For the official information release, go to:
http://www.ncbar.org/download/jpe/jpe_information.pdf

http://www.utahbar.org/cle/annualconvention/materials/aa2_judicial_performance.pdf

What is important to note is that only six of the nineteen make the results known to the voting public in the form of a voter’s information guide. North Carolina isn’t one of them.

The review is expected to take place next spring.
See: http://www.law.com/jsp/article.jsp?id=1202426062230&rss=newswire for more information.

Your belief that judges should be apolitical is well founded. It is a fundamental principle, dating back to our founding fathers who intended to create a new form of government that maintained a system of checks and balances between the three branches of government, i.e., the legislative or law creating branch; the executive or law enforcement branch; and the judiciary, the law interpreting branch. The three were to function without undue influence or pressure from each other or from other private or political interests.

This concept first appeared in 15th century England with the establishment of a separate court system that was to operate independently of the King. It continues on in the United States where judges in high courts are appointed for lifetime tenure, hence insuring their continued employment regardless of the political party in power or current social fads that may have an undue temporary influence on the courts.

The following 9 statements from the US State Department extolling the virtues of an independent judiciary emphasize these same key principles necessary for a free and just democratic society:

1. Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply judges can make decisions based on personal preferences but rather that they are free to make lawful decisions — even if those decisions contradict the government or powerful parties involved in a case.

2. In democracies, independence from political pressures of elected officials and legislatures guarantees the impartiality of judges. Judicial rulings should be impartial, based on the facts of a case, individual merits and legal arguments, and relevant laws, without any restrictions or improper influence by interested parties. These principles ensure equal legal protection for all.

3. The power of judges to review public laws and declare them in violation of the nation’s constitution serves as a fundamental check on potential government abuse of power — even if the government is elected by a popular majority. This power, however, requires that the courts be seen as independent and able to rest their decisions upon the law, not political considerations.

4. Whether elected or appointed, judges must have job security or tenure, guaranteed by law, in order that they can make decisions without concern for pressure or attack by those in positions of authority. A civil society recognizes the importance of professional judges by providing them with adequate training and remuneration.

5. Trust in the court system’s impartiality — in its being seen as the “non-political” branch of government — is a principal source of its strength and legitimacy.

6. A nation’s courts, however, are no more immune from public commentary, scrutiny, and criticism than other institutions. Freedom of speech belongs to all: judges and their critics alike.

7. To ensure their impartiality, judicial ethics require judges to step aside (or “recuse” themselves) from deciding cases in which they have a conflict of interest.

8. Judges in a democracy cannot be removed for minor complaints, or in response to political criticism. Instead, they can be removed only for serious crimes or infractions through the lengthy and difficult procedure of impeachment (bringing charges) and trial — either in the legislature or before a separate court panel.

9. An independent judiciary assures people that court decisions will be based on the nation’s laws and constitution, not on shifting political power or the pressures of a temporary majority. Endowed with this independence, the judicial system in a democracy serves as a safeguard of the people’s rights and freedoms.

So what’s the problem with the current system of electing judges in North Carolina?

Until 2002, judges at all levels of the state court system, from the Supreme Court down to District Court, had to raise their own money to run for election. Running for a local court position like District Court Judge can be expensive. Advertising in the form of mailings, posters, yard signs can easily cost four to ten thousand dollars. Then there are newspaper ads, television ads, campaign gatherings, telephone calls to be arranged. And if the candidate is already working full time, a staff needs to be hired to help manage all these activities. Add another ten to fifteen thousand dollars.

Now these expenses are for a local, county wide election. If a judge is running for a state wide seat, the campaign spreads from one county to all one hundred, yes one hundred counties in North Carolina. Now a campaign must have hundreds of thousands of dollars just to make a legitimate bid for winning the election.

So where does a candidate’s money usually come from? As of 2002, more than 70% of the money raised by judicial candidates running for state-wide office came from attorneys, attorneys who regularly appear in those candidates’ courts. It’s tantamount to allowing basketball players to contribute money to determine the selection of referees that would work their own games.

The reason I mention 2002 is because on October 10 of that year, Governor Easley signed into effect the North Carolina Judicial Campaign Reform Act that changed the playing field by:

1. Making the elections of state Supreme Court and Court of Appeals nonpartisan, beginning in 2004 (like Superior and District court races are now).

2. Giving candidates for state Supreme Court and Court of Appeals the option of public financing, if they voluntarily agree to fund-raising and spending limits; they must raise at least $30,000 during the primary period from at least 350 registered voters and win the primary to be eligible for a flat grant of public money for running their general election. If they abide by the spending/ fund raising limits in primary period and are outspent by non-participating candidate or independent spenders, then they are eligible for “rescue” money from Fund. They also get rescue money in general, so funding that begins at about $200,000 for a Supreme Court candidate in the general election could reach a total of $600,000.

3.Distributing a Voter’s Guide to households about the appellate court candidates; and

4. Lowering the contribution limits for the judicial candidates not in the public financing program to $1000 per election, from the current limit of $4000 per election.

