Retention Election Lawsuit Heads to Court

• Suit challenges new law saying NC justices will face retention referendum, not an opponent, in an election.
• Key question: Does new law violate state constitution’s mandate that justices “shall be elected”?
• Plaintiffs say retention elections violate the NC Constitution.

North Carolina Supreme Court justices are elected, not appointed, to their post. This is in contrast to states like Arizona where appellate judges are appointed by the governor, rather than elected by voters. Whether or not either method is a good or bad idea is not at issue in a new lawsuit heading to court this February. What is at issue is whether there has been a violation of the North Carolina Constitution, which provides:

“Justices of the Supreme Court … shall be elected by the qualified voters and shall hold office for terms of eight years and until their successors are elected and qualified. Justices of the Supreme Court … shall be elected by the qualified voters of the state.”

During the most recent legislative session, the General Assembly enacted legislation purporting to “allow voters to elect, and then retain” Supreme Court Justices:

A justice of the Supreme Court who was elected to that office by vote of the voters who desires to continue in office shall be subject to approval by the qualified voters of the whole State in a retention election at the general election immediately proceeding the expiration of the elected term. Approval shall be by a majority of votes cast on the issue of the justice’s retention in accordance with this Article.

Sabra Faires of Cary is challenging the law based on the idea that the “retention election” provided for by the General Assembly does not meet the requirement of the North Carolina Constitution that Supreme Court Justices be “elected.” The complaint, filed on November 30 of last year, alleges that “[a] referendum on retention of an incumbent justice of the Supreme Court, as provided in S.L. 2015-66, is not an election for the office as required by [the North Carolina Constitution],” and that “[t]he Constitution requires an election in which opposing candidates may run for the office.”

Faires is represented by attorney Michael Crowell of Tharrington Smith, LLP. Their challenge alleges that the new law is “facially unconstitutional.” This means that they believe it could not be applied in a constitutional manner in any situation and is therefore as a matter of law unconstitutional on its face. This is different than an “as-applied” constitutional challenge, which alleges that a given law is applied in an unconstitutional manner. For example, the Center for Law and Freedom’s latest civil lawsuit against the NC Department of Environmental Quality alleges that DEQ is implementing the law in an unconstitutional manner – not that the law DEQ is implementing is “on its face” unconstitutional.

Such “facial” constitutional challenges are subject to N.C.G.S. § 1-81.1, which provides that such actions must be heard in Wake County Superior Court by a three-judge panel. Pursuant to this statute, the case will be heard by such a panel in the Court of Appeals courtroom at 10 a.m. on February 16. On the panel will be judge Anna Mills Wagoner, Judge Lisa Bell, and Judge Ben Alford. The case is before the panel on the plaintiffs’ motion for summary judgment – meaning that the plaintiffs contend no issues of fact are in dispute, and the court should rule in their favor as a matter of law.

The plaintiffs filed their brief on January 25. They have two main arguments:

1. The retention referendum does not satisfy the state Constitution’s requirement that justices “shall be elected by the qualified voters,” and,
2. If a retention referendum is considered an election, the legislature has violated the constitution by adding an additional qualification for office – i.e., being a sitting justice.

The plaintiffs point largely to the intent of the framers of the state Constitution:

When the drafters of the 1868 constitution first provided for election of justices they could not have contemplated a retention referendum because the concept was not conceived until nearly half a century later and was not actually adopted by any other state until 1934.

The state has until Feb. 8 to respond. After hearing the case on Feb. 16, the trial court will issue a ruling, which will most likely be appealed. Thus, it may be several more months before we find out whether the plaintiffs have prevailed.