Judicial reform farce may put NC Supreme Court in a pickle

A panel of three state judges has unanimously struck down legislation passed in 2015 that would have radically changed how our North Carolina Supreme Court justices are chosen. The bill would have given incumbent justices the option of avoiding contested elections in the future, allowing them to run in “retention” elections in which voters choose whether to keep them on the bench.

The plaintiffs successfully argued that the retention election was unconstitutional because it was not an actual election between candidates and, furthermore, it unlawfully added a new requirement for running for office – that of being an incumbent. Making these sorts of significant election changes requires an amendment to the state constitution approved by North Carolina voters. Though both the original bill and the subsequent lawsuit received negligible media attention, the issues and ramifications for North Carolina citizens and the state judicial system are of profound significance.

Although supporters touted the legislation as needed judicial reform, claiming it would reduce the role of campaign cash in judicial elections, others see it as a partisan ruse to essentially guarantee a conservative majority for the foreseeable future. Setting partisanship aside, if not corrected by the legislature, the retention election legislation and the subsequent lawsuit may force members of the state Supreme Court into an unprecedented and awkward position of deciding between their political self interest and the rule of law.

If the three-judge panel’s ruling is appealed to the state Supreme Court, all seven justices arguably have a significant interest in the outcome of the case. Most certainly Justice Robert Edmunds, who stands for election this year and whose campaign website highlights support for the election change, has an immediate and glaring conflict of interest. North Carolina’s judicial ethics rules require judges to sit out cases when their “impartiality may reasonably be questioned.” The rules specify that recusal is required when judges have “a personal bias” or “any other interest that could be substantially affected by the outcome of the proceeding.” These rules are similar to ethical standards in other states, and they give judges a lot of leeway in deciding when they can hear cases involving a conflict of interest.

If the justices were to hear the case and then face an ethics complaint, it would be up to the justices themselves to decide whether the ethics rules were violated. The General Assembly passed a bill in 2013 that gutted a previous law establishing a panel of appeals court judges to hear complaints against the justices. At the time, Democratic Rep. Rick Glazier called the bill “a plot to cover up potential claims against sitting justices.”

Unfortunately, this ill-conceived judicial reform appears to be yet another step by the General Assembly toward politicizing our courts. Last year, lawmakers tried to bring back partisan elections for state Supreme Court. Though that attempt failed, the General Assembly did regrettably bring partisanship back to the state Court of Appeals. And when it comes to getting big money out of judicial elections, they already undermined proven reform by repealing a public financing program for judicial candidates, even though it was popular with judges across the political spectrum. The program allowed candidates to qualify for public campaign funds if they qualified by raising a certain amount of small contributions.

Without public financing, the 2014 North Carolina Supreme Court election saw more than $5 million in spending – more money than ever before. A 2011 poll found that 94 percent of respondents in North Carolina feared that campaign contributions influence judges’ rulings.

The principle that “no man shall be a judge in his own cause” is at least 400 years old, far older than America’s judicial system. If the General Assembly truly wants build the public’s trust in North Carolina judges’ impartiality, it should move quickly to repeal the judicial retention election law and avoid forcing the state Supreme Court into an untenable position.

Melissa Price Kromm is director of North Carolina Voters for Clean Elections.