BRIAN L. BLANKENSHIP, THOMAS J. DIMMOCK, AND FRANK D. JOHNSON v. GARY BARTLETT, AS EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS; ROY COOPER, AS ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA; AND NORTH CAROLINA STATE BOARD OF ELECTIONS
No. 455PA06-2
IN THE SUPREME COURT OF NORTH CAROLINA
28 August 2009
363 N.C. 518 (2009)
For these reasons, I would follow the majority opinion‘s rationale as to the facial constitutionality of
Justice TIMMONS-GOODSON joins in this dissenting opinion.
BRIAN L. BLANKENSHIP, THOMAS J. DIMMOCK, AND FRANK D. JOHNSON v. GARY BARTLETT, AS EXECUTIVE DIRECTOR OF THE NORTH CAROLINA STATE BOARD OF ELECTIONS; ROY COOPER, AS ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA; AND NORTH CAROLINA STATE BOARD OF ELECTIONS
No. 455PA06-2
(Filed 28 August 2009)
1. Elections— judicial—districts—equal protection—intermediate scrutiny
A state constitutional equal protection challenge to Wake County Superior Court judicial election districts was remanded for further consideration where plaintiffs demonstrated gross disparity in voting power between similarly situated residents of Wake County. The Equal Protection clause of the North Carolina Constitution requires a degree of population proportionality in superior court districts and a heightened level of scrutiny is required, but the presence of a tension between elections and the judicial role means that the appropriate standard of review is between strict scrutiny and rational basis. Judicial districts will be sustained if the legislature‘s formulations advance important
2. Evidence— public records—elections—Justice Department preclearance submissions—admissibility
The trial court did not err in a judicial elections case in its admission of Administrative Office of the Courts records concerning U.S. Justice Department preclearance. These records clearly fall within
Justice TIMMONS-GOODSON dissenting.
Chief Justice PARKER and Justice HUDSON join in the dissenting opinion.
On discretionary review pursuant to
Akins/Hunt, P.C., by Donald G. Hunt, Jr., for plaintiff-appellants.
Roy Cooper, Attorney General, by Alexander McC. Peters, Special Deputy Attorney General, for defendant-appellees.
BRADY, Justice.
Wake County voters are divided into four districts for purposes of exercising their constitutional right to elect superior court judges. However, the General Assembly gives residents in Superior Court District 10C approximately one-fifth, or only 20%, of the voting power of residents in Superior Court District 10A. Likewise, residents of Superior Court Districts 10B and 10D havе approximately one-fourth, or 25% of the voting power of residents in Superior Court District 10A.
In this case we consider whether the Equal Protection Clause of the North Carolina Constitution applies to the General Assembly‘s
FACTUAL AND PROCEDURAL BACKGROUND
Both parties stipulated before the trial court as to the factual basis of this matter. According to the 2000 United States Census, Superior Court District 10A has a total population of 64,398 residents; District 10B has a total population of 281,493 residents; District 10C has a total population of 158,812 residents; and District 10D has a total population of 123,143 residents. In 1987, pursuant to the then current version of
| Superior Court District | Residents | Number of Superior Court Judges | Residents per Superior Court Judge |
|---|---|---|---|
| 10A | 64,398 | 2 | 32,199 |
| 10B | 281,493 | 2 | 140,747 |
| 10C | 158,812 | 1 | 158,812 |
| 10D | 123,143 | 1 | 123,143 |
Plaintiffs Brian L. Blankenship and Thomas J. Dimmock are licensed attorneys who are qualified to run for the office of superior court judge in their respective districts, 10B and 10C. Plaintiff Frank D. Johnson is a citizen, taxpayer, and registered voter who resides in Superior Court District 10D. On 5 December 2005, by the filing of a complaint and the issuance of a civil summons, plaintiffs commenced suit against the North Carolina State Board of Elections; Gary Bartlett, in his official capacity as Executive Director of the State Board of Elections; and Roy Cooper, in his official capacity as Attorney General of North Carolina. In their complaint, plaintiffs allege that the 1993 amendment to
The trial court expedited the disсovery and motions process and on 8 February 2006, following a two day bench trial, entered a judgment and order in favor of plaintiffs. The trial court concluded that the General Assembly acted arbitrarily and capriciously in creating “the judicial districts for superior court judges assigned to Wake County” and that “[t]he current districting plan for the election of superior court judges allocated to Wake County, North Carolina creates unequal weighing of votes.” Based on the factual findings, the trial court concluded as a matter of law that
Defendants appealed the trial court‘s judgment and order to the Court of Appeals, which held that there is no requirement of population proportionality in state judicial elections, that the trial court failed to consider evidence properly submitted by defendants, and that the trial court erred in finding that the General Assembly acted arbitrarily and capriciously in establishing the superior court districts at issue. This Court allowed plaintiffs’ petition for discretionary review on 9 October 2008.
