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Litigation Section Website › Newsletters › The Litigator, April 2011 › The Chair’s Comments: A Word from Philip R. Miller, III

The Chair’s Comments: A Word from Philip R. Miller, III

Article Date: Friday, April 29, 2011

Although my memory may not be 100% accurate, I believe that I first became involved in some level of leadership of the NCBA in the early to mid 1990’s when I was chair of the Legislative Committee of the NCBA Young Lawyers Division. As I also recall, NCBA President-Elect Martin Brinkley was chair of the YLD at that time. In any event, the Legislative Committee studied several issues that year but one of them dominated our discussions: whether to continue to elect Judges or whether to go to some sort of merit selection process. I mention this background as an illustration of the fact that the debate over whether to elect or select Judges has been discussed at the NCBA for a long time.

Since the Reconstruction Era, North Carolinians have elected their Judges. Prior to that time we had an appointment system. With the exception of occasional appointments by the Governor to fill expired terms or vacancies, the election format has remained in place in North Carolina although it has undergone a few tweaks over the years. For example, in 1980, as a result of a fire extinguisher salesman running against Chief Justice Susie Sharp in 1974, North Carolina enacted a Constitutional Amendment that required all Judges to be lawyers.

In 1996 and 2001, the state established nonpartisan elections for its superior and district court elections, respectively. Since 2002, North Carolina has used a system of nonpartisan elections for statewide Judicial races. A primary goal of this system is to avoid overly politicizing Judicial elections; a phenomenon that has occurred in several other states that have partisan Judicial elections.
Over the years I have participated in numerous substantive debates about whether to continue with Judicial elections or switch to some sort of selection process. There are good arguments to be made in favor of and against each side. Perhaps a sign of my malleability, I always found myself agreeing with whichever side spoke last.

Those in favor of Judicial elections point out that the election process gives any lawyer the opportunity to run for Judge, irrespective of his or her race, gender, age or political connections. They argue that a selection process may actually end up being more political than an election. They also express concerns that a selection process may take away the ability of the electorate to vote out a Judge, effectively giving a Judge a lifetime appointment.

Those in favor of a Judicial selection process point out that the vast majority of the electorate is wholly uninformed regarding the qualifications of Judicial candidates, and that this lack of information can lead to the election of an unqualified or otherwise undesirable Judge. They also say that a selection process, when done correctly, can effectively depoliticize the process. They stress that the selection process allows for the removal of undesirable or otherwise ineffective Judges by means of retention elections. They also point out that Judges will have more time to decide cases if they are not forced onto the campaign trail for a state-wide election.

Notwithstanding the good arguments made in favor of Judicial elections, I have come to the conclusion that I am in favor of some sort of Judicial selection process. My journey to the side supporting the selection of Judges coincided with the formation of a committee at the NCBA called the Committee for Judicial Independence. It is co-chaired by former Chief Justice Jim Exum and NCBA past president John Wester.

When founded, the Committee was charged with implementing the provisions of the Judicial Independence Resolution (adopted by the N.C. Bar Association’s Board of Governors on Jan. 17, 2002) which include promoting judicial independence by increasing public and legislative awareness of the importance of an impartial and independent judiciary and seeking improvements in the methods of selection of judges and justices.

The Committee drafted legislation that created a hybrid system of selecting Judges. It combines elements of traditional merit selection with contested elections. Because of the combined merit selection/contested election format, the legislation is unlike any other form of Judicial selection in the country.

A 16-member Judicial Nominating Committee would review candidates for Judicial office and would recommend two candidates to the governor to be placed on a ballot. The governor would then choose one of the candidates to fill the vacancy. The candidate not chosen by the governor could then file for a contested election. That election would determine the person to fill the entire term. If the candidate not chosen does not file for a contested election, the person chosen by the governor would fill the entire term. Either way, the successful candidate would then face retention elections.

In an effort to make the half-attorney, half-layperson Nominating Committee bipartisan, its members will be appointed by various groups, including the NCBA, the N.C. Advocates for Justice, the N.C. Association of Defense Attorneys, the N.C. Association of Women Attorneys, the N.C. Association of Black Lawyers, the Council of the State Bar, the N.C. Conference of District Attorneys and the Commission on Indigent Defense Services.

After receiving the support of the NCBA Board of Governors, the Committee secured primary bill sponsorship from Sen. Fletcher Hartsell, R-Cabarrus and Sen. Dan Clodfelter, D-Mecklenburg. The bill became Senate Bill 458 when it was filed on March 29, 2011. In order to pass, it will require an amendment to the North Carolina Constitution, which requires passage in both houses by a three-fifths margin. The citizens of North Carolina would then vote on the amendment.

While the bill does enjoy bipartisan support, it is likely to face some opposition. This is evidenced by the fact that there has been a bill filed this legislative session that would change the Judicial election process back to partisan races. Apparently the goal of these bills is to give the otherwise uninformed electorate some information about a candidate.

Opponents of the bill to make elections partisan again point out that the political party of a Judicial candidate should be irrelevant. Opponents worry that these bills would further politicize Judicial elections and set North Carolina on a course towards cash-infused Judicial elections where Judicial candidates campaign on issues over which they are likely to preside.
Another bill was recently filed that would abolish the judicial election process and give the governor sole discretion to appoint our judges.

Whether Senate Bill 458 becomes law or not, the Committee for Judicial Independence deserves our applause for its tireless efforts in coming up with an innovative approach to an exceptionally complicated issue.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.