Blankenship v. Bartlett

• Decision Date: 03 July 2007
• Docket Number: No. COA06-1012.,COA06-1012.
• Court: North Carolina Court of Appeals
• Parties: Brian L. BLANKENSHIP, Thomas J. Dimmock, and Frank D. Johnson, Plaintiffs, v. Gary BARTLETT, as Executive Director of the State Board of Elections, Roy Cooper, as Attorney General of the State of North Carolina, and North Carolina State Board of Elections, Defendants.

646 S.E.2d 584

Brian L. BLANKENSHIP, Thomas J. Dimmock, and Frank D. Johnson, Plaintiffs, v. Gary BARTLETT, as Executive Director of the State Board of Elections, Roy Cooper, as Attorney General of the State of North Carolina, and North Carolina State Board of Elections, Defendants.

No. COA06-1012.

Court of Appeals of North Carolina.

July 3, 2007.

Appeal by defendants from judgment and order entered 8 February 2006 by Judge Donald L. Smith in Superior Court, Wake County. Heard in the Court of Appeals 19 March 2007.

Akins, Hunt & Fearon, P.C., by Donald G. Hunt, Jr., Fuquay-Varina, for plaintiffs-appellees.

Attorney General Roy Cooper, by Special Deputy Attorneys General Alexander McC. Peters, Susan K. Nichols, and Karen E. Long, for defendants-appellants.

WYNN, Judge.

In Stephenson v. Bartlett, our Supreme Court held that the North Carolina Constitution guarantees that "the right to vote on equal terms is a fundamental right" in the context of representative positions.¹ Here, Plaintiffs contend that the holding in Stephenson extends beyond representative positions to include the election of judges. Because the principle of "one person, one vote" is constitutionally required only in the context of elections for representative positions,² we conclude that the rule does not apply to the election of judges, who "do not represent people, they serve people."³ Accordingly, we reverse the judgment of the trial court.

On 6 December 2005, Plaintiffs Brian Blankenship, Thomas J. Dimmock, and Frank D. Johnson, who are citizens, taxpayers, and registered voters in Wake County, filed this lawsuit against the North Carolina State Board of Elections and Attorney General to challenge the constitutionality of the Superior Court districts in Wake County, as established by North Carolina General Statute § 7A-41 (2004). Plaintiffs argue that the current judicial districting plan for Wake County violates the Equal Protection Clause of the North Carolina State Constitution because the districts are disproportionate in terms of population.

Section 7A-41 divides Wake County into four judicial districts: 10-A, 10-B, 10-C, and 10-D. Under the statute and according to the 2000 U.S. Census, the six resident Superior Court Judges allotted to Wake County are elected as follows: Two in District 10-A, with 64,398 residents; two in 10-B, with 281,493 residents; one in District 10-C, with 158,812 residents; and one in 10-D, with 123,143 residents. Plaintiffs contend that the disproportionate size of the districts and number of judges elected, particularly of District 10-A, unconstitutionally dilute the voting power of each individual Wake County resident. In their initial complaint, Plaintiffs sought, inter alia, a declaratory judgment that the judicial districts are unconstitutional and an injunction enjoining and restraining Defendants from holding any election for the office of Superior Court Judge in Wake County.

On 9 December 2005, then Chief Justice I. Beverly Lake of the North Carolina Supreme Court designated this matter as "exceptional" pursuant to Rule 2.1 of the General Rules of Practice and assigned an Emergency Superior Court Judge to hear the case. After expedited discovery and motions, the trial court entered a judgment and order on 8 February 2006, concluding that the Wake County judicial districts are unconstitutional as drawn and granting declaratory judgment and a permanent injunction to Plaintiffs. The trial court stayed the judgment and order pending appeal.

Defendants timely appealed, arguing that the trial court erred by (I) concluding that the Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution requires population proportionality in the establishment of Superior Court districts; (II) not treating documents submitted by the Administrative Office of the Courts to the United States Department of Justice to obtain pre-clearance of 1993 N.C. Session Laws 321 as a record of regularly conducted activity or a public record or report; and (III) concluding that the General Assembly acted arbitrarily and capriciously when it established the Superior Court divisions for Wake County. We agree with all of Defendants' arguments.

I.

