Judges are used to making decisions and announcing them to the court.
But on one of the most fundamental questions facing the North Carolina courts this year — whether the state should abandon the election of judges and move toward an appointment process to decide who sits on the bench — few of the state’s sitting judges have revealed their ultimate verdict.
That question hangs over the judiciary as lawmakers propose change after change to their branch of government — a branch that was designed to be independent from the legislative and executive offices whose laws and policies they can strike down if they run afoul of the state or federal Constitutions.
“Active judges can’t speak out and can’t complain,” recently retired Wake County Judge Donald Stephens said at a recent forum. “They can’t say the legislature is overreaching; they can’t call the legislature’s hand. Active judges are easy targets for a legislature intent on getting their attention, intent on influencing their decisions and intent on coercing their support.”
The North Carolina Association of District Court Judges has polled its 272 members on whether they favored a system in which judges were selected instead of elected and the results returned in mid-November show that 69 percent said they supported holding elections in North Carolina. But the organization has not yet issued an official statement, citing a lack of details on how a proposed amendment to the Constitution would be worded.
When asked whether lawmakers or the governor should play a role in the appointment process the judges expressed an even stronger view, said Joe Buckner, the chief district court judge for Orange and Chatham counties and a member of the association’s Board of Governors.
More than 96 percent of the judges were opposed to giving the lawmakers a role in appointing judges and 85 percent were against a system that would require legislative confirmation of the appointees, Buckner said, adding that the association has yet to take an official position on any proposal.
The judges had almost as strong an opposition to giving the governor appointment power, with nearly 84 percent against the idea.
“The thinking was that the legislature already gets to pick the jurisdictional subject matter, the political boundaries, the term of office, the salary and determine what seats exist,” Bucker said in a recent telephone interview. “Giving them appointment authority is just too much authority in one body.”
There has been much focus by lawmakers over the past year on the courts. In addition to talking about changing the process for how judges get to the bench, the lawmakers have weighed vast changes to election districts that have determined the state’s 272 district court judges, 109 superior court judges and elected district attorneys.
Questions linger as candidates are lining up to run for judicial seats while not knowing whether there even will be elections.
Anita Earls, a Democrat and head of the Southern Coalition for Social Justice which has fought lawmakers in court in challenges to redistricting plans and election law overhauls that included a voter ID provision, announced last month that she plans to run for the one state Supreme Court seat that’s on the 2018 ballot.
Barbara Jackson, a Republican, holds the seat now. If the voters approved an amendment to do away with elections and set up a retention election system, as has been talked about by some lawmakers, Jackson would not face any opponents unless the voters decided not to keep her for another term.
‘We do not have constituents’
In recent weeks, there has been an effort by former judges and other advocates for fair courts to educate the public about the potential impact of all the changes proposed.
Stephens, a Democrat who retired on Nov. 1 as Wake County’s chief resident superior court judge after more than three decades on the bench, shared some of his concerns recently at a N.C. Policy Watch Crucial Conversation lunch.
Republicans are also proposing a constitutional amendment to have judges at all levels run for election every two years, rather than the current intervals of four or eight years. The frequent elections, in which there would be no primaries, could force voters to choose their candidates from ballots with many names and create situations in which judges get on the bench with far less than 50 percent of the vote.
Some judges say the two-year election cycle is not a serious proposal from lawmakers; rather, they argue, it is a stick to push judges to go along with a constitutional amendment that could give lawmakers a large say in which lawyers are selected to rule in the courtrooms.
“Judges are not and should not be partisan politicians,” Stephens told the several dozen people gathered inside the Junior League of Raleigh Center for Community Leadership Training Room. “The work that they do has nothing to do with politics. Our duty is to the Constitution and the laws enacted by legislature under the Constitution. We do not have constituents. We cannot take a side, and that’s how it should be.”
Starting this year, judges will have to run in partisan races from the district-court level to the state Supreme Court.
Before lawmakers could do away with the election system, voters would have to approve an amendment to the state Constitution.
Lawmakers have yet to provide any samples of the question that voters could be asked as early as in the May primary elections.
