The rule that would have allowed the N.C. Supreme Court’s chief justice to call back retired justices to serve on a case-by-case basis to avoid potential deadlocks has been rescinded.
J. Bryan Boyd, the clerk of the state Supreme Court who signed and entered the controversial amendment to the Supreme Court rules, signed and entered an order on Friday with no explanation behind the decision to reverse it.
The change comes after a month in which many in the legal community questioned the reasons for such a rule change while court officials remained mum about what drove the change.
What had been proposed would have given Chief Justice Mark Martin the authority to “when necessary to avoid the possibility of an evenly divided disposition,” call in a retired justice after a justice recused himself or herself from a case or had been disqualified from hearing one.
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The substitute justice would have been “selected using a neutral rotation process from a list of eligible retired justices maintained by the Supreme Court.”
John Orth, a UNC-Chapel Hill law professor, questions the constitutionality of such a change. In an op-ed piece published in The News & Observer, he questioned how the chief justice would know where the other justices stood on a case until after attorneys made their arguments in open court and the justices had retreated behind closed doors together and started their deliberations.
The state’s high court is set up so the discussions among the justices are done out of public earshot. Once they have decided the case, a justice from the majority writes the opinion attached to the ruling and that becomes public. Those in the minority sometimes choose to add their viewpoints for the public to read and analyze.
Ties are rare, but there have been a few high-profile ones in recent years. Questions about the legality of North Carolina’s lottery left the state’s highest court divided three to three after Martin, who was an associate justice then, recused himself. Martin, a Republican, has been chief justice since 2013..
Earlier this year, the justices deadlocked 3-3 on whether the legislative attempt to change how justices stand for re-election violated the state constitution. Justice Bob Edmunds, who was the only justice up for re-election in 2016, recused himself, and the split decision meant the lower court ruling overturning the law stood. Edmunds lost to Wake County Superior Court Judge Mike Morgan in the Nov. 8 election, shifting the 7-member court back to a 4-3 Democrat majority after Morgan is sworn in in January.