Defendants first argue that the trial court erred by concluding that the Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution requires population proportionality in the establishment of Superior Court districts. Defendants contend that the principle of "one person, one vote" does not apply to judicial elections under either the United States Constitution or our North Carolina State Constitution. We agree, noting that this is a question of first impression to our State's appellate courts.⁴

The Equal Protection Clause, first placed in our State Constitution in 1971, declares that "[n]o person shall be denied the equal protection of the laws[.]" N.C. Const. art. I, § 19. The United States Supreme Court has held that the cognate Equal Protection Clause of the Fourteenth Amendment to the federal constitution requires that the principle of "one person, one vote" govern legislative districting and apportionment. See Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S.Ct. 1362, 12 L.Ed.2d 506, 529 (1964) ("Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators."). Our state Supreme Court has likewise concluded that "the right to vote on equal terms is a fundamental right" guaranteed by the Equal Protection Clause. See Stephenson v. Bartlett, 355 N.C. 354, 378, 562 S.E.2d 377, 393 (2002) (citations omitted) (case brought by citizens and registered voters to challenge legislative redistricting plans approved by the North Carolina General Assembly), reh'g denied, 357 N.C. 470, 587 S.E.2d 342 (2003).

Nevertheless, federal courts including the United States Supreme Court have drawn a distinction between the requirement of "one person, one vote" in elections for representative positions and those for judicial positions:

[E]ven assuming some disparity in voting power, the one man-one vote doctrine, applicable as it now is to selection of legislative and executive officials, does not extend to the judiciary. Manifestly, judges and prosecutors are not representatives in the same sense as are legislators or the executive. Their function is to administer the law, not to espouse the cause of a particular constituency. Moreover there is no way to harmonize selection of these officials on a pure population standard with the diversity in type and number of cases which will arise in various localities, or with the varying abilities of judges and prosecutors to dispatch the business of the courts. An effort to apply a population standard to the judiciary would, in the end, fall of its own weight.

Holshouser v. Scott, 335 F.Supp. 928, 931 (M.D.N.C.1971) (quoting Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964)), aff'd mem., 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972). Significantly, in Holshouser, the Middle District Court of North Carolina could "find no case where the Supreme Court, a Circuit Court, or a District Court has applied the `one man, one vote' principle or rule to the judiciary." Id. at 930. Indeed, in Wells v. Edwards, the United States Supreme Court affirmed a district court's rejection of a claim based on the "one person, one vote" principle applied to the election of Louisiana Supreme Court justices. See 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973).⁵

Of course, we recognize that when "construing and applying our [state] laws and the Constitution of North Carolina, [North Carolina appellate courts are] not bound by the decisions of federal courts, including the Supreme Court of the United States." State ex rel. Martin v. Preston, 325 N.C. 438, 449-450, 385 S.E.2d 473, 479 (1989). Still, in our discretion, "we may conclude that the reasoning of such decisions is persuasive." Id. at 450, 385 S.E.2d at 479. Indeed, as this Court has previously noted, "[a]lthough decisions of the Supreme Court of the United States construing federal constitutional provisions are not binding on our courts in interpreting cognate provisions in the North Carolina Constitution, they are, nonetheless, highly persuasive." Stam v. State, 47 N.C.App. 209, 214, 267 S.E.2d 335, 340 (1980) (citation omitted), aff'd in part and rev'd on other grounds in part, 302 N.C. 357, 275 S.E.2d 439 (1981).

When "interpreting our Constitution—as in interpreting a statute—where the meaning is clear from the words used, we will not search for a meaning elsewhere." Preston, 325 N.C. at 449, 385 S.E.2d at 478-79 (citation omitted). Additionally, we emphasize that "[a]ll power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution." Id. at 448-49, 385 S.E.2d at 478 (citing McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961)).

In Preston, our Supreme Court construed a state statute related to the election, districts, and terms of office for various Superior Court judgeships. 325 N.C. at 443, 385 S.E.2d at 475. Discussing the constitutionality of postponing the election dates for certain judgeships, the Court noted that our state Constitution specified the timeline for legislative and executive elections, but used more general "from time to time" language for judicial elections. Id. at 454, 385 S.E.2d at 481. The Court concluded that "[t]he distinction between those [legislative and executive] provisions of our Constitution and the provisions before us in this case concerning judges must have been intentional and further evidences a...