- NC Policy Watch - http://www.ncpolicywatch.com -

Special three-judge panels have a lot of power in NC, but how do they get it?

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The three-judge panels help decide the fate of major issues affecting all North Carolinians.

Constitutional challenges, especially over the last year, have been highly politically charged in North Carolina and the three-judge panels appointed to hear those cases wield a lot of power with little transparency as to how they got it.

Those panels, appointed by the chief justice of the state Supreme Court, help decide the fate of major issues that affect all North Carolinians, including the how much power the governor wields [2], who controls the public school system’s $10 billion budget [3] and even the basics of who represents North Carolinians in Congress and the General Assembly [4].

There have been at least 30 constitutional challenges to laws enacted by the General Assembly in state court over the past four years, according to information from Wake County court officials.

The basic process of assigning three-judge panels is generally spelled out in the law but generally not well-known to the public.

Any legal action that constitutes a facial constitutional challenge to the validity of a state law or any legal action challenging redistricting plans are required to be filed in or transferred to Wake County Superior Court to be heard by a three-judge panel appointed by the chief justice, who is currently Mark Martin.

Aside from a few rules Martin must abide by, the law does not directly address the appointment process. Does he draw straws? Does he hand-pick judges? Is there a rotation for three-judge panels? Are there rules for how many times a judge can serve on a three-judge panel?

The law is unclear.

It does, however, give those panels the sole authority at the trial court level to issue an order or judgment affecting the validity of General Assembly actions — and even though the appellate process often provides the final word on those challenges, many don’t make it that far.

Here is a breakdown of the parts of the appointment process that are clear — without all the legalese:

Challenges involving redistricting plans:

Facial challenges to the validity of an act of the General Assembly:

Click here [7] for more information on the structure of the North Carolina Court System and the division of authority and responsibility amongst the various state judicial branches.

