Making laws challenge-proof
08/20/2014 5:32 PM
08/20/2014 5:34 PM
Here’s an unreasonable solution to unreasonably bad legislation: If an N.C. lawmaker votes for a bill that is subsequently rejected by the courts, that lawmaker must help pay for resources that went into defending the flawed law.
Absurd? Well, yes. But no more so than the latest legislative gem from N.C. Republicans – a provision in the state budget that fast-tracks all constitutional challenges of state laws directly to a three-judge panel appointed by the chief justice of the state Supreme Court.
The law, which takes effect in September, will bypass pesky Superior Court judges, who keep rudely reminding Republicans that the Constitution matters when it comes to lawmaking. Republicans say the problem isn’t the laws, it’s the judges. A panel, they say, will keep activists from “judge shopping” – or finding a Superior Court judge who might issue a favorable ruling.
Of course, this new law is judge shopping to the extreme: Challenges to state law will now leap straight to a panel selected by the Republican judges who control the state Supreme Court.
The North Carolina State Bar and the N.C. Administrative Office of the Courts oppose the provision, which is the first of its kind in the country. There’s a reason for that: The law deprives plaintiffs the full appeals process they’re entitled to. That includes Superior Court judges issuing stays on legislation being implemented until matters are legally settled.
All of which means that this law, too, can be added to the list of constitutionally flawed measures passed by N.C. Republicans in recent sessions. This year alone, federal judges struck down an N.C. law that would allow a “Choose Life” license plate, but not a pro-choice plate, as well as a provision in an N.C. law that required doctors to narrate ultrasound images for women seeking abortions.
Also this year, Superior Court Judge Howard Manning rebuked legislators for an “unlawful taking” of Asheville’s water system, and Superior Court Judge Robert Hobgood had enough concerns with the legislature’s school voucher plan that he temporarily blocked it. The Supreme Court lifted that stay, but Hobgood will make a final decision on vouchers this week.
We’re not sure why Republicans continue to hold their hands over the legal flame like this. It could be that controlling the legislature and governor’s mansion has left them with the illusion that no one, not even judges, should be able to tell them no. It could be they think there’s no harm in tossing a bad bill up against the wall and seeing what sticks.
But there is harm. Passing flawed legislation wastes time and resources, and this most recent law shows an additional disregard for the role the courts play in lawmaking. Here’s a better – and even reasonable – idea: If some of the laws you pass are getting held up in court, don’t try to silence judges. Write better laws.
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