ANALYSIS
Plaintiffs’ Equal Protection Challenge
[1] We must first determine whether the Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution requires any degree of population proportionality in the districts drawn for the election of superior court judges. Wе conclude that it does.
The Equal Protection Clause of Article I, Section 19 of the State Constitution “prohibits the State from denying any person the equal protection of the laws.” Stephenson v. Bartlett, 355 N.C. 354, 377, 562 S.E.2d 377, 393 (2002). Equal protection “requires that all persons similarly situated be treated alike.” Richardson v. N.C. Dep‘t of Corr., 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). The Equal Protection Clause necessarily operates as a restraint on certain activities of the State that either create classifications of persons or interfere with a legally recognized right. See White v. Pate, 308 N.C. 759, 766-67, 304 S.E.2d 199, 204 (1983)
The right to vote is one of the most cherished rights in our system of government, enshrined in both our Federal and State Constitutions. See
Although federal courts have articulated that the “one-person, one-vote” standard is inapplicable to state judicial elections, there is considerable tension in the jurisprudence, as clearly illustrated by Chisom v. Roemer, 501 U.S. 380 (1991). Chisom first reaffirms that the one-person, one-vote constitutional standard used in legislative and executive branch elections does not apply to judicial elections. Id. at 402 (“[W]e have held the one-person, one-vote rule inapplicable to judicial elections . . . .” (citing Wells v. Edwards, 409 U.S. 1095 (1973))). When the Supreme Court first held the rule inapplicable, it summarily affirmed a district court decision based on the rationale that ” ‘[j]udges do not represent people, they serve people.’ ” Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972) (quoting Buchanan v. Rhodes, 249 F. Supp. 860, 865 (N.D. Ohio), appeal dismissed, 385 U.S. 3 (1966), judgment vacated per curiam, 400 F.2d 882 (6th Cir. 1968)), aff‘d mem., 409 U.S. 1095 (1973). Yet, even in Chisom, the Supreme Court observed that judges were “rеpresentatives” for purposes of the Federal Voting Rights Act. 501 U.S. at 401 (“[I]t seems both reasonable and realistic to characterize the winners [of judicial elections] as representatives of that [judicial] district.“). Moreover, in
The presence of this seeming contradiction is not surprising. Judges are “often called upon to disregard, or even to defy, popular sentiment,” creating a “fundamental tension between the ideal сharacter of the judicial office and the real world of electoral politics.” Chisom, 501 U.S. at 400. That fundamental tension is manifested in the dueling conclusions that judges both are and are not representatives of the people. We agree with the Supreme Court that this tension “cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for elected office.” Id. at 400-01. Rather than wholly ignoring that tension, this Court acknowledges it by holding that our State‘s Equal Protection Clause requires a heightened level of scrutiny of judicial election districts.
At the same time, we readily recognize that many important interests are relevant to the crafting of judicial districts aside from mere population numbеrs. For instance, “[c]onvenience is an essential factor in arranging an effective judicial system, since it is often necessary for a judge to hear emergency measures.” Buchanan, 249 F. Supp. at 864. The importance of this interest is reflected by the language used in our State Constitution requiring the legislature to divide the State into a “convenient number” of judicial districts.
We conclude that judicial elections have a component that implicates the fundamental right to vote and a separate component that is
Federal equal protection analysis provides us with another framework under which plaintiffs’ claims should be decided. Federal courts have applied intermediate scrutiny in cases involving semisuspect classes, such as distinctions based upon gender, Craig v. Boren, 429 U.S. 190, 197 (majority), 210-11 (Powell, J., concurring) (1976); undocumented alien children, Plyler, 457 U.S. at 223-24, 230; and nonmarital children, Clark v. Jeter, 486 U.S. 456, 461 (1988). In Plyler, the Supreme Court determined the constitutionality of a Texas statute and school district policy that excluded funding for children who were not “legally admitted” into the United States and also authorized local school districts to deny enrollment of such students in the public schools. 457 U.S. at 205. The Court noted that illegal immigrants are not a suspect class and public education is not a fundamental right guaranteed by the United States Constitution. Id. at 223. After asserting that public education is not a “right,” the Court stated: “But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Id. at 221. Thus, considering the importance of education and how the statute at issue “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status,” id. at 223, the Court held that the statute “can hardly be considered rational unless it furthers some substantial goal of the state,” id. at 224.
