Is NC lawmakers’ proposal a threat to judges who won’t go along with their agenda?

Wake County Superior Court Judge Donald Stephens has spoken out against NC lawmakers’ proposal to make judges stand for election every two years. Stephens will retire from the bench on Wednesday, Nov. 1, 2017.
Wake County Superior Court Judge Donald Stephens has spoken out against NC lawmakers’ proposal to make judges stand for election every two years. Stephens will retire from the bench on Wednesday, Nov. 1, 2017. N&O file photo

Wake County Superior Court Judge Donald Stephens retired from the bench last week, and as he looked toward that job change, he often talked about “getting his voice back.”

At the annual meeting of the North Carolina State Bar just days before his retirement, Stephens gave a taste of some of the things he might speak out about now that he no longer is bound by an obligation to remain impartial on thorny issues that might be argued in his courtroom.

With 33 years behind him as a judge, Stephens, 72, accepted an award from the State Bar with recollections of his mentor James Pou Bailey, the late Wake County judge who was described in his obituary as a “down-to-earth fellow who loved a game of poker with close friends” and a colorful lawyer with wit and integrity.

“One thing Pou Bailey taught me was the importance of a fiercely independent judiciary,” Stephens said. “He taught me that justice and fairness can’t be compromised, not by any government agency, by any lawyer, by any governor or by any legislator.”

With that as his foundation for decades of legal experience, Stephens decided it was time to publicly criticize a recent proposal from some Republican legislative leaders that would make judges in North Carolina run for election every two years. That would abandon the eight-year election cycle for all North Carolina judges, except those in the district courts who are elected every four years.

“I regret that Judge James H. Pou Bailey is not here today to express his thoughts on what he probably would have perceived this legislation to be,” Stephens told a roomful of lawyers whom he implored to speak out against the proposal, too. “A deliberate attack on the independence of the judiciary, an act that I suspect he would have seen as an affront to the rule of law, an attempt to compromise the integrity of the separation of powers contemplated by the North Carolina Constitution — and as an act which Judge Bailey would likely have viewed as a threat of punishment and retribution upon an independent judiciary inclined to strike down legislation that is unconstitutional on its face.”

Nowhere in America

Critics of the two-year election cycle and a recent decision to do away with judicial primaries in the coming year contend the Republican lawmakers are striking back against a court system that has overturned key pieces of their legislative agenda to move North Carolina to the far political right.

Advocates of the changes push back, saying that for decades Democrats benefited from judicial districts and an election process they designed while their party controlled the branches of government in North Carolina.

Senate Rules Committee Chairman Bill Rabon, a Southport Republican, proposed the move to two-year terms in October while legislators were in a special session to override Gov. Roy Cooper’s veto of a bill that did away with primary elections for all judicial candidates next year. The ultimate decision about two-year judicial elections is up to voters, who would have to support an amendment of the state Constitution for the change to take effect.

State lawmakers serve two-year terms, and Rep. David Lewis, the rules chairman in the House, told WUNC radio: “Some would argue that we do have some activist judges, and the thought would be if you’re going to act like a legislator, perhaps you should run like one.”

Over the past year, lawmakers have made all judicial races partisan, even those for seats on the district courts that typically preside over low-level crimes, custody cases, divorces and traffic tickets. In the recent special session, they did away with primary elections for all judicial races, meaning some races could have numerous candidates seeking a seat and election results that put a judge on the bench with far less than 50 percent of the vote.

Though Stephens is registered as Democrat, some Republican judges have spoken out against lawmakers’ plans. Chief Justice Mark Martin, a Republican whose term is set to end in 2022, expressed his opposition to the two-year election cycle proposal.

“Nowhere in America do voters elect their general jurisdiction judges for two-year terms of office,” Martin said at the State Bar meeting and in a message that went out to all workers in the judicial system. “This is as it should be. Electing judges for two-year terms would force judges to campaign and raise money constantly, and would disrupt the administration of justice.

“Judicial terms of office are longer than executive and legislative terms of office because judges have a different function,” Martin added in the statement that he ran by the Judicial Standards Commission before releasing to make sure he wasn’t violating any ethical standards. “Judges are accountable, first and foremost, to the federal and state constitutions and to the law. They apply the law uniformly, and equal justice under law is the ultimate goal of any court system. The people of North Carolina should have a meaningful role in the judicial selection and retention process, just as citizens of states around the country do. But two-year terms are not the answer.”

Other ideas being considered by the Republican-led General Assembly are:

▪  New election districts for judges and district attorneys that Democrats say have been designed to get more Republican judges on the bench. Republicans counter that the lines would fix piecemeal tweaks to district lines that have favored Democrats for 60 years.

▪  Asking voters on the May primary ballot about abandoning the election of judges for a selection system. The details of who would select the judges have not been provided, though judges around the state say Senate leader Phil Berger’s chief of staff has been floating a proposal that would give legislators a large say in the process.

