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North Carolina's Constitution of 1776 authorized a Supreme Court of Law and Equity and established life-long terms for its judges. The constitution, however, omitted further specifications for such a court, and the design of the state's judiciary was left to the legislature. In 1777 the General Assembly simply restored the colonial Court Act of 1767 that called for separate judicial districts, and it assigned the districts to three superior court judges. By 1782, these courts had been given jurisdiction over equity matters in addition to cases at law. In practice, the terms supreme court and superior court were used interchangeably in the period following the Revolutionary War, and the legislature made no effort to develop a separate and higher court of last resort. By the end of the eighteenth century, judges of the district superior courts were encountering numerous unresolved and complex suits, and it was increasingly apparent that the judges needed opportunities for conferences with their counterparts from other districts. In response to these and other perceived weaknesses in the state's judiciary system, the General Assembly of 1799 established a Court of Conference. This law authorized judges of the superior courts of law and equity to meet twice a year at Raleigh to resolve all undetermined cases at law and equity that had arisen on the judicial circuits. The judges were also authorized to appoint a clerk of "skill and probity" to record the decisions of the judges. In 1801 the legislature renewed the legislation establishing this court. The court was to have a clerk to record the proceedings and forward a copy to anyone requesting a transcript as well as to the district court from which the case was referred. In 1804 the General Assembly declared the Court of Conference to be a permanent court of record, thus obviating the practice of returning reports of cases to the district courts. In 1805 the legislature changed the court's name to the Supreme Court of North Carolina, gave it jurisdiction over matters of both law and equity, and authorized the court to call for a jury when it deemed it necessary. The following year the judges began to hold two sessions of the court in Raleigh. Also in 1806, the district superior courts were dissolved and their jurisdiction was divided among the newly established county superior courts of law and the county courts of equity. Still performing duties as trial judges, the members of the Supreme Court rode six circuits of ten counties each and held superior court in each county. In 1810 the legislature established the position of chief justice, to be chosen by the judges from among their own number and to preside over Supreme Court proceedings. The judges were directed to write their opinions and deliver them in open court, including the reasons on which the judgments were founded. Although the court was permitted to hear appeals during this era, there still was no conception of a separate appellate body of judges hearing a case that none had heard previously at the superior court level. Defects in this court system included placing judges in the position of passing upon their own decisions and requiring them to travel to Raleigh when they were already overworked in their own judicial districts. Legislation enacted in 1818 solved problems inherent in the previous system by creating a separate, and full-time court, and by designating an independent body of judges to review cases previously decided at the superior court level. Regardless of whether this new tribunal was the Supreme Court contemplated by the 1776 Constitution, it is generally seen as the foundation of the present Supreme Court of North Carolina in releasing its members from their duties as trial judges and authorizing it to exercise exclusive appellate jurisdiction over questions of law and equity. The enabling act, which became effective in 1819, provided for three judges to be elected by the Senate and House of Commons and commissioned by the governor for unspecified terms. The judges were authorized to appoint one of their members as the chief justice and they were relieved of attendance on the superior court circuits. Generally, the Supreme Court remained unchanged until 1868, when the constitution of that year made fundamental changes to the judicial structure of the state. The Constitution of 1868 abolished the distinctions between law and equity proceedings, the state's principal holdover from the medieval English legal system. As a result of an extensive revision of the constitution's judicial article, the Supreme Court became a "constitutional" tribunal based on the fundamental law of the state rather than on legislative enactment. The court was immediately affected in that the power to select judges (now called justices) was