Senate jumping the judge

Jun. 25, 2014 @ 01:10 PM

This editorial appeared in the News & Record, Greensboro

The state Senate recently approved what could be called the Judge Robert H. Hobgood provision.

Hobgood has been a thorn in the side to legislative Republicans this year. First, he ruled that the private school voucher program enacted last year is unconstitutional. Next, he rendered the same judgment about a mandate for local school boards to offer bonuses to 25 percent of eligible teachers who agreed to surrender their tenure rights.

After the second ruling, Senate leader Phil Berger denounced it as a "classic case of judicial activism" by "a single Wake County judge."

Hobgood is from Franklin County, but he had heard the case in Wake County.

In response, the Senate passed a measure that will prevent any single judge -- activist or not -- from ruling in a similar case.

In any constitutional challenge to an act of the legislature, the provision says, the case will be heard in Wake County by a three-judge panel appointed by the chief justice of the N.C. Supreme Court.

Appeals of panel decisions would go directly to the Supreme Court rather than to the intermediate Court of Appeals. And orders would be automatically stayed pending appeal.

The last point would mean that, for example, Hobgood's order stopping the anti-tenure law would be set aside for however long the Supreme Court would take to issue a final decision -- maybe a year or more.

N.C. State Bar Association Executive Director Allan B. Head expressed "strong concerns about the constitutionality of a legislature telling a court it must automatically stay its own orders. The provision is a violation of separation of powers and not in the best interests of the public."

That's a valid complaint. Besides, a program or policy that a judge has determined to be unconstitutional should not go into effect unless and until that judge has been overruled by a higher court. A stay is the best mechanism to prevent harm. After all, the higher court might agree that the measure contradicts the constitution.

Using a three-judge panel instead of a single judge sounds like a waste of resources for a court system that already has more work than it can manage. But bypassing the Court of Appeals could make up for that.

It's obvious, however, that the idea behind this isn't to improve the quality or speed of justice. It's a knee-jerk reaction to some adverse rulings, particularly by a single judge. Under this measure, that judge no longer would have that opportunity.

This change shouldn't make a difference to the ultimate outcomes. A three-judge panel, and the Supreme Court reviewing a case on appeal, will look through the same legal lens. If a law violates the state or federal constitution, it must be stopped from taking effect. Three judges, or seven, can come to the same conclusion as one.

The best way for the legislature to avoid adverse court rulings is to not enact laws that conflict with the constitution. Every judge in the state should be activist enough to say no to those.