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“Partisan control” of NC high court may be overrated, analysis suggests

The 2016 election for a seat on North Carolina’s Supreme Court was billed by many politicos as a crucial battle for control of the state’s highest court. With three Republicans and three Democrats seated on a court that was nominally nonpartisan at the time, the one race on the ballot would determine which political party held the advantage. In the end, challenger (now Justice) Mike Morgan defeated incumbent Justice Bob Edmunds, flipping the balance of power from Republicans to Democrats.

But there was always reason to think that the practical impact of the election would be, while certainly not negligible, much more muted than partisans on both sides had predicted. The Supreme Court hands down relatively few opinions each year, and in most of them the court rules unanimously. Unlike its famously divided federal counterpart, 4-3 decisions are rather rare on North Carolina’s Supreme Court, so it’s not often that any one justice can swing the court’s decision.

To see whether the reality has measured up to the rhetoric, Lawyers Weekly has analyzed the court’s published authored opinions (that is, excluding cursory per curiam opinions) since Morgan joined the bench at the start of last year. In 2017, the court published 39 such opinions, 20 in criminal cases, and 19 in civil cases. That’s a modest output compared to supreme courts in other states, but still marginally better than what the court has averaged in recent years. The court has moved at a similar pace in 2018, publishing 10 authored opinions through March.

In 35 of those 49 opinions, the court ruled unanimously. In only nine cases did the court split 4-3, and Morgan formed part of the majority in only five of those. (Justice Sam Ervin formed part of the majority in seven of those cases, making him the closest thing the court has to a swing justice.) So far, there have been only three cases in which the court has neatly split along partisan lines—although one of those rulings was an especially notable political decision.

Several appellate attorneys who spoke with Lawyers Weekly for this story declined to comment on the record, citing the sensitivity of the topic, but did not dispute the premise that the significance of the court’s partisan makeup was smaller than many have made it out to be. But Michael Crowell, a recently retired attorney who argued many cases before the court—including successfully challenging a state law that would have preempted the Edmunds-Morgan tilt in favor of a retention election—said that he was unsurprised by Lawyers Weekly’s analysis of the court’s output.

“I have always thought that those discussions about the partisan makeup of the court were largely beside the point. All in all, there are very few cases where the partisan makeup of the court is likely to have much of an effect,” Crowell said. “People pay attention when it’s a political case, but those are pretty rare cases. I think too much attention has been paid to the makeup of the court.”

The Not-dissonant Seven

In some of the cases did that did split the court 4-3, the justices sorted themselves in unexpected ways, and so it would be unwise to assume that all five decisions in which Morgan was a swing vote would have turned out differently if the election had gone the other way. In Old Republic National Title Insurance v. Hartford Fire Insurance, Morgan joined with the court’s three Republicans to hold that an insurer could not sue a bank in state court after declining to join a federal lawsuit litigating essentially the same claims.

In a criminal case, State v. Hammonds, Morgan joined with Justices Robin Hudson, Cheri Beasley and Barbara Jackson to rule that a defendant was in custody when police questioned him while he was confined under a civil commitment order, and so police should have read the defendant his Miranda rights. (Jackson is a Republican.)

Two of the three cases in which the court split cleanly along partisan lines were criminal cases as well. In State v. Romano, the court suppressed evidence from a blood test taken from a DWI suspect without a warrant and while the defendant was incapacitated. And in State v. Murrell, the court ruled that an indictment for armed robbery was fatally defective when it failed to name any weapon used in the robbery.

Burley Mitchell, a former Chief Justice of the Supreme Court and partner emeritus at Womble Bond Dickinson, said that the justices split much more frequently, and were more likely to author dissenting opinions, when he was serving on the court—even though during part of that time every justice on the court was a Democrat.

“I’ve been pleased to see that party still doesn’t seem to be playing any large role in the decisions of the individual members. When the court divides, I think it’s primarily just a difference in legal philosophy that’s not necessarily related to partisanship,” Mitchell said. “The court seems to be going along a very moderate, middle-of-the-road of the path, and not going to any partisan extremes.”

A cheesed Berger

The final instance of the court breaking down along partisan lines was likely more the sort of case that partisan groups expected the election to impact. In Cooper v. Berger, the court’s four Democratic justices earlier this year sided with Gov. Roy Cooper in a dispute with Republican legislators. The court ruled that the legislature had violated the separation-of-powers provisions of the state’s Constitution and impinged upon the governor’s ability to faithfully execute the laws by trying to combine the state’s Board of Elections with its Ethics Commission.

The fact that the most politically-tinged case to come before the court this term was also one of the very few to break along partisan lines is certainly an interesting coincidence. But John Wester, an attorney with Robinson Bradshaw & Hinson in Charlotte and a former president of the North Carolina Bar Association, said he had great confidence in the court’s ability to decide cases in a manner free from partisan influence.

“I believe the court goes about its challenging labor to analyze and announce a rule of law free from partisan background,” Wester said. “When a case with political footprints on it reaches the court, those observing have a difficult time resisting the temptation to look for political roots in the opinion. I hold confidence, however, that the citizens are receiving opinions grounded in the rule of law and our constitutions.”

The analysis of the court’s output shows that such high-profile political cases constitute only a tiny fraction of the court’s work—but that hasn’t stopped the General Assembly from continuing to fiddle with the rules in the hopes of securing a partisan advantage. Since Morgan’s victory, the legislature has lost interest in retention elections. It instead added partisan labels to Supreme Court elections—and then cancelled party primaries for this year’s judicial elections, creating the potential for a crowded ballot for the one Supreme Court seat up for grabs this fall, in which Jackson is running for re-election.

Follow David Donovan on Twitter @NCLWDonovan

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