10/20/18: NOV. 6 ELECTIONS: TALKING APPELLATE COURTS, JUDICIAL CANDIDATES, & VAGUE, POWER-GRABBING CONSTITUTIONAL AMENDM’TS

 

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An election sign on South Dogwood Trail: Now you can read the fine print.

 

Early voting for the Nov. 6 elections started Oct. 17 and continues through Sat., Nov. 3, except for today and tomorrow and Oct. 27, when the polls will be closed.

The closest polling station for Southern Shores voters is Kill Devil Hills Town Hall, at 102 Town Hall Drive in KDH. You also may vote at the Dare County Administration Building in the government complex at 954 Marshall C. Collins Drive in Manteo and at the Fessenden Center Annex in Buxton.

Today I’d like to focus on the appellate courts, the judicial candidates, and the six proposed N.C. Constitutional amendments. In a 9/26/18 blog, I provided an overview of the N.C. legislative, the Dare County Commission, and other local elections.

Neither of North Carolina’s two U.S. Senate seats is among the 35 Senate seats that are up for election next month, and longtime U.S. Representative Walter B. Jones is running unopposed in Congressional district three, which represents Dare County.

APPELLATE COURTS: A Look

For better or for worse, N.C. appellate judges are subject to election. The seven justices on the N.C. Supreme Court, which is the highest state court, and the 15 justices on the N.C. Court of Appeals, which is the intermediate appellate court, have eight-year terms.

Just like on the U.S. Supreme Court, one of the N.C. Supreme justices serves as chief justice: He is Mark Martin, who became upon his election to the high court in 1998 at age 35, the youngest Supreme Court justice ever elected in North Carolina. The most familiar name on the court may be Sam J. Ervin IV, whose U.S. Senator grandfather, Sam Jr., famously presided over the Watergate hearings. Associate Justice Ervin is the only Ivy Leaguer (Harvard) on the Supreme Court; the other justices graduated from North Carolina law schools.

Chief Judge Linda McGee presides over the Court of Appeals. According to her online biography, Judge McGee and her husband live in Corolla. If you would like to read the biographies of the other Court of Appeals judges, you may find them here: https://www.nccourts.gov/courts/court-of-appeals/biographies-of-the-judges.

I cannot advise you from professional experience about the makeup of either appellate court. I do know that there are four Democrats and three Republicans on the Supreme Court, and that the Republican-led legislature wants to add two new seats in order to gain a Republican majority. It could do this if the constitutional amendment about changing “the process for filling judicial vacancies” is approved by the voters.

You didn’t know that was possible, did you? How could you? Unless you pored over the actual language of the proposed amendments in your Judicial Voter Guide 2018, you wouldn’t know. The amendment text printed on your election ballot is truncated. Only in the case of the amendment that reduces the maximum allowable income tax rate from 10 percent to 7 percent do you even know what you’re actually voting for or against.

The N.C. General Assembly has a recent history of being hostile to the independent “checks-and-balances” power of the executive and judicial branches. These amendments are an outgrowth of that hostility.

Returning to the courts . . . Appellate courts deal with law, not facts. The local superior and district courts, with which you are probably more familiar, are trial courts where judges and juries determine facts. There are no trials in appellate courts, only a lot of case-record review and arguments, both written (briefs) and oral, by attorneys.

In state appellate courts, the judges are in the business of determining whether an error of law or legal procedure occurred in a lower trial court and of interpreting state law.

Appeals “of right” from North Carolina’s lower trial courts go to the intermediate appellate court, which is why it has 15 members, more than twice as many as the Supreme Court. Its caseload is enormous and backlogged. The Supreme Court can be largely selective about the cases it hears and maintain a much more manageable caseload.

The Court of Appeals sits in panels of three judges to hear appeals and decide if the trial court correctly applied the law. Cases are supposed to be randomly assigned to panels, and judges rotate panels frequently. In contrast, the Supreme Court justices hear cases en banc, meaning as a bench (of seven), not in panels. The Court of Appeals may sit en banc for a case review, but the when, why, etc., are beyond the scope of this article. In both courts, the final disposition is usually a written opinion.

If a Court of Appeals judge on a panel dissents, so that the ruling is 2-1, the losing party has the right to appeal to the Supreme Court for review. Death-penalty cases go directly on appeal from a local superior court to the Supreme Court, bypassing the Court of Appeals, but the vast majority of cases in the Supreme Court come by way of a petition for certiorari. The Supreme Court decides whether or not to grant review to a petitioning party. When the Court grants “cert,” as lawyer say, it applies its discretion to decide that it wants to review the question of law that the case presents.    

Demographically speaking, four men and three women serve on the N.C. Supreme Court. One of the women and one of the men are African Americans; the others are white.

Six women and nine men serve on the Court of Appeals. One woman is black, the remaining 14 justices are white.

JUDICIAL CANDIDATES

On Nov. 6, N.C. voters will be electing one N.C. Supreme Court justice and three justices to the N.C. Court of Appeals, or 1/7 of the high court and 1/5 of the intermediate court. If you read the Judicial Voter Guide 2018, you know a little about who the candidates are.

The candidates for the Supreme Court are sitting Associate Justice Barbara Jackson, a Republican; self-employed Raleigh general practitioner Christopher Anglin, also a Republican; and self-employed Durham civil rights attorney Anita Earls, a Democrat.

