October 31, 2017/Press

ICYMI: Two-Year Terms Torn Apart by N.C. Judges, Lawyers, Legislators

RALEIGH – Republican legislators have launched the next step in their court-rigging scheme, and North Carolinians are rightfully upset. A proposed a constitutional amendment to decrease judicial terms across the state to two-years would effectively turn judges into full-time campaigners and threaten our independent judiciary as NC GOP tries to put our courts under their control. Republicans are tired of losing in court, but instead of changing their ways, they would prefer to make the judicial system bend to their will. This proposal is more than vindictive partisan revenge – it is a threat to our state’s democratic norms.

News & Observer: Is NC lawmakers’ proposal a threat to judges who won’t go along with their agenda?
By Anne Blythe
October 30, 2017

“’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.’”

WRAL: Phil Berger rules by whim to gain partisan omnipotence
By Gene Nichol
October 29, 2017

State Senate leader Phil Berger and his crew have determined, apparently, that — gerrymandering the judges’ districts; eliminating their primaries; restricting their powers of judicial review; ending public funding for their campaigns; manipulating the size of the Court of Appeals; stacking individual Supreme Court elections; and becoming the first state in a century to demand the partisan election of judges — isn’t enough to deliver the precise courts the Republicans require.“

Charlotte Observer: Legislators to judges: You better watch your back
By Charlotte Observer Editorial Board
October 27, 2017

“This might be legislators’ worst idea yet in their campaign to remake North Carolina’s court system, and that’s saying something. Few moves undercut the reality and the appearance of fair and impartial judges like having them run for office every two years. That would make them permanent campaigners – and year-round fundraisers – much like legislators are now.”

News & Observer: Is NC lawmakers’ proposal a threat to judges who won’t go along with their agenda?
By Anne Blythe
October 30, 2017

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

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, a 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.

This past year, the lawmakers have made all judicial races partisan, even those for seats on the district courts which 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 a voter unaffiliated with either party, 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 last week. “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.

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.

“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 last week, 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’

“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.”

Read the full online article here

WRAL: Phil Berger rules by whim to gain partisan omnipotence
By Gene Nichol
October 29, 2017

Last week brought us the gravest potential threat to the independence and integrity of the state judicial system in North Carolina history. Senate Rules Chair Bill Rabon introduced Senate Bill 698, the “Increase Voter Accountability of Judges” resolution. The proposal calls for a constitutional amendment to end every North Carolina judge’s term at the close of 2018. Thereafter, all 403 state judges – District Court, Superior Court, Court of Appeals and Supreme Court – would have their terms reduced to two years.

State Senate leader Phil Berger and his crew have determined, apparently, that — gerrymandering the judges’ districts; eliminating their primaries; restricting their powers of judicial review; ending public funding for their campaigns; manipulating the size of the Court of Appeals; stacking individual Supreme Court elections; and becoming the first state in a century to demand the partisan election of judges — isn’t enough to deliver the precise courts the Republicans require.

Clearing the whole offending slate and forcing them to run constant, expensive, relentless and hyper-partisan campaigns seems now to be the trick.

There are, seemingly, two distinct readings afoot, on Jones Street, to explain the ultra-radical proposal. The first is that our leaders, frustrated with the impudence of the federal judiciary’s repeated invalidation of their pioneering, Constitution-defying handiwork, have chosen to decimate the only judiciary they can get their vengeful hands on, the state one. Lead racial gerrymander artist, State Rep. David Lewis, spouts this claim:  “if you’re going to act like a legislator, (we’re going to) make you run like one.”

If the federal courts are immune from subjugation, their state cousins will have to do. This mirrors the General Assembly’s response to the gubernatorial and attorney general elections – if we can’t control another branch of government, we’ll demolish it. The unyielding will feel the full weight of our ascendancy.

The second theory is that this is something of a misdirection play. Phil Berger is adamant, given his frustrations, to adopt a judicial selection process that allows him to pick our judges. He refers to the desired mechanism as “merit selection.”  What he actually means by that, though, is legislative selection.  You don’t have to worry about judicial uppity-ness if they owe you their jobs.

Unfortunately, by Berger’s calculus, North Carolina’s judges have reacted with great hostility to his kind offer to be their overlord. Swapping independence for subservience, they seem to think, isn’t much of a bargain. If you’re used to being guided by the law books, substituting the approval of the senator from Eden sounds like a raw deal. Not all are yet convinced of the majesty of the burgeoning Berger dictatorship.  Oddly, they think they still have important jobs to do.

Phil Berger, it is safe to say, is unaccustomed to such insolence. So, the second theory goes, SB 698 is really just Berger’s threatened hammer:

Come my way, your honors, or I’ll destroy the lot of you. Notice the sword above your heads. After you pledge allegiance, you’ll find we get along.  But when I press for legislative selection, I don’t want to hear a word.  I run North Carolina.  Don’t get in my way or I’ll give you cause to regret it.

I don’t know which of these interpretations is correct. I don’t even know which one is worse – a senate (lawyer) leader who would destroy the state courts on a whim, or one who uses the threat of destruction, like a dockside bully, to get his way.  None of this is changed by the naming of a senate committee to study “judicial reform”.  Berger’s goal, writ large, has nothing to do with assuring the best justice system.  Partisan omnipotence remains the lodestar.  And it leaves nothing in its wake.

Read the full online article here

Charlotte Observer: Legislators to judges: You better watch your back
By Charlotte Observer Editorial Board
October 27, 2017

The latest proposal out of Raleigh to mess with the judiciary is so absurd as to be almost comforting; surely nothing so detrimental to the courts would actually come to pass.

Yet we’ve learned to take this legislature seriously and literally, so North Carolinians should know about this idea while it’s in its infancy and tell lawmakers what they think.

Sen. Bill Rabon, a Republican from Southport, last week filed Senate Bill 698. The bill proposes a constitutional amendment that would cut all regular judges’ terms – from the N.C. Supreme Court to district court judges – to two years…The amendment would also end all 400-plus current judges’ terms in 2018, including those who were elected to eight-year terms less than a year ago.

This might be legislators’ worst idea yet in their campaign to remake North Carolina’s court system, and that’s saying something. Few moves undercut the reality and the appearance of fair and impartial judges like having them run for office every two years. That would make them permanent campaigners – and year-round fundraisers – much like legislators are now.

Judges are not meant to be politicians. They are not meant to have their decisions influenced by the whim of the voters. They serve the Constitution and the rule of law, and must be insulated just enough to do so.

Maybe that’s why no state Supreme Court in the nation has two-year terms. Maybe that’s why leading judges of both parties came out quickly against Rabon’s proposal, including Republican Supreme Court Chief Justice Mark Martin and former Republican Supreme Court justices Bob Edmunds and Bob Orr (who is a contributing editor to the Observer).

Rep. David Lewis told North Carolina Public Radio that the thinking behind the bill was, “if you’re going to act like a legislator, perhaps you should run like one.”

It’s just legislators’ latest effort to politicize the courts. They made all judicial races partisan and canceled all judicial primary elections. And they plan to gerrymander judicial districts the way they have legislative and congressional districts. Senate leader Phil Berger this week created a select committee on judicial reform that could either produce smart reforms or craft more mischief.

The only thing as bad as making judges run for office every two years would be for legislators to appoint the judges themselves. And that might be next on their agenda.

Read the full online article here

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