For the first time in 40 years, North Carolina voters cast their ballots for judges without any information about pending judicial ethics complaints. This bizarre situation resulted from the last-minute passage of House Bill 562, a bill subjected to little public scrutiny or discussion.
The problems with this bill are so great that for the first time in its history, the North Carolina Bar Association – in a letter signed by all living past presidents – asked the governor to veto it. Although the legislative vote indicated that a veto could be sustained, Gov. Pat McCrory signed the bill into law.
House Bill 562 did three things that will erode the integrity of our courts. It:
• Placed all proceedings before the Judicial Standards Commission under a blanket of secrecy. The North Carolina Judicial Standards Commission was created in 1973 to ensure public confidence in our judicial system and the integrity of our judges. Under House Bill 562, even the fact of a complaint is now “confidential” until “issuance of a public reprimand, censure, suspension or removal by the Supreme Court.”
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• Put the Supreme Court in charge of disciplining itself. Previously, disciplinary action against members of the Supreme Court was handled by a panel from the Court of Appeals. Now, the Supreme Court handles discipline of its own members.
• Removed the commission’s ability to resolve a matter with the issuance of a public reprimand. Tying the commission’s hands in this way means that the commission, which has limited resources, will be forced to take minor violations through the time and expense of two formal hearings, one before a disciplinary panel and the other before the Supreme Court, both of which will be closed to the public. The alternative is to drop the investigation of minor, but important, infractions, meaning that the public is not protected at all.
This change in the law is antithetical to the principles of our system of government. Trials and hearings, whether involving a criminal defendant or a judge, must be fair to both the victim and defendant.
Permitting the Supreme Court to discipline itself does not have the ring of fairness. If a justice on the Supreme Court violates the Code of Judicial Standards while running for re-election or fails to recuse himself or herself appropriately, the Supreme Court itself will be conducting the hearing. And the public will not know about the fact of the proceeding unless and until the court decides if the justice accused is to be disciplined. I cannot imagine that the members of our court find this a palatable or proper process.
A secret trial behind closed doors is the hallmark of a totalitarian government (if indeed any trial is allowed at all), not a democracy. The Sixth Amendment to the U.S. Constitution requires that an accused, no matter his or her status, have a public and open trial. This presumption that our courts will be open, subject to very limited exceptions, also finds roots in the First Amendment. Under the First Amendment, the press and public must be allowed reasonable access to view proceedings in our courts.
In the name of the First Amendment, we now permit every rich person or corporation with a bee in its bonnet to spend millions destroying the good name of an incumbent judge and be largely insulated from liability under the public figure exception of Sullivan v. New York Times. And now our voters are barred from getting the facts.
Why should we continue to select judges by election when voters must rely on 30 seconds of paid for sound bites, not facts, to make their choices? Do we have a right to know what is happening in hearings held by the Judicial Standards Commission and the Supreme Court?
Will we have a fair system if we allow the accused and his or her colleagues on the Supreme Court (who are likely to be witnesses) to decide whether he or she is guilty? What will the public think of one standard of justice for them and another for our Supreme Court?
We have a fine judiciary with only 50 judges being disciplined during the 40 years the commission has been in existence. These questions, however, make plain that the new process places the reputation of our judiciary at risk. We should act to rectify the changes contained in House Bill 562 before the damage is done. And we should re-examine how we go about choosing our judges in the first place.
Catharine Arrowood is president of the North Carolina Bar Association.