The dissenting opinion in Plyler recognized that the Court had “patch[ed] together bits and pieces of what might be termed [a] quasi-suspect-class and quasi-fundamental-rights analysis.” Id. at 244 (Berger, C.J., dissenting). Other federal courts have recognized that “quasi-fundamental rights” are subject to a higher level of scrutiny than rational basis and a lower level of scrutiny than strict scrutiny. See United States v. Harding, 971 F.2d 410, 412 n.1 (9th Cir. 1992) (stating that the Supreme Court in Plyler “recognized that infringements on certain ‘quasi-fundamental’ rights, like access to public education, also mandate a heightened level of scrutiny“), cert. denied, 506 U.S. 1070 (1993); Lowrie v. Goldenhersh, 716 F.2d 401, 411 (7th Cir. 1983) (stating that intermediate level review is “limited to cases involving quasi-fundamental rights or quasi-suspect classes” (citing John E. Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee—Prohibited, Neutral, and Permissive Classifications, 62 Geo. L.J. 1071, 1082 (1974))); Alma Soc‘y Inc. v. Mellon, 601 F.2d 1225, 1234 n.18 (2d Cir.) (noting that quasi-fundamental interests are subject to intermediate scrutiny), cert. denied, 444 U.S. 995 (1979); Sam v. United States, 682 F.2d 925, 935 (Ct. Cl. 1982) (stating that rational basis is the proper standard when neither fundamental nor quasi-fundamental rights are at stake), cert. denied, 459 U.S. 1146 (1983); Houk v. Furman, 613 F. Supp. 1022, 1029 n.3 (D. Me. 1985) (stating that commentators have noted that the application of intermediate scrutiny is limited “to cases involving ‘a quasi-fundamental right or an “almost” suspect classification’ ” (quoting Martin H. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759, 773 (1977))); Felix v. Milliken, 463 F. Supp. 1360, 1370 (E.D. Mich. 1978) (recognizing that the Supreme Court in Craig v. Boren “arguably put legislatures on notice that a substantially closer relationship between the means chosen and the goals sought to be promoted by virtue of those means would be required in the future, at least where ‘quasi-suspеct’ or ‘quasi-fundamental’ rights were affected“); Frederick L. v. Thomas, 408 F. Supp. 832, 836 (E.D. Pa. 1976) (recognizing that education is a “quasi-fundamental interest“).
The North Carolina Constitution calls for the election of superior court judges and thus guarantees an individual right of the people to vote in those elections.
Federal jurisprudence offers an analogous situation in the realm of free speech. Individuals have challenged laws on the theory that regulation of certain types of conduct impermissibly restricts the First Amendment right to free speech. See, e.g., United States v. O‘Brien, 391 U.S. 367, 370, 376-77 (1968) (upholding a statute banning destruction of selective service cards when defendant asserted First Amendment right to protest the draft by doing so). Acts of symbolic speech, or expressive conduct, combine speech and nonspeech elements in the same course of conduct. See id. at 376. The restriction on speech implicates fundamental First Amendment rights, even though regulation of nonspeech conduct is ordinarily subject only to rational basis review.
The Supreme Court held that when protected speech is combined with generally unprotected conduct, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. The Court then stated the level of scrutiny to be applied:
[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
391 U.S. at 377. The Supreme Court has referred to this formulation as intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 185 (1997). In Turner, the Supreme Court, citing O‘Brien, stated succinctly that an act reviewed under intermediate scrutiny “will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than nec-
Expressive conduct, which combines elements of a fundamental right with conduct generally subject to regulation reviewed only for a rational basis, is analogous to judicial elections, in that such elections combine representative and nonrepresentative aspects. We therefore apply a similar stаndard of intermediate scrutiny when considering equal protection challenges to judicial districts. Judicial districts will be sustained if the legislature‘s formulations advance important governmental interests unrelated to vote dilution and do not weaken voter strength substantially more than necessary to further those interests.