transferred from the General Assembly to the voters of the state, terms of service were set at eight years, and the number of justices increased to five. In 1875 the General Assembly called for a constitutional convention, as it was authorized to do under the Constitution of 1868. The convention gave the legislature authority to determine the jurisdiction of courts inferior to the Supreme Court, and amendments to the constitution restored the number of justices to three. (A constitutional amendment approved by the electorate in 1888 returned the court membership to five.) The duties of the Supreme Court were increased several times during the decades of the 1870s and 1880s. Under legislation enacted in 1870, the court was authorized to license all qualified persons to practice law in the state. The General Assembly of 1871-1872 stipulated that the governor and justices of the Supreme Court appoint the trustees of the Supreme Court Library. Under terms of that act, the clerk of the Supreme Court would have charge of the library and operate it according to rules and regulations established by the trustees. In 1883 the legislature directed the justices of the Supreme Court to serve as the library's trustees, and were directed to employ a librarian. The librarian continues to the present as an official of the court. Over a period of decades, the legislature made numerous revisions in procedures surrounding the preparation for publication of the bound volumes of court decisions known as the NORTH CAROLINA REPORTS. The General Assembly of 1871-1872 specified that the duty of reporting the decisions of the Supreme Court belonged to the attorney general. In 1893, however, the legislature authorized the justices of the Supreme Court to employ their own reporter, and gave the justices the option of publishing their opinions in full only when they deemed it necessary. By 1905 the General Assembly had placed responsibility for the reports under the control of the court, a function previously under the secretary of state. Subsequent legislatures enacted varied specifications regarding the printing and reprinting of reports, eventually placing the responsibility for reprints under the Office of the Secretary of State in 1917. In 1929 the General Assembly required that all reports be reprinted without alteration from the original edition, except as directed by the Supreme Court. In 1933 the General Assembly approved a revised state constitution that would have increased the membership of the North Carolina Supreme Court and would have given the justices additional authority in making rules of practice and procedure in the courts inferior to the Supreme Court. The proposed constitution of 1933, however, was blocked by a technicality raised in an advisory opinion of the Supreme Court, and that document was never presented to the electorate. From that time until a new constitution was approved in 1971, the Supreme Court underwent significant changes through a combination of legislative actions and constitutional amendments approved by voters. Legislation enacted in 1933 provided for the establishment of the North Carolina State Bar as a state agency and named as its honorary members the chief justice and associate justices of the Supreme Court. The same law transferred from the Supreme Court to the newly created Board of Law Examiners the function of examining applicants and licensing them to practice law in the state. The law further provided that the rules and regulations previously prescribed by the Supreme Court would remain in effect until superseded by law, and that the chief justice of the Supreme Court would serve on the Board of Law Examiners as its chairman. This provision was amended during the same session; the chairman was to be "such member of the Supreme Court...as that court...may select and commission." In an amendment to the constitution ratified by voters in November 1935, the General Assembly was authorized to increase the number of associate justices of the Supreme Court to not more than six, when the work of the court so required, and to permit the court to make regulations as to which cases could be dispatched by a division of the justices and which required hearings by the full court. In 1937 the General Assembly set the number of associate justices at six, effective 1 July 1937. Under provisions of that act, four justices constituted a quorum for transactions of the court. As early as 1955, there was recognition among certain citizens that the state's court system should be restructured to bring uniformity to its various levels and establish a centralized judicial administration. At the recommendation of Governor Luther Hodges and Chief Justice M. V. Barnhill, the North Carolina Bar Association sponsored a study that was submitted to the 1959 General Assembly. This study proposed