief Justice Sarah Parker retired from the court. (See chart above.)
When the court did split, it usually—but not always—did so along party lines. (Supreme Court elections are nominally nonpartisan, but each justice is closely identified with one party.) The court’s four Republican justices—Newby, Mark Martin, Robert Edmunds and Barbara Jackson—usually voted in unison. Two justices, Newby and Martin, agreed 98 percent of the time, disagreeing on just one case, a workers’ compensation case in which Newby was the court’s only dissenter. The two Republican justices mostly likely to disagree were Newby and Edmunds, though they still voted together 89 percent of the time.
Democrats Robin Hudson and Cheri Beasley tended to vote together, agreeing 92 percent of the time, but often dissented from the opinions of their Republican colleagues. Beasley agreed with Newby and Martin only 65 percent of the time, the lowest similarity scores for any combination of justices. (Because Beasley joined the court at the start of 2013 after serving on the Court of Appeals, she recused herself from 18 of the 44 cases, including the one in which Martin and Newby split.)
Parker, a Democrat with a reputation for being fairly conservative, tended to agree with her Republican colleagues more often than the other Democrats. Parker sided with Jackson in 93 percent of the court’s opinions, and her similarity to other Republicans was only slightly lower. She agreed with Hudson and Beasley 81 percent and 73 percent of the time, respectively.
Consistent with the court’s tendency toward agreement, since the start of 2013 there have only been two decisions where a case was decided by a bare 4-3 majority, and only one of them broke along party lines. (There were also cases where one justice recused himself or herself and the other six justices split 3-3, so no opinion was written.)
In one criminal law case, the court’s four Republicans found that a defendant’s rights were not violated when an analyst’s notes were admitted into evidence without the defendant having a chance to cross-examine the analyst; the three Democrats would have ruled the evidence improper. In an adoption case, three Republicans and Parker ruled that a biological father had forfeited his paternal rights, while Jackson and the other two Democrats would have upheld the Court of Appeals.
Tough crowd for some
Looking at the opinions handed down in these cases, the analysis showed that the lock-them-up premise of the banjo ad was not wildly out of place, not just for Newby, but the Supreme Court as a whole. Compared to the state’s Court of Appeals, whose 15 judges hear cases in three-judge panels, the Supreme Court has been a difficult venue for defendants making a case that they had not received a fair trial or sentence.
Since the start of 2013 the court has issued authored opinions in 18 criminal law cases. In 17 of those 18 cases, the court ruled in favor of the state, and in the other the court split on two issues, one for the defense and one for the prosecution. There were no cases where the court granted the defendant all the relief he sought. In most of those cases, the defendant had prevailed at the Court of Appeals. Of the 18 opinions, 14 reversed the Court of Appeals, two reversed in part and affirmed in part, and just two affirmed. (See chart below.)
Consistent with his reputation, Newby was one of the court’s most prosecution-friendly justices. He and Martin ruled in favor of the state in all 18 cases where the court authored opinions, with Edmunds and Jackson not far off. Parker dissented in two of those cases, while Hudson dissented in four and Beasley dissented in five (See chart below.)
Although multiple attorneys declined to discuss the issue on the record, the perception of the court as one favorable for prosecutors seems to prevail within the state’s criminal defense bar.
“I don’t think anyone would accuse them of being defense-prone, on either the Supreme Court or the appeals court level,” said Raleigh criminal defense attorney Howard Kurtz. “It’s rare to see a successful appeal in a criminal case, and I think it’s even more difficult at the Supreme Court.”
Successful criminal appeals have been the exception for some time now, although the last two years have seen an unusually long winning streak for prosecutors. In 2011 and 2012, the Supreme Court authored opinions in 27 criminal cases, and defendants were successful in only four of them.
A civil action
Civil plaintiffs have had an equally tough go at it, the analysis showed. In the same time period, the court has authored opinions in six cases that Lawyers Weekly classified as tort law cases. Torts are causes of action — like negligence or medical practice or defamation — that the law recognizes as grounds for a civil lawsuit. In all six cases, the court ruled against the plaintiff suing under a tort theory. Five of those opinions overturned rulings by the Court of Appeals, and one ruling was affirmed. (See chart below.)
Parker, Martin, Newby, and Jackson voted in the majority in each of those cases. Edmunds dissented from one of the opinions while Hudson dissented from three. Beasley did not participate in three of the cases and dissented from two of the other opinions.
The most recent term may have been something of an outlier, however. In 2011 and 2012, the Supreme Court also authored opinions in six tort or negligence cases, but plaintiffs were successful on appeal in three of those cases. Some court-watchers cautioned against reading too much into data on how outcomes have shaken out.
“In my experience, the Supreme Court has been exceedingly fair and clear in their opinions, so I’m not sure what basis anyone would have for saying the court is more one way or the other,” said Eddie Caldwell, general counsel for the North Carolina Sheriffs’ Association.
The patterns that pop up in the types of Court of Appeals decisions that get overruled may have something to do with the fact that every Supreme Court case is reviewed by the same seven justices, whereas the Court of Appeals randomly assigns three of its 15 judges to hear each case, leading to a striking amount of judicial diversity between different panels. Multiple sources cited this as a possible reason why the two courts sometimes reach contrary conclusions. (Lawyers Weekly has not yet analyzed the data to see if some Court of Appeals judges have their rulings overturned at a significantly higher rate than others.)
The takeaway from all the analysis is that the North Carolina Supreme Court is not nearly so deeply polarized as, say, the U.S. Supreme Court is perceived to be, although differences in the justices’ philosophies tend to peek through in predictable ways. Less predictable however, is what a similar analysis might reveal in two years’ time. Four of the court’s seven seats are up for re-election this fall.
Follow David Donovan on Twitter @NCLWDonovan
Source: Lawyers Weekly analyzed all of the North Carolina Supreme Court cases over the last two years where the court has published an authored opinion providing guidance to the state’s lower courts. (The analysis excluded per curiam opinions, cases where the justices simply endorse either the majority or dissenting opinion from the Court of Appeals.)