We have already noted several important governmental interests, but decline to fashion an exhaustive list. In addition to compliance with federal voting rights laws, see Chisom, 501 U.S. at 404, legitimate factors for the legislature‘s consideration include geography, population density, convenience, number of citizens in the district eligible to be judges, and number and types of legal proceedings in a given area. On remand, the parties are free to present other interests.
We emphasize that a plaintiff must make a prima facie showing of considerable disparity between similarly situated districts in order to trigger constitutional review. In the instant case, plaintiffs have demonstrated gross disparity in voting power between similarly situated residents of Wake County. In Superior Court District 10A, the voters elect one judge for every 32,199 residents, while the voters of the other districts in Wake County, 10B, 10C, and 10D, elect one judge per every 140,747 residents, 158,812 residents, and 123,143 residents, respectively. Thus, residents of District 10A have a voting power roughly five times greater than residents of District 10C, four and a half times greater than residents of District 10B, and four times greater than residents of District 10D. No other subdivided district in the State сomes close to the degree of disproportionality found in District 10. Even comparing District 10A with dissimilar districts throughout the State, the voting strength disparity between District 10A and the other subdivisions of District 10 is unique. According to documents filed with this Court, District 10A has the lowest resident-to-judge ratio of any district in the State, while District 10C has the second highest resident-to-judge ratio.1 No other districts that divide
In sum, plaintiffs have made the required prima facie showing, triggering the State‘s duty to demonstrate significant interests that justify the legislature‘s subdivisions within District 10 and to show that the disparity in voter strength is not substantially greater than necessary to accommodate those interests. In the event the trial court finds a violation of state equal protection law, it should defer initially to the General Assembly for resolution. See, e.g., Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d 365, 395 (2004) (recognizing “our limitations in providing specific remedies for [constitutional] violations committed by other government branches in service to a subject matter . . . that is within their primary domain“).
Accordingly, we remand this case to the Court of Appeals for further remand to the trial court with orders to hold a new hеaring and determine whether the State can meet its burden as set forth in this opinion.
Admission of the Reinhartsen Affidavit and Exhibits
[2] Defendants filed the affidavit of Paul Reinhartsen, a Research Specialist for Legal Services for the Administrative Office of the Courts, with the trial court in support of their position. This affidavit states that Reinhartsen “maintain[s] and ha[s] access to previous submissions of the Administrative Office of the Courts” to the United States Department of Justice for preclearance under Section 5 of the Voting Rights Act. Attached to Reinhartsen‘s affidavit was what is described in the affidavit as “a true and accurate copy of the preclearance submission of 1993 Sess. Laws C. 321, §§ 200.4, 200.5 and 200.6,” along with “related responses from the United States Department of Justice.”2
The Court of Appeals held that the exhibits attached to Reinhartsen‘s affidavit were admissible under Rule 803(8) of the North Carolina Rules of Evidence, and we agree. Rule 803(8) provides:
Public Records and Reports.—Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law-enforcement personnel, or (C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Thus, the records kept by the Administrative Office of the Courts concerning its submissions to the United States Department of Justice clearly fall within the purview of Rule of Evidence 803(8) as public records. Accordingly, the records are admissible insofar as they are relevant. See
After concluding the affidavit and exhibits were admissible under Rule 803(8), the Court of Appeals further determined that the trial court erred by admitting Exhibit A to the affidavit “on only a limited basis.” Blankenship, 184 N.C. App. at 334, 646 S.E.2d at 589. On this point, we disagree because the trial court transcript does not provide adequate support for this determination.
The transcript reflects that plaintiffs moved the trial court to strike the affidavit and attached exhibits on the grounds that the documents were hearsay and many statements contained in the exhibits were opinions expressed without the declarant‘s personal knowledge of matters underlying those opinions. Throughout the conversation with counsel for both parties regarding the affidavit and attached exhibits, the trial court indicated at least three times that it was
Notably, the trial court‘s ultimate ruling was that the evidence at issue was admitted. In expressing caution over some of the material, the trial court did not admit the evidence only on a limited basis. Rather, the trial court recognized nothing more than what Rule 803(8) acknowledges already in its closing phrase—some “sources of information or other circumstances” may “indicate [a] lack of trustworthiness” in certain public records and reports.
