By John McCann

DURHAM — A magistrate likened to an ER doctor has been appointed to serve on the N.C. Domestic Violence Commission.

N.C. Speaker of the House Joe Hackney recommended Durham County Magistrate Steven Storch to one of the slots on the commission. Gov. Beverly Perdue went along with that.

Storch, 45, brings to the table the perspective of someone who’s on the frontline of the legal process when it comes to cases of domestic violence.

“Magistrates offices are the emergency rooms of the courts. And magistrates are the emergency-room physicians,” Durham County Chief District Court Judge Elaine Bushfan said.

Storch’s role has him dealing with cases of domestic violence pretty much right after the abuses have occurred. That sort of firsthand knowledge is invaluable, Bushfan said.

“It is my duty as magistrate to determine whether probable cause exists in domestic-violence cases and then set the appropriate conditions of release. I am also responsible for issuing emergency domestic-violence protective orders for those who are in imminent danger. If someone is in danger, it is my job to impose legal sanctions to protect that person. And if it means being held in jail without bond, then that’s what I impose,” Storch said.

The commission, composed of 27 appointed members and 12 ex-officio members, is in place to make sure the state provides necessary domestic-violence services to every person who needs them.

According to a press release, the commission recently adopted an automated statewide domestic-violence protective-order notification system aimed at improving the dissemination of information, giving law-enforcement agencies instant access to existing protective orders statewide.

Other commission contributions include enhancements to existing programs set up to help victims, the press release said.

Storch came up short in the May 4 primary when seeking election to District Court Judge Ann McKown’s seat. One of his campaign pillars was ethics, and he took that so far as to tell voters he wouldn’t ask for campaign contributions. Storch said he wouldn’t take campaign money even if someone insisted on giving him some, because there’d be no telling who’d stand before his bench if he were elected.

Storch is expected to be sworn in Sept. 1 during a ceremony in Raleigh. His term expires Aug. 31, 2012.

“I hope to have a positive impact on future legislation to protect victims, and make an