Constitutional Challenges

These are the known constitutional challenges that fall under statutes providing for the appointment of three-judge panels. This information was compiled by Kellie Myers, Wake County trial court coordinator, with some additions by NC Policy Watch for updated information. Myers last updated the list in Dec. 2017. There may be some missing information from the court.
CaseOriginating CountyReferred to a 3-judge panel?Challenge(s)Date of order from Chief JusticeDesignated judges
*denotes lead judge
Disposition/Appeals
Boone v. StateWatauga Yes, on 10/14/13 -- by Watauga County superior court judgeSession law 2014-33: An act providing that the town of Boone shall not exercise the powers of extraterritorial jurisdiction11/3/2014Paul Ridgeway*
Nathaniel Poovey
Alma Hinton
Summary judgement for plaintiff on 07/29/2015
McCrory v. BergerWakeYes, in December 2014 -- by (now retired) Judge Donald StephensEnergy Modernization Act and coal ash management12/4/2014Howard Manning Jr.*
Rusty Duke
Yvonne Mims Evans
Judgement in favor of plaintiffs -- law ruled unconstitutional 03/16/2015
Appealed to NC Supreme Court
Wilson v. NC Department of CommerceWakeYes, on 06/04/2015 -- by Judge Paul RidgewaySenate Bill 42: An act to clarify the confidentiality of unemployment compensation records6/17/2015A. Graham Shirley*
Marvin Blount
Lisa Bell
Summary judgement granted for defendant on 07/19/2016
Haw River Assembly and Keely Wood Puricz v. Vikram Rao, et al.WakeSTAYEDG.S. 143B-293.1, which governs appointments to the NC Mining and Energy Commission Stayed by (now retired) Judge Donald Stephens on 05/07/2015 pending outcome of appeal in McCrory v. Berger
Faires, et al. v. State Board of ElectionsWakeYes, in December 2014 -- by (now retired) Judge Donald StephensSession Law 2015-66, which provides for justices of the NC Supreme Court to be subject to a referendum on retention in office after the conclusion of the justice's first elected term of office12/4/2015Anna Mills Wagoner*
Benjamin G. Alford
Lisa Bell
Hearing held on 02/16/2016; summary judgement granted in favor of plaintiffs; order filed 03/04/2016
Appealed to NC Supreme Court on 03/09/2016
Samuel L. Jackson v. Matthew Scott DiggsWakeNoAlienation of Affection and Criminal Conversation - limitations on claims pursuant to NCGS § 52-13
William Bunch, III v. Lisa BrittonWakeNoSex offender registryState 's Motion to Dismiss granted 12/04/2015
Clean Water for NC v. NC Mining and Energy CommissionWakeSTAYEDG.S. 143B-293.2, which governs appointments to the NC Mining and Energy Commission State's Motion to Stay granted 08/26/2015
PETA v. NC, et al.WakeYes, on 12/29/2015 -- by (now retired) Judge Donald Stephens2015 act relating to using live opossums on New Year's Eve1/6/2016Forrest D. Bridges*
Tanya Wallace
Stuart Albright
Summary judgement granted for defendants
Ryan E. Pollard and Ashley A. Pollard v. Matthew A. Huber and Brian E. HuberDurhamYes, on 02/18/2016 -- by Patrice A. HinnantRule 414 of the NC Rules of Evidence and 2011 amendments to G.S. 858.1 (limitation on presentation of medical bills)3/7/2016G. Bryan Collins*
Claire Hill
William H. Coward
Plaintiff's motion for summary judgment denied on 06/17/2016
Walters et al. v. State of NC and William West, District Attorney
WakeYes, on 06/15/2016 -- by (now retired) Judge Donald StephensRacial Justice Act8/19/2016W. Osmond Smith III*
Quentin Sumner
Nathaniel Poovey
Plaintiffs filed voluntary dismissal on 12/19/2016
D&D Partners of Winston Salem, T/A Club Risque v. NC ABC CommissionGuilfordYes, on 03/21/2016 -- by Judge Lindsay R. Davis Jr.G.S. 18B-904(e)(4) - ABC Commission/30-day automatic suspension of permitThomas H. Lock*
Kevin M. Bridges
W. Robert Bell
NC State Board of Education v. State of NC and NC Rules Review CommissionWakeNo -- Court of Appeals dismissed, said it should have gone to three-judge panelThe state Court of Appeals dismissed an appeal, noting that it was without jurisdiction to hear the appeal because the appeal lies of right directly to the Supreme Court from any order or judgment that holds an Act of the General Assembly is facially invalid as a constitutional violation under G.S. 7A-27(a1).
n the Matter of Hughes et al (COA 15699); In the Matter of Redmond et al (COA 15763); In the Matter of Smith (COA 15-829) (consolidated)Industrial Commission On remand to state Court of AppealsEugenics Compensation casesThe opinions were appealed to the state Supreme Court and are pending pursuant to a petition
Bertie County Board of Education, et al v. State Treasurer of NC, NC State Budget Director, et alWakeNo Session Law 2011-145 added (4b) to G.S. 7A-304 to remit $50 improper equipment fees to Department of Correction -- violation of Art. IX, Sect. 7(a) of NC Constitution
Anson County Board of Education, et al v. State Treasurer of NC, NC State Budget Director, et alWakeNo Session Law 2011-145 added (4b) to G.S. 7A-304 to remit $50 improper equipment fees to Department of Correction -- violation of Art. IX, Sect. 7(a) of NC Constitution
Nour v. Lost Treasure GoldWakePending reviewUNCLEAR: Plaintiff appears to challenge the constitutionality of Rule 414 of the North Carolina Rules of Evidence and 2011 amendments to G.S. 8-58.1.
Sanders v. Donald E. Harrison (WCSO), et alWakeSTAYED on 06/21/2016 pending determination of liability; then to 3-judge panel if necessary; assigned to Judge Robert Hobgood under LR2.2G.S. 90-21.19, liability limit for noneconomic damages
Cooper v. Berger & Moore #1WakeYes, on 12/30/2016 -- by (now retired) Judge Donald StephensSeparation of powers issues with Board of Elections changes, Senate advise and consent for gubernatorial appointees and exempt gubernatorial positions1/3/2017Jesse B. Caldwell III*
L. Todd Burke
Jeffery B. Foster
First Issue: Board of Elections -- Plaintiff's motion for summary judgement granted (unanimous)
Second Issue: Advice and Consent -- Plaintiff's motion for summary judgement denied (Caldwell and Foster concur; Burke dissents)
Third Issue: Exempt Positions -- Plaintiff's motion for summary judgement granted (Caldwell and Burke concur; Foster dissents)
The state Court of Appeals affirmed the 3-judge panel's decision on Advice and Consent (Issue 2) on 11/07/2017
NC State Board of Education v. State of NC and Mark Johnson, in his official capacityWakeYes, on 12/30/2016 -- by (now retired) Judge Donald StephensTransfer of power from the Board of Education to Superintendent Mark Johnson1/3/2017Forrest D. Bridges*
James F. Ammons Jr.
Martin B. McGee
Summary judgement granted to defendants
Case is on appeal
Rivera v. TremblyWakeYes, on 4/18/2017 -- by (now retired) Judge Donald StephensRule 414 of the NC Rules of Evidence and 2011 amendments to NCGS § 858.1 (limitation on presentation of medical bills)4/21/2017G. Bryan Collins*
Claire Hill
William H. Coward
Settled prior to 3-judge panel meeting
Cooper v. Berger, Moore and NC #2WakeYes, on 4/26/2017 -- by (now retired) Judge Donald StephensSession Law 2017-6: Board of Elections/State Ethics Board changes4/27/2017Jesse B. Caldwell III*
L. Todd Burke
Jeffery B. Foster
Defendants' motion to dismiss granted
Cohen v. City of Raleigh WakeSTAYED pending outcome on liabilityRule 414 of the NC Rules of Evidence and 2011 amendments to G.S. 858.1 (limitation on presentation of medical bills)
Common Cause v. Daniel Forest, Timothy Moore and Philip BergerWakeYes, on 8/1/2017 -- by Judge W. Osmand Smith IIISession Law 2016-125 and Session Law 2016-126 challenging the manner by which the GA called the 4th Extra Session and voted9/13/2017Wayland J. Sermons*
Martin B. McGee
Todd Pomeroy
Salisbury Ridge v. NCABC CommissionGastonYes, on 11/28/2016 -- by Judge Jesse B. Caldwell
Cooper v. Berger #3WakeYes, on 11/16/2017 -- by Judge Paul RidgewaySection 1 of Session Law 2017-7 (Reducing the Size of the Court of Appeals); G.S. 143B-135.240 (Clean Water Management Trust Fund); G.S. 143B-168.4 (Child Care Commission); G.S. 143-135.25 (State Building Commission); G.S. 143B-135.202 (N.C. Parks and Recreation Authority); G.S. 143B472.128 (Rural Infrastructure Authority); G.S. 74C-4 (Private Protective Services Board); Section 6.6.(b) of Session Law 2017-57 (Voucher Mandate)11/20/2017Henry Hight Jr.
Jay Hockenbury
Nathaniel J. Poovey
Russell v. WoodieUnionYes, on 5/24/2017 -- by Judge Christopher BraggG.S. 14-190.5A: revenge porn
Craft Freedom, LLCWakeCraft breweries/cap
Carver v. ElliottForsythAlienation of Affection: Unclear as to the act of the General Assembly being challenged -- waiting on response from counsel
Moore v. MooreGuilfordYes, by district court Judge Jon KreiderG.S. 50-13.2(b1) -- Grandparent visitation raised in motion to intervene