After 18 years serving the public in Durham as a judge, I left the bench in April and took a giant leap into the lion’s den of the legislature. While I understood that my new role as a member of the N.C. House would be in a highly charged political environment compared to my nonpartisan role as a judge, I did not anticipate this year’s systematic attack on the independence of North Carolina’s judiciary.
Bill by bill, Republican legislators ultimately passed numerous laws that served to undermine justice and politicize the judiciary, a branch of our government that has been enshrined in impartiality and a commitment to fairness since our nation’s founding.
The first assault was the bill to make all judicial races partisan. Despite the governor’s veto, it passed and will dramatically change to how judges are selected. Every judge and judicial candidate will no longer run on their experience or quality of their performance as a jurist but they will now be defined as Republican or Democrat which could be a controlling factor above professional qualifications.
With the Canons of Judicial Ethics prohibiting judges from talking about issues that may come before them, how are judges and candidates now going to campaign when identified by party affiliation and a party platform that may or not be pro life, pro gun control or anti LGBT rights? Judges should not stake themselves out on political ideology but rule on facts of a case and the applicable law. Historically nonpartisan judicial races have served us well.
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Equally troublesome will be the impact of special interest money that is sure to pour into partisan judicial campaigns and the fact that candidates who are unaffiliated won’t be able to get their names on the ballot until they gather and verify thousands of signatures of registered voters.
This new law was just the start. Other laws enacted during 2017 legislative session include: The number of the Court of Appeals was reduced from 15 judges to 12 to prevent a Democratic governor from appointing replacements for three appellate court seats upon the judges’ mandatory retirement age. Another law has Supreme Court justices hearing appeals of termination of parental rights cases, formerly and appropriately heard by the Court of Appeals.
Finally the budget slashed funding for legal aid. The budget of the Department of Justice was cut $10 million. Emergency judges were limited and in a most bizarre provision, trial court judges will be prohibited from waiving court costs or fees unless certified mail is sent 15 days in advance to an exhaustive list of state agencies that may be impacted.
(So if you get arrested for panhandling for $1, be prepared to pay $180 court costs you don’t have or wait two weeks and come back to court to see if a governmental agency objects to the judge waiving the fee! With tens of thousands of criminal and traffic court cases heard everyday across the state, the work of the courts could grind to a halt.)
But the biggest threat of all to our independent judiciary is around the corner, , and if Paul Revere were on horseback, he would be sounding the alarm across the state: “Judicial redistricting is coming!”
With less than 48 hours notice, House Bill 717 was introduced by Rep. Justin Burr (R) in June. Burr, a bail bondsman from Stanley and Montgomery Counties, has made it his personal mission to introduce this and other bills to destabilize and redefine the judiciary. In a committee hearing room that allowed fewer than 30 people to attend, new judicial maps were tossed out among legislators that divided district and superior court districts into smaller irregular areas, with obvious partisan advantages.
This means incumbent, experienced judges will be forced to run against each other. Newly drawn open seats will be a feeding frenzy for inexperienced lawyers, and in some cases Superior Court judges will drive over 440 miles roundtrip to a courtroom. Countywide elections in urban districts will be split where voters will have no ability to vote for judges who have jurisdiction over them.
The proposed judicial maps are as racially and politically gerrymandered as were the legislative maps. If passed, more litigation is sure to come.
When Rep. Burr was asked if judges or the State Bar or the Administrative Office of the Courts or law schools had been consulted about his redistricting plan in the committee meeting, he responded, “No, I am the legislator. I make the laws.” [HB 717 was passed in committee along partisan lines but pulled from the House calendar for a final vote.]
North Carolina must have a strong, independent judiciary. I agree that a comprehensive evaluation of judicial districts needs to be done and other nonpolitical models of selecting judges should be considered like “merit/retention” used in other states.
But until there is a deliberative, inclusive process, that involves lawyers, judges, law schools and lawmakers and especially the public, transforming our system of justice should not be done by a partisan rush job. The answer is a careful study of workloads and resources and access to justice.
Politicians and politics should not trump justice as is happening now. As Nancy McLean wrote in her book, “Democracy in Chains,” there is a judicial revolution in this country that is being fueled by large donors donating to legislators and targeting judges: “Lose the courts, lose the war.”
Justice cannot lose this war.
Marcia Morey serves in the N.C. House of Representatives, District 30 (Durham), and a former Chief District Court Judge, (Durham, 1999-2017).