Here is how the seats up for election in the Court of Appeals break down:

*Sitting Court of Appeals Judge John S. Arrowood, a Democrat who was appointed by Governor Roy Cooper, is running against Andrew T. Heath, a Republican who was a budget director under former Governor Pat McCrory, for re-election to his seat. This seat was expected to be eliminated by the Republican-controlled General Assembly in its campaign to shrink the Court of Appeals, but when Judge Douglas McCullough, a Republican, resigned, the seat survived, and Governor Cooper appointed Judge Arrowood, of Charlotte, to it.

*Wake County District Court Judge Jefferson G. Griffin, a Republican; Democrat Tobias Hampson, a general practitioner and partner with a Raleigh law firm; and New Hanover/Pender County District Court Judge Sandra Alice Ray, a Republican, are vying for seat 2.

*The election for seat 3 also has three candidates: Republican Chuck Kitchen, an attorney and former county attorney (Durham, Alamance) with 38 years of experience; Democrat Allegra Katherine Collins, a Campbell Law School professor and appellate attorney; and Libertarian Michael Monaco, Sr., a former general practitioner who now lists his occupation as product development.

I elaborated upon the composition and rules of the two courts to illustrate how different the stakes are at the two appellate levels. Judges in the Court of Appeals tend to do mostly bread-and-butter appeals, whereas justices in the Supreme Court settle and make state law. A judge’s “judicial philosophy” matters more at the high-court level than in the Court of Appeals. By judicial philosophy, I mean how a justice understands and interprets the law and then applies it to unique factual circumstances.

I would hope that N.C. voters want fair-minded, independent judges who are committed to the rule of law and equal justice for all, regardless of their political party affiliation. I am not going to endorse particular candidates here, but rather make some general observations.

I believe a seat on the N.C. Supreme Court is a high honor, the culmination of a distinguished legal career that, preferably, has involved substantial trial experience. Supreme Court justices need not have previous judicial experience, but, as a practical matter, they often do. A Supreme Court justice should be a seasoned attorney and/or judge, not a politically motivated millennial admitted to the bar just seven years ago. That description applies to Mr. Anglin.

Speaking of “seasoning,” Court of Appeals Judge John S. Arrowood was admitted to the N.C. bar in 1982 and has a long employment record of varied legal experience; whereas his opponent, Mr. Heath, achieved admission in 2006 and has done scant trial work, instead serving in politically appointed positions. After he lost the 2016 election to Gov. Cooper, former Gov. McCrory appointed Mr. Heath to a special superior court judgeship.

I don’t believe a superior court judgeship should be created and treated as a political stepping stone. I find both Mr. Heath’s appointment and his desire to vacate his judgeship after less than two years offensive.

Among the other candidates, I can report that progressive lawyer friends of mine who litigate in Wake County support both Judge Griffin, who is also a JAG officer in the N.C. Army National Guard, and Mr. Hampson, who specializes in appellate practice. The race for the third Court of Appeals seat is between Mr. Kitchen and Ms. Collins. The Libertarian IT specialist is not a true contender.

TAMPERING WITH THE N.C. CONSTITUTION

When attorneys take their oath of office in North Carolina, they solemnly swear to support the United States and the N.C. Constitutions “to the best of [their] knowledge and ability.” Attorneys often get a bum rap, but the vast majority do not take these governing documents lightly. In my opinion, both constitutions are sacred to our republic and should only be amended when justice demands—cries out for—amendment. The principles of equal protection, due process, and individual liberty should underlie constitutional amendments, not partisan preferences and/or biases.

This year, the N.C. legislature approved six proposed amendments to the N.C. Constitution, which will appear at the end of your election ballot, after all of the candidates’ names. You will be asked to vote “for” or “against” each one.

I consider each one of these amendments overreaching, a blatant power grab, by an agenda-driven N.C. General Assembly that has so little respect for the N.C. Constitution that it didn’t even bother to put implementing language in five of the six amendments. Implementing language tells HOW an amendment will work. There’s also the issue of HOW MUCH implementation of each amendment would cost. The legislature doesn’t care about that, either.

For example, the amendment to require photographic identification to vote provides no details about which types of identification will be permitted or whether any exceptions will be made to accommodate people who are unable to meet the yet-to-be-determined requirements. The General Assembly plans to reconvene after Election Day to draft the requirements. I repeat: It will reconvene after Election Day. It just couldn’t be bothered to inform voters now what it plans to do.

You may well ask: What are acceptable and unacceptable forms of photographic ID? How much will this ID program cost taxpayers? Who knows?

Similarly, the benign-looking amendment to “protect the right to hunt, fish, and harvest wildlife” uses vague and undefined terms and limits the General Assembly’s authority to manage and control wildlife and promote conservation. The amendment gives the “people” the “right” to use “traditional methods,” whatever they are, to “hunt, fish, and harvest wildlife.” It also states that “public hunting and fishing shall be a preferred means of managing and controlling wildlife,” whatever that means.

North Carolinians ALREADY have a right to hunt and fish. There’s no need to sully and abuse the Constitution with potentially damaging new language.

I could go on, and will tomorrow or Monday, with more exposure of what these amendments truly accomplish: The Republican majority wants N.C. voters to sign a blank check over so it can fill in the details later. That’s insulting, beyond the pale.

If the N.C. General Assembly wants to change state law, it should pass statutes, openly and honestly, not seek to execute back-door maneuvers by exploiting the public.

I guess you can tell how I’m voting.

Ann G. Sjoerdsma, 10/20/18

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