the need for a unified court system, and eventually led to a restructuring of the courts. In 1961 the General Assembly enacted legislation amending the constitution under a new Judicial Department Article, subject to the approval of the electorate. The proposed amendments, approved in the general election of 1962, provided for a General Court of Justice constituting a unified judicial system and consisting of the following divisions: appellate, superior court, and district court. (The term General Court of Justice was a symbolic and historical reference to North Carolina's General Court, 1670-1754, whose jurisdiction extended throughout the colony.) The following year, in 1963, the General Assembly passed a joint resolution setting up a continuing Courts Commission to recommend legislation necessary to implement in full the Judicial Department Article. The Courts Commission made two major recommendations that were submitted to the 1965 legislature. One of these involved the creation of a unified system of district courts and the creation of an Administrative Office of the Courts (AOC) to assist with the administrative functions of all courts in the system, including the Supreme Court. The AOC would also help facilitate an orderly transition from the prevailing system to a uniform system within a given period of time. The director and assistant director of the AOC would be appointed by the chief justice to the Supreme Court to serve at his pleasure for terms of unspecified length. The second proposal by the Courts Commission was for an intermediate court of appeals to relieve pressure on the Supreme Court and to share its appellate caseload. This proposition was passed as an amendment to the constitution and ratified by the voters in 1965. Subsequently, the 1967 General Assembly established the Court of Appeals within the Appellate Division for the purpose of hearing all appeals, except those involving capital crimes and life imprisonment cases. Under terms of this legislation, the Supreme Court was authorized to appoint a reporter to prepare for publication the opinions of both the Supreme Court and the Court of Appeals. The legislation also specified that the Supreme Court Library would serve the entire Appellate Division of the General Court of Justice and would also assist the trial divisions of the General Court of Justice, the various state agencies, and the general public under regulations promulgated by the librarian. The Supreme Court continued to appoint the librarian, to serve at its pleasure. Since the inauguration of the Court of Appeals in 1967, the Supreme Court has had the authority to review cases already heard and decided by the Court of Appeals, if at least three justices wish to do so. The Supreme Court is obligated to grant the following types of cases a second appellate hearing: those cases decided by the Court of Appeals that involve a substantial constitutional issue; those involving rates set by the Utilities Commission; and those cases decided by a divided Court of Appeals. The Supreme Court may also certify certain cases for immediate review, thus bypassing the Court of Appeals when it determines that a case is unusually important. Thus, the Supreme Court has continued its traditional role of deciding major questions of law, particularly those that have arisen in the lower courts and matters before state administrative agencies. The impetus for change in the state's judiciary has continued, even following the major restructuring efforts of the early 1960s. In 1967 Governor Dan K. Moore recommended to the North Carolina State Bar that it study the possible need to revise the constitution, again in response to changing conditions and the future needs of state government. Subsequently, the State Bar and the North Carolina Bar Association formed the North Carolina State Constitution Study Commission as a joint responsibility of the two organizations. Under the chairmanship of former chief justice Emery B. Denny, the study commission presented to the 1969 General Assembly a series of recommended amendments deemed too numerous to be submitted to voters as independent propositions. Those regarded as fundamental to the question of state government, and non-controversial in nature, were incorporated into a revised constitution and submitted to the voters in November, 1970. This document was approved and took effect the following year as the Constitution of 1971. The document incorporated into Article IV, with no substantive changes, the Judicial Department Article from the 1960s. The State Constitution Study Commission recommended, however, that the 1971 General Assembly propose and submit to the electorate new constitutional amendments, including several involving the Supreme Court. Consequently, the constitution was amended in 1972 to allow the Supreme Court to censure