Tucked away near the end of the 250-page Senate budget, in between the section slashing funds for legal services and the section forecasting cuts to state cultural resources, lies a proposal which would change the rules of the game in which state lawmakers now find themselves deeply entrenched: defending their laws from constitutional challenges.
From voting rights to school vouchers to issues of local rule, the members of the General Assembly are fending off claims in at least a dozen lawsuits that laws enacted during the long session violate state and federal constitutions.
Trial court judges have found those challenges persuasive in some instances, at least initially, and have ordered the state to refrain from enforcing those laws while the cases work their way through the courts.
In a move widely seen as an attempt to reverse that course, state senators have proposed expanding the use of an appointed three-judge panel (selected by the soon-to-be Republican Chief Justice) — currently authorized for redistricting cases — to include all lawsuits in which the facial validity of a state law is challenged.
With that proposal the senators had a few directives for judges handling such cases, too.
No longer could they decide whether to stay enforcement of any ruling invalidating a state law pending an appeal. Under the senate proposal a stay becomes mandatory.
And no longer could Supreme Court justices select the cases they deemed worthy of review. Under the senate proposal, high court review of rulings invalidating a state law likewise becomes mandatory.
Republicans in the Senate cast  the proposal as necessary to protect the will of the people, but their colleagues across the aisle criticized the move as little more than a short-sighted response to losses in the courts.
Motives and politics aside, state lawmakers would be wise to consider lessons learned from the federal court experience with broad-based three-judge panels before passing that proposal into law.
For nearly 40 years those courts operated under a similar law requiring that constitutional challenges to state or federal laws be heard by three-judge panels until 1976, when lawmakers agreed with judges and litigants that the law had become an unmitigated disaster for the courts and repealed it.
As one federal judge in western North Carolina noted  years later:
The legislative history of the repealing bill shows a thorough dissatisfaction with the operation of three-judge courts, finding the procedure to be confusing and inefficient. The Senate report states that “three-judge court procedure has recently been termed by one scholar, `the single worst feature in the Federal judicial system as we have it today.’ It has imposed a burden on the Federal courts and has provided a constant source of uncertainty and procedural pitfalls for litigants.
The history of three-judge courts in constitutional challenges is one with partisan twists and mixed results.
Their use in the federal system dates back to the early 1900s, authorized then by Congress in response to a U.S. Supreme Court ruling upholding the right of a federal judge to block enforcement of an unconstitutional state statute.
Over time they evolved as an effective tool in civil rights litigation, according to Michael Solimine, a professor at University of Cincinnati College of Law who has written often about such courts.
“During the Civil Rights era, some federal judges, particularly in the deep South, were perceived as being hostile to the enforcement of federal law,” Solimine noted in this  article. “A three-judge court was considered by many to be a necessary tool to marginalize such judges and optimize enforcement of federal legal norms.”
The language of the federal law roughly matched the North Carolina senate’s proposal in calling for the panel whenever state or federal constitutional challenges were filed and in providing for a direct right of appeal to the U.S. Supreme Court.
Congress repealed much of that law in 1976, scaling back the use of the three-judge panels to just apportionment cases. (Three-judge panels were also used for preclearance pursuant to the Section 5 of the Voting Rights Act of 1965 until the U.S. Supreme Court denuded that section in Shelby County v. Holder.)
Lawmakers and judges agreed then that the panels had become an unnecessary burden on the courts and litigants complained about confusing procedural requirements and inconsistent results.
In North Carolina, three-judge panels have been used in redistricting cases since 2003, created then by Democrat leaders in the General Assembly – as Senate Republicans were quick to point out recently – to keep GOP plaintiffs from “judge shopping” in those cases.
Senate Republicans are doing no more and no less, they said during debate last week, in trying to cast a perception of fairness upon challenges to laws enacted under their watch by proposing an expansion of the three-judge process.
Regardless of the motives or politics behind the creation of three-judge panels for constitutional challenges, the process ultimately proved unworkable and the panel’s role unnecessary in the federal system.
Judges didn’t like them, Solimine said. And it became increasingly difficult to empanel three judges.
“Consuming the energies of three judges to conduct one trial is prima facie an egregious waste of resources,” David Currie, then a professor at University of Chicago Law School wrote  years before the repeal.
Supreme Court justices didn’t appreciate lawmakers interfering with the Court’s long-held discretionary right to select the cases worthy of review. And they felt inundated by the number of appeals they were required to hear because of the automatic direct appeal.
“Members of the court were very vocal about it in the 60s and 70s,” Solimine said. “Warren Burger and others were just openly hostile to the three-judge courts because of the mandatory appeal aspect and they unabashedly urge Congress to modify the statute.”
And many people thought the three-judge courts had become unnecessary, he added. The single-judge district court and ordinary avenues of appeal worked fine for most constitutional challenges.
For litigants, working their cases through the courts proved more troubling.
Upon the filing of a lawsuit, a single district court judge determined whether the case was properly in federal court and whether it otherwise fit the parameters for assignment to a three-judge panel.
As pointed out  by scholars, those initial rulings set in motion an appellate review process that played out in a number of confusing ways and led at times to inconsistent results.
What if the initial judge was mistaken? What if similar judges across the country were ruling differently? And where did an appeal of those initial rulings go – to the Circuit Court of Appeals, to a three-judge panel, or directly to the U.S. Supreme Court?
Similar problems exist with the proposed North Carolina law, which will require a judge to determine initially whether a case presents “a challenge to the validity of an act of the General Assembly on its face” before any transfer to a three-judge panel.
That may be a larger number of cases than the senators anticipate, given that, as the state bar noted in its statement  opposing provisions of the senate budget, constitutional challenges often arise in suits between private citizens too, not just in direct lawsuits against the state.
How will “on its face” be determined? Does that mean simply any case that crosses the clerk’s desk alleging that a state law is unconstitutional? Or does that mean the more nuanced constitutional interpretation of a “facial” as opposed to an “as applied” challenge?
Solimine suspects even that initial determination might breed confusion and litigation.
“If it does pass, North Carolina’s bill will probably suffer some of the same problems as occurred in the federal system,” he said, “leading some people to ask, as they did with that system, “Is this really necessary?”