When GOP lawmakers began to dismantle and politicize the judiciary this year, North Carolina’s business community and an insulated business court chose to remain silent.
In reducing the size of the Court of Appeals, redrawing judicial districts and proposing a constitutional amendment to shorten all judges’ and justices’ terms to two years, lawmakers were met with opposition from progressive advocacy groups, Democrats, segments of the public at-large and some judicial stakeholders – but those aren’t the forces that have influence in the Legislative Building.
Business leaders, in contrast, do have clout in the General Assembly, but did not weigh in at all on legislation affecting the courts. Some argue that if they had, things might have been a little different.
“The business community has shirked its responsibility of defending the judiciary,” said retired Court of Appeals Judge Doug McCullough, who is a registered Republican.
He retired early from the bench to postpone the law reducing the Court of Appeals from 15 judges to 12 from going into effect. He said historically the business community has been an ally to the judiciary, especially when under attack.
“The business community has a vested interest in a viable court system across the board,” McCullough said. “I think they’re afraid that if they speak up, they’ll get what little special treatment they’ve gotten taken away.”
‘This follows a pattern’
One possible explanation for the business community’s silence could be the kid glove treatment afforded by lawmakers to the state’s business court. North Carolina’s business court was created by lawmakers in 1996 to handle complex business litigation and make the state more appealing for corporations. It is a specialized superior court that consists of four judges (all of whom are currently appointees of former Gov. Pat McCrory) and a full-time emergency judge who serves as the chief.
Business court judges have either been left out of measures affecting the courts explicitly or by default because they’re appointed to five-year terms and not elected.
In Senate Bill 257, this year’s state budget bill, lawmakers reduced emergency judges in the state by more than two-thirds, but wrote an exception for those who hear complex business cases.
“An emergency judge assigned to hear and decide complex business cases shall not be counted in the combined total of active superior and special superior court judges described in subsection (a) of this section,” the law states.
This is of particular note because the chief judge of the business court, Jim Gale, was designated an “emergency judge” and works full-time for a $500 per day stipend, according to the Administrative Office of the Courts (AOC).
The other judges on the court are considered special superior court judges and have a starting salary of $132,584, the same as a regular superior court judge.
The Governor currently has the power to appoint special superior court judges and the state Supreme Court Chief Justice has the power to assign those judges to business court. The General Assembly must approve the nomination.
There was a bill filed earlier this year but not passed, House Bill 241, that would have taken the Governor’s appointment power and given it directly to the General Assembly.
Michael Crowell, an attorney in Chapel Hill and former UNC School of Government professor, said that the business court has enjoyed widespread support from the public and legislators since its inception.
“This follows a pattern in recent years of treating the business court differently,” he said. “One oddity about it, it’s not really a separate court; it’s part of superior court.”
Crowell said there has been a lot of “tinkering” over the years with the terms of business court judges but that it has been designed to make them more secure.
“In the end, it all just reflects lawmakers’ favorable view of business court judges,” he added.
It also just happens to be the case that all of the current business court judges are registered Republicans: Louis Bledsoe III, Adam M. Conrad, Gregory P. McGuire and Michael L. Robinson. Chief Judge Gale is registered as an unaffiliated voter.
Rep. Marcia Morey (D-Durham), who is a former chief district court judge, said she sees an inequity in how business court judges are treated compared to other judges.
“I don’t think you can separate justice into categories,” she said. “Changes to the courts impacts people regardless of business interests or personal interests.”
None of the business court judges responded to a request for comment for this article.
‘They ought to be speaking up’
If business leaders are remaining silent in the current debate merely because the business court itself has been insulated thus far, they may want to reconsider their stance. Not all business court cases start or end in business court.
There are specific requirements that a case must meet to be deemed complex and to be assigned to a business court judge, but the appeals process for those complex business cases is the same as any case, so they can and often do end up in the Court of Appeals or state Supreme Court for a final disposition.
It was due in part to such reasons, said McCullough, that the business community pushed in the 1960’s for the viable and unified court system that has emerged in North Carolina.
He and Rep. Joe John (D-Wake), who is also a former judge, pointed out that if judges are running for election every two years, cases in and out of the business court that involve business entities would be affected.
“Now would be the time to talk about it if they would,” McCullough said of the business community speaking out.
John said anyone in the business community who doesn’t think they will be affected by disruption stemming from such vast judicial changes is wrong.
“The business community has an interest in prompt and sure disposal of cases,” he said. “That won’t be so under the [constitutional] amendment.”
To prove his point, John asked what would happen to a business court case in the appellate process if the judge was in the middle of writing an opinion when their term ended. The case would have to be reheard by a different appellate panel, he said.
“The process is just so, so ludicrous,” he added.
John said he believes the business community needs to be more educated about the business court.
“The Chamber and others need to realize very few and only the most complex cases are sent to the business court,” he said. “They ought to be speaking up. This is not a matter where we need to be cautious and tip-toe.”
Thus far, however, the position expressed by McCullough and John does not seem to be carrying the day with business leaders. The North Carolina Chamber did not respond to multiple requests for comment about its position on legislation affecting the courts or the exclusion of business court from those measures.
The Greater Durham Chamber of Commerce and the North Carolina Business Council also did not return a request for comment on the matters.
The Raleigh Chamber of Commerce and the National Federation of Independent Business took no position on legislation affecting the courts.
The North Carolina Bar Association released a statement opposing Senate Bill 698, the constitutional amendment to shorten judges’ and justices’ terms, but President Caryn McNeill said the group did not have a position on the differential treatment of business court and its judges by legislators.
AOC spokeswoman Sharon Gladwell said the agency also did not have a position on how special superior court judges, and particularly business court judges, have been excluded from legislation this session that changes the courts.
House Minority Leader Darren Jackson (D-Wake) said that the courts matter most in providing justice to people involved in civil disputes or criminal acts, but they also matter for job creation.
“A fair, uniform, and independent judicial system is what businesses, consumers, and workers expect and demand,” he said. “Today’s courts work well despite being underfunded. Many groups deserve credit for the strong courts we have now.”
He said the attacks this year on judges and their independence has been unrelenting.
“Beating back these attacks requires everyone who values independent courts to fight for independent courts, and that includes business groups, worker groups, lawyer groups, and North Carolina citizens,” Jackson added.
Similarly, Ford Porter, a spokesman for Gov. Roy Cooper, said there is an effort to take over the judiciary for political reasons instead of trying to find a way to get the best judges.
“The legislation we’ve seen will damage our legal system and confidence in our courts,” he said. “All North Carolinians should be concerned by legislators’ repeated threats to an independent judicial branch.”
Porter did not respond when asked more specifically about the unequal treatment of regular judges compared to business court judges.
Morey said she thinks businesses should be reminded of justice and fairness and emphasized that it’s in everyone’s best interest to demand an impartial, independent judiciary.
“They’re protecting the business enterprise of the business court, but they’re forgetting the people and the businesses that go before other courts,” she added.