One can see how these changes lighten the burden of a candidate from becoming a full time fundraiser in order to seek a judicial seat. Unfortunately, the finance changes do not effect local judicial elections, i.e., District or Superior Court seats. And that is where my campaign sets itself apart from what is merely allowed by the judicial rules of ethics, which currently allow for contributions from local attorneys who may regularly appear in that judge’s courtroom. I will accept no contribution from any criminal defense or civil attorney, thereby eliminating any chance of undue influence should I win the election and be seated as a District Court Judge. Since every attorney who will appear in my court is one who will have contributed the same amount to my campaign, i.e., nothing, nobody will be treated differently because he or she contributed more or less than another attorney. As I have said elsewhere, my graduate training and doctorate in Ethics impose upon me a higher standard of conduct than what the law merely allows. I will not accept campaign contributions, period.

To make up for the lack of financing that other candidates can avail themselves, I will work my hardest to carry out each of the activities necessary for a successful judicial campaign, not by hiring others to do the campaigning for me but by distributing a signature petition to get my name on the ballot (and thereby avoiding a thousand dollar ballot fee). And by meeting and speaking to each potential voter in person, I circumvent the costly expenses of advertising. There’s simply no need to send a “please vote-for-me” brochure to someone if I’ve already spoken to him or her in person. An example of where doing the right thing is more efficient and less expensive.

Legislating from the bench refers to a judge interpreting the existing law to fit a scenario that doesn’t quite fit the current interpretation of a law or statute. Situations sometimes arise when the relevant law doesn’t perfectly apply to the facts of a particular case. It is in these scenarios that a judge or panel of judges may interpret existing law in a new manner, thereby “creating” new law.

American history is replete with examples. Take Miranda v. Arizona as an illustration. The 5th amendment of the Constitution requires that no person shall be compelled in any criminal case to be a witness against himself. In 1966, the Supreme Court interpreted this passage of the 5th amendment to imply that a defendant must be informed of his rights before being subjected to custodial interrogation. Prior to Miranda, defendants could have been interrogated and possibly forced into confessing to crimes they didn’t commit because they didn’t fully understand what was going on, or what exactly they were accused of. Recently, an 8 year old boy who was accused of shooting his father was interrogated in such a manner:

http://www.cbsnews.com/stories/2008/11/20/national/main4619936.shtml

Now we all know the Miranda rights from the many police shows we’ve watched:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?”

This is an example of the Supreme Court interpreting the 5th amendment to include specific rights that are not mentioned in the Constitution at all, e.g. to remain silent, to have an attorney. It is also an example that most of us see as a good expansion of rights that protect each of us and benefit society as a whole.

There are, however, other situations, where the court has interpreted existing law to justify or create very unethical ends. Consider the case of Plessy v. Ferguson, that contained the well know “separate but equal” doctrine that was used to justify and rationalize continued segregation in the United States. This doctrine remained in effect from 1896 through its rejection in 1954 by the holding in Brown v. Board of Education of Topeka.

Where do I stand on Judicial Legislation?

A judge has a fundamental duty to follow what’s called the policy of stare decisis or the precedent already established by prior case law. And there is a hierarchy within case law, with the U.S. Supreme Court having the highest authority. Below that are the U.S. Courts of Appeals, U.S. and District Courts. Within each state a similar hierarchy exists with the North Carolina Supreme Court being the highest court authority on state related matters. Below are the North Carolina Court of Appeals and District Courts.

District Court in Durham has two primary divisions, civil and criminal. Civil matters include family law, contract disputes, and minor personal injury matters. Criminal court deals only with misdemeanor offenses (crimes that carry a maximum jail sentence of less than 1 year).

As a District Court judge, I will preside over family court and determine child support, custody, and property distribution matters. In criminal court, I will judge cases involving adults and children (in Juvenile Court) who are accused of committing misdemeanor crimes. And in civil court, I will preside over contract disputes, summary ejectment actions, and simple tort actions.

So as a District Court judge, I would be obligated to and I promise to apply the law in civil and criminal matters as it has already been interpreted by the higher courts in North Carolina (Court of Appeals and the North Carolina Supreme Court). This would leave virtually no room to create new law or legislate from the bench as any improper District Court decision would be readily overturned on appeal to Superior or Appellate Court.

However, in his work, The Nature of the Judicial Process, Supreme Court Justice, Benjamin Cardozo discusses the major factors that affect a Judge’s decision making process and Cardozo acknowledges the role that personal values have in a judge’s legal thinking. It is impossible, Cardozo says, for a judge to make decisions without his or her values influencing those decisions, and I agree.

As a professor of philosophy for more than 18 years, I have studied and taught the major ethical works from the world’s wisdom traditions, reaching from Plato and Aristotle through John Locke, John Stuart Mill, Kant and Hegel. And I am proud to say that I promise to draw from this wealth of knowledge in order to formulate judicial decisions that will be in full accord with the highest ethical principles as well as legal precedent.

Among these principles, the one I hold most dearly is the principle of objectivity, the ability to make decisions in accord with the facts, whatever they may be. Whether they create or allay fears, support or refute closely held beliefs, objectivity is inextricably tied to the pursuit of truth and holds truth as its goal. And that goal, the pursuit of truth, is what I will endeavor to carry out in the court room.