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Time to reconsider how judges are selected

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Pitt County Courthouse

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Monday, October 16, 2017

North Carolina’s system of selecting trial judges needs to be reformed, but not in the way some legislators want.

The state has two parallel trial-court systems, Superior Court and District Court. Superior Court handles almost all felonies, major civil cases ($10,000 or more), probate and the administration of wills. District Court handles smaller civil cases, some felonies, misdemeanors and juvenile cases.

The state is divided into 30 divisions for each court, though the lines are not the same. Many divisions encompass more than one county. In only five counties (Forsyth, Guilford, Durham, Wake and Mecklenburg) are Superior Court judges elected from only part of the county. For District Court, Union is the only county so divided.

Some Republicans in the General Assembly want to change that. A bill in the House would create sub-districts within almost all urban counties. There is one glaring exception, which we’ll discuss later.

Why? Proponents talk a lot about fair representation, but that’s a smokescreen. The reason, the only reason, is to elect more Republicans to the bench. How is it fair to pack Buncombe County Democrats into a small district surrounded on three sides by a larger district drawn to enhance the chances of Republicans?

And what about Gaston County, an urban county which is not subdivided. Why no concern for the “rights” of people in different parts of Gaston? Because Gaston is predominantly Republican. Districts might allow a Democrat to be elected.

All of this debate misses the larger question: Why should judges be elected? Most of the arguments involve false analogies with the other two branches of government. Election proponents talk as if they think judges should follow the will of the people.

To the contrary, the duty of a judge is to the law and the constitution, not public opinion. Sometimes the right decision is not the popular one. Brown v. Board of Education comes to mind. Would an elected court have made that ruling?

Chief Justice Mark Martin, himself a Republican, is among those who think judges should not be elected. There seems to be some sentiment in the Senate to at least consider such a change.

“Let’s step away from ordinary politics and let the people decide whether our judges should be chosen through a merit selection process rather than partisan elections,” Martin told N.C. Bar Association members in Asheville in June.

“When it comes to the courts, we need to say, ‘Let’s keep the politics over in the executive and legislative branches and let’s get our judges focused on the constitution and the law,‘” Martin said.

Presumably, under an appointive system a nominations commission would present to the governor a list of names, ideally no more than three, from which the government would appoint the judge. There could be retention elections, under which the judge’s name would appear on the ballot alone and voters would decide on a new term.

This might also be a good time to ask if North Carolina should continue having two separate trial-court systems with different but sometimes overlapping jurisdictions and different terms (eight years for Superior Court judges, four for District Court judges).

The key to making a merit selection system work is in keeping the nominations commission from being political itself. Maybe it could be made up on one appointee each from the House speaker, House minority leader, Senate president pro tem and Senate minority leader. The four would then pick a fifth member, who would be chair.

All this talk about judicial reform gives members of the General Assembly a chance to start moving toward real reform. Will they?

The Asheville Citizen-Times

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