Using a carrot and stick
Stephens said he expected any proposed amendment would not be written simply for a voter to understand the full impact, and he expected it to “include a carrot for all sitting judges.” That “carrot,” Stephens said, would be a proposal to keep all incumbent judges in office and only make them stand for retention elections at the end of their terms. In such cases, they would not face a competitor unless voters did not support keeping them on the bench.
“They will grandfather in all sitting judges,” Stephens said. “What they’re doing is asking judges to be shortsighted and look at how that impacts them, and not look at how it impacts the judiciary as a whole, and the independence of the judiciary in the future, forever,” Stephens added. “It’s a tough game, and they are very good at it.”
The survey conducted by the Association of District Court judges shows that 94.4 percent of the judges polled would not support a “merit selection” system that does not “include a provision grandfathering in judges who have been elected to their current terms in office.”
Buckner acknowledged that Jim Blaine, the chief of staff for Senate leader Phil Berger, discussed a proposal to grandfather in sitting judges at a meeting with some members of the district court judges association earlier this year.
Blaine mentioned the proposed changes to the judicial districts, a map being pushed by Rep. Justin Burr, a Stanly County Republican and bail bondsman, while talking with the district court judges. Efforts to reach Blaine for comment were unsuccessful.
The map was adopted earlier this fall by the state House of Representatives, largely along party lines. Burr has said he proposed the changes because judicial and prosecutorial lines have been tweaked piecemeal over the years with no major overhaul since Dwight Eisenhower was president.
Though Burr has denied partisan motives are behind the creation of his plans, Buckner said Blaine has cautioned the district court judges that they could lead to much upheaval for the sitting judges.
“He told us that in three or four years, 40 percent of the judges that are here now would not be here,” Buckner said. “The way the districts are drawn, he said, they couldn’t win.”
Twenty-five percent of all the incumbent district court judges would share their districts with another incumbent in Burr’s maps, including 43 percent of all black district court judges and 31 percent of female district court judges, according to state Board of Elections and Ethics Enforcement records and data released with the judicial maps.
Twenty-seven percent of the Superior Court judges are bunked in the same districts, including 18 percent of the black Superior Court judges and 32 percent of the women, the voting records and data show.
Constitutional problems with the old and new
In November, a Senate Select Committee on Judicial Reform and Redistricting created by Berger met for its inaugural session. They discussed the Burr maps and heard from two lawyers with long ties to North Carolina legislative and judicial issues — Michael Crowell, former director of the Commission for the Future of Justice and the Courts, and Gerry Cohen, an attorney who worked with the legislature for more than 30 years.
Crowell and Cohen both raised questions about the constitutionality of Burr’s proposed map and the current districts.
Some of the districts used to elect judges in urban areas have unbalanced populations, the lawyers said, leaving them open to constitutional challenges.
The double-bunking of African-American judges could lead to racial gerrymandering challenges.
At the same meeting, Sen. Dan Bishop, a Mecklenburg County Republican, described disparities in population numbers in some urban-county Superior Court districts as alarming. The senator noted that some of the same disparities exist for election lines used to elect district court judges.
“There are unconstitutional districts that are in place, and we need to get them fixed,” he said, citing his home county. “We’ve been having people elect Superior Court judges for decade upon decade in a district that, at least by now, and certainly probably for some years, has been unconstitutional.”
The select Senate committee did not discuss any state constitutional amendments at its meeting.
Rep. Joe John, a Wake County Democrat who worked as an appeals court and district court judge, was at the Crucial Conversation lunch with Stephens. Rep. Marcia Morey, a Durham Democrat who left the district court bench to become a lawmaker, also was there.
Stephens described the proposed changes as “payback” to a judiciary that has struck down some of the key pieces of the Republican agenda to move the state to the political right. John and Morey agreed.
“As a result of this, war has been declared, and measure after measure has been introduced, seeking to rip the blindfold of fairness and impartiality from Lady Justice — and to bring the branch of government to partisan heel,” John said.
Republicans have disputed that.
“We have an unsystematic mess that in my view needs to be cleaned up immediately,” Burr said at the Senate select committee meeting in November.