or remove judges of the General Court of Justice. (Subsequent implementing legislation during the 1970s provided for disciplinary action based upon the recommendation of a Judicial Standards Commission.) The Constitution of 1971 was also amended in 1972 to require the legislature to prescribe maximum age limits for service as a justice or judge. During the decade of the 1980s there were several additional changes to the Constitution of 1971 affecting the justices of the Supreme Court. In 1980 voters approved an amendment requiring justices and judges to be duly authorized to practice law prior to election or appointment. In 1982 the electorate voted to give the Supreme Court authority to review, when authorized by law, all direct appeals from the North Carolina Utilities Commission. In recent years there have been persistent but unsuccessful efforts to have Supreme Court justices selected on "merit" and approved by the governor instead of being elected by popular, partisan vote. Although proposed amendments to the state constitution have received at various times the backing of a majority of members of the Senate, these efforts have not yet won the three-fifths majority in each house required to submit constitutional amendments to a vote of the people. REFERENCES: P.L., 1777, 2d sess., c. 2. P.L., 1782, c. 11. P.L., 1799, c. 4. P.L., 1801, c. 12. P.L., 1804, c. 18. P.L., 1805, c. 1. P.L., 1810, c. 2. P.L., 1818, cc. 1, 2. P.L., 1868-69, c. 46. P.L., 1869-70, c. 131. P.L., 1871-72, c. 112. P.L., 1876-77, c. 255, s. 12. P.L., 1883, c. 100. P.L., 1885, c. 309. P.L., 1887, c. 212. P.L., 1893, c. 379, ss. 4-5. P.L., 1905, c. 400. P.L., 1907, c. 503. P.L., 1917, cc. 201, 292. P.L., 1923, c. 176. P.L., 1929, c. 30. P.L., 1933, cc. 210, ss. 1-2, ss. 10-11; 331. P.L., 1937, c. 16. P.L., 1945, c. 790. S.L., 1961, c. 313. S.L., 1963, cc. 840; 951; Resolution 73. S.L., 1965, cc. 310, 877. S.L., 1967, c. 108. S.L., 1969, cc. 44, 1190, 1258. S.L., 1971, cc. 451, 560. S.L., 1973, c. 89. S.L., 1979, cc. 486, 638. S.L., 1981, c. 803. G.S. 7A-1 through 7A-39.4 [1993] North Carolina Constitution of 1776. North Carolina Constitution of 1868, Art. IV. Amendments of 1935, II. North Carolina Constitution of 1971, Art. IV. Amendments of 1971, Art. IV. Administrative Office of the Courts. NORTH CAROLINA COURTS, 1991- 1992: ANNUAL REPORT. Raleigh, 1992. Pp. 9-14. Battle, Kemp P. AN ADDRESS ON THE HISTORY OF THE SUPREME COURT. D elivered in the Hall of the House of Representatives, February 4, 1889. Raleigh: Edwards & Broughton, 1889. Brannon, Joan G. THE JUDICIAL SYSTEM IN NORTH CAROLINA. Raleigh: Administrative Office of the Courts, 1989. Pp. 1-3. Brinkley, Martin H. "The Supreme Court of North Carolina: A Brief History." In Office of the Secretary of State. NORTH CAROLINA MANUAL, 1993-1994. Edited by Lisa A. Marcus. Raleigh, 1994. Pp. 604-610. Britt, David M. "Update of the History of the Supreme Court of North Carolina." NORTH CAROLINA REPORTS 326 (1990): 839-857. Clark, Walter. "History of the Supreme Court of North Carolina." NORTH CAROLINA REPORTS 177 (1919): 617-635. Lefler, Hugh Talmage, and Albert Ray Newsome. THE HISTORY OF A SOUTHERN STATE: NORTH CAROLINA. Chapel Hill: University of North Carolina Press, 1954. Pp. 291-293. North Carolina State Constitution Study Commission. REPORT OF THE NORTH CAROLINA STATE CONSTITUTION STUDY COMMISSION. Raleigh, 1968. Office of the Secretary of State. NORTH CAROLINA MANUAL, 1991-1992. Edited by Julie W. Snee. Raleigh, 1992. Pp. 459-460. Patton, James W., ed. MESSAGES, ADDRESSES, AND PUBIC PAPERS OF LUTHER HARTWELL HODGES, GOVERNOR OF NORTH CAROLINA, VOLUME II, 1958-1959. Raleigh: Council of State, 1962. P. 31. ---. MESSAGES, ADDRESSES, AND PUBLIC PAPERS OF LUTHER HARTWELL HODGES, GOVERNOR OF NORTH CAROLINA, VOLUME III, 1959-1960. Raleigh: Council of State, 1963. Pp. 23, 47-51, 56, 96, 577-578. Sanders, John L. CONSTITUTIONAL REVISION AND COURT REFORM: A LEGISLATIVE HISTORY, A SPECIAL REPORT. Chapel Hill: Institute of Government, University of North Carolina, 1959. ---. "The Constitutional Development of North Carolina." In Cheney, John L., Jr., ed. NORTH CAROLINA GOVERNMENT, 1585- 1974: A NARRATIVE AND STATISTICAL HISTORY. Raleigh: Department of the Secretary of State, 1975. Pp. 603-657. ---. "Our Constitutions: A Historical Perspective." In Office of the Secretary of State. NORTH CAROLINA MANUAL, 1991-1992. Edited by Julie W. Snee. Raleigh, 1992. Pp. 603-657. State Archives. Division of Archives and History. NORTH CAROLINA COURTS OF LAW AND EQUITY PRIOR TO 1868, by George Stevenson and Ruby D. Arnold. Archives Information Circular, No. 9. Raleigh, 1977. Stevenson, George. "Higher Court Records." In Leary, Helen F. M., and Maurice R. Stirewalt, eds. NORTH CAROLINA RESEARCH: GENEALOGY AND LOCAL HISTORY. Raleigh: North Carolina Genealogical Society, 1980. Pp. 317-331. |