Senate leader asks for ‘thoughtful dialogue’

“I haven’t seen a proposal that’s legislative picking,” Berger’s chief of staff, Jim Blaine, told Spectrum News on Oct. 18 during an interview. “I’ve heard various Democrats say that’s what the Republicans want to do, but I certainly have not seen the Republicans float that out. I think the rhetoric is outrunning the reality here, and it’s frustrating because you want to have a serious conversation on this.”

Blaine went on to outline several proposals such as a 1995 plan that Cooper, a Democrat, supported when he was a state senator that would have given the governor the power to appoint judges, who then would be subject to confirmation by the legislature. Voters would then have a say in whether to keep those judges on the bench through retention elections.

“Another way that I’ve heard a lot about is a three-part process where you would have some sort of commission that vets the qualifications of potential candidates for judge, and then they funnel them to the legislature, and the legislature maybe narrows that pool of 20 people for each judge slot down to two, three, four or five, and the governor picks from those folks, and the people have a right to reject or accept the governor’s choice through an election,” Blaine said in the Spectrum interview.

Cooper has described current proposals as “this legislature controlling who the judges are going to be in every district at every level” and has spoken against plans to abandon the election of judges. “I don’t think the people of North Carolina want to give up the right to vote for their own local judges and give that power to legislative political party bosses in Raleigh.”

Berger has created a Senate Select Committee on Judicial Reform and Redistricting and appointed 10 Republican senators and five Democrats to consider the new judicial districts approved this fall by the House and the possibility of changing to a “merit selection” system.

“After 60 years of haphazard and sometimes contradictory changes to our judicial system, I hope our state can have a thoughtful dialogue on how to modernize, reform and strengthen it in the coming months,” Berger said in a statement. “The judiciary touches every North Carolinian, so the conversation needs to include Republicans and Democrats, judges, legislators, district attorneys, clerks of court, executive branch officials, men and women of all races, and, yes, even lawyers.”

Significant new complications?

Many judges have supported selection systems, hoping to avoid politics and partisan elections that create costly campaigns and raise questions about whether judges make rulings to keep political bosses happy.

A recent study published by the Brennan Center for Justice at the New York University law school looked at selection systems in South Carolina and Virginia, which are the only two states to give legislators the power to appoint judges. They also mentioned Rhode Island, which abandoned such a system in 1994 after scandals were exposed.

The report’s authors, Douglas Keith, a lawyer in the center’s Democracy Program, and Laila Robbins, a research and program associate at the center, noted several common problems that they found with legislative appointment processes such as cronyism, allegations of nepotism or favoritism, back-room deals made out of public light and legislative standoffs that leave judicial seats vacant for political reasons.

“North Carolina’s legislators may hope to shield judges from undue outside influence and conflicts of interest, but the limited evidence that exists suggests that a legislative appointment system is unlikely to alleviate these problems,” Keith and Robbins concluded. “In fact, legislative appointments can introduce significant new complications: they can enable favoritism towards legislators and those close to them, breed corruption, produce and suffer from governmental dysfunction, and undermine judicial independence – all while continuing to provide a path for special interests to unduly influence nomination.”

Caryn McNeill, president of the N.C. Bar Association, said the lawyers’ organization has advocated for a “merit-based” selection system for years, but added “the devil is in the details” of how those systems are designed. The bar association has urged the lawmakers to go slow as they consider changes to the judicial branch. But in October, the association passed a resolution in opposition to one proposal they hope is taken out of the mix.

“Requiring judges and justices to run for office every two years is inconsistent with principles of judicial independence, would erode trust and confidence in our legal system and ... impede the administration of justice in North Carolina,” the resolution states.

‘We’ll shaft you’

Bob Orr, a former state Supreme Court justice who has been an outspoken critic of some of the changes lawmakers have proposed for the courts, said in a recent phone interview he doubts the proposal to make judges stand for election every two years is one that anybody is weighing seriously. Instead, he described it as a prod to push judges toward a selection process that would give lawmakers a large say in who is appointed to the branch of government that determines if their laws are constitutional.

“It would appear that on the face of it, that this two-year proposal is a punitive threat,” Orr said. “I think candidly, there’s no serious interest in making judges run every two years but the threat of it — the sort of intimation that we can do that — is what concerns me most. That’s way over the top. So over the top.”

Orr, a Republican who won statewide election to the bench when Democrats rarely lost judicial elections, said reforms and changes might be called for, but he is appalled by the way the legislative leaders have been going about the process.

He said he suspects the two-year election cycle proposal was floated after lawmakers were not getting judges and other North Carolina law organizations to support the new election districts or going along with putting a question to voters about a “merit-selection plan” that does not say how the process would work.

“There’s this sense of ‘we have all the power, so if we want to shaft you, we’ll shaft you,’ ” Orr said. “The more leverage you can create in the decision-making process, the more favorably you’re going to shape the results. ... I appeal to my fellow Republicans: Let’s be the party of good government. Let’s not be the party of coercive government.”

Anne Blythe: 919-836-4948, @AnneBlythe1