Defendants seem to argue that Rule 803(8) required the trial court to admit the evidence and that the admitted evidence then inexorably compelled the trial court to make findings of fact consistent with defendants’ interpretation of that evidence. We disagree. Defendants may attack the trial court‘s findings of fact as being unsupported by competent evidence or challenge whether those factual findings in turn support the trial court‘s ultimate conclusions of law, see, e.g., State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citations omitted); however, defendants’ insistence that the trial court improperly admitted evidence only on a limited basis mischaracterizes the transcript before us.
CONCLUSION
Because the Equal Protectiоn Clause of the North Carolina Constitution requires intermediate scrutiny of districts drawn for the election of superior court judges and because we find that the trial court properly considered the evidence before it, we reverse the decision of the Court of Appeals and remand the case to the Court of Appeals for further remand to the trial court for further proceedings not inconsistent with this opinion.
Justice TIMMONS-GOODSON dissenting.
Because I conclude that the election of superior court judges does not implicate the equal protection principle of “one person, one vote,” I would hold that the judicial districting plan for Wake County set forth in
It should first be noted “that ‘this Court gives acts of the General Assembly great deference, and a statute will not be declared unconstitutional under our Constitution unless the Constitution clearly prohibits that statute.’ ” Rhyne v. K-Mart Corp., 358 N.C. 160, 167, 594 S.E.2d 1, 7 (2004) (quoting In re Spivey, 345 N.C. 404, 413, 480 S.E.2d 693, 698 (1997)). “Accordingly, there is a strong presumption that the statute at issue is constitutional.” Id. at 168, 594 S.E.2d at 7 (citing Stephenson v. Bartlett, 355 N.C. 354, 362, 562 S.E.2d 377, 384 (2002)); see also Pender County v. Bartlett, 361 N.C. 491, 497, 649 S.E.2d 364, 368 (2007) (“An act of the General Assembly is accorded a ‘strong presumption of constitutionality’ and is ‘presumed valid unless it conflicts with the Constitution.’ ” (emphasis in original) (quoting Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam))).
The majority determines that the Equal Protection Clause of the North Carolina Constitution requires population proportionality in superior court districts. I disagree on several grounds.
First and foremost, superior court judges do not serve in a represеntative capacity, and their election therefore does not implicate the “one person, one vote” principle of equal protection. Population proportionality is important in legislative elections as it allows all voters to “enjoy the same representational influence or ‘clout.’ ” Stephenson, 355 N.C. at 377, 562 S.E.2d at 393. Legislators use their influence to represent voters in a greater legislative body. Accordingly, voters from a district that elects three legislators have more influence than voters in districts with only two representatives. But judges have no similar representational function. Voters do not elect a judge to “represent” them—that is, to serve as their voice in government and advance thеir interests. See, e.g., New York State Ass‘n of Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 153 (S.D.N.Y. 1967) (“The state judiciary, unlike the legislature, is not the organ
Because judges serve the general public in a nоnrepresentative capacity, there is no unequal protection among the voters of different districts that would trigger equal protection concerns:
“[T]he 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 аrise 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, 335 F. Supp. at 931 (quoting Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964)).
The second ground upon which I dissent is that the plain language of our Constitution, which expressly provides for flexibility in fashioning judicial districts, supports the judicial districting plan set forth in
Our Constitution anticipates that the needs of the state will change over time. It specifically provides that “[t]he General
Assembly shall, from time to time, divide the State into a convenient number of Superior Court judicial districts . . . .” N.C. Const. art. IV, § 9(1) (emphasis added). Contrary to the plaintiff‘s argument, there is no prohibition in our Constitution against the splitting of counties when creating superior court districts. Instead, our Constitution only requires that any division of the state into judicial districts be “convenient.”
In contrast to the flexibility granted under Article IV, the language in our Constitution regarding the election of representatives and senators is much more specific, see
I must also note that the superior court division is a single unified court, having statewide jurisdiction, see
Finally, the majority‘s determination that principles of equal protection require population proportionality in judicial districts is contrary to every other jurisdiction that has considered this issue.
The numerous courts which have been presented with judicial election cases are in rare unanimity on this point. Judicial officers are not subject to the one person-one vote principle and therefore a state‘s choice regarding the method of electing its judiciary is not subject to an equal protection challenge.
Given the lack of equal protection concern and the well-established presumption in favor of the constitutionality of legislative acts, I would hold that
Chief Justice PARKER and Justice HUDSON join in this dissenting opinion.