Three-Judge Panels for Constitutional Challenges

I’ve been asked several times about the new requirement that facial challenges to the constitutionality of state statutes be heard by a three-judge panel in Wake County. Does the requirement mean that facial challenges to statutes regarding criminal procedure must be heard in Raleigh? (As an example, consider State v. Thompson, 349 N.C. 483 (1998), where the defendant mounted a facial challenge to the special pretrial release procedures for domestic violence cases set forth in G.S. 15A-534.1.) What about facial challenges to substantive criminal laws, like State v. Whiteley, 172 N.C. App. 772 (2005), where the defendant presented a facial challenge to G.S. 14-177, the crime against nature statute? The answer to both questions is no, as explained below.

The new requirement. For some time, G.S. 1-267.1 has provided for “a three-judge panel of the Superior Court of Wake County” to hear redistricting cases. Section 18B.16.(a) of the 2014 budget bill amends the statute to require that, “[e]xcept as otherwise provided . . . any facial challenge to the validity of an act of the General Assembly” must be transferred to Wake County and heard by a three-judge panel. The three judges are to be resident superior court judges, selected by the Chief Justice and drawn from different regions of the state.

Lack of application to criminal cases. The bill adds new subsection (d) to the statute, which provides that “[t]his section applies only to civil proceedings. Nothing in this section shall be deemed to apply to criminal proceedings, to proceedings under Chapter 15A of the General Statutes, [or] to proceedings making a collateral attack on any judgment entered in a criminal proceeding.” Perhaps that’s simply a nod to practicality, given the frequency of facial challenges to statutes in criminal cases. Or perhaps the General Assembly is concerned mainly with civil cases because of the recent history of civil challenges to the legislature’s actions. (NC Policy Watch briefly notes that history here in the course of a piece that is critical of the new requirement.) In any event, the language is broad enough to exclude both criminal cases and many related proceedings like motions for appropriate relief.

Application to civil cases challenging criminal laws. The exclusion doesn’t appear to cover civil cases challenging criminal laws or seeking injunctions against their enforcement, so those would need to be heard in Raleigh before a panel. In recent years, civil cases of that type have been filed in connection with gun rights and electronic sweepstakes. If readers have thoughts about other types of cases that might be subject to the three-judge panel requirement and that would be of interest to participants in the criminal justice system, please post a comment. Some sex-offender related litigation might qualify as civil, I suppose. Thoughts about the wisdom and legality of the three-judge panel provision are welcome too. I haven’t looked into those issues much in light of the weak connection between the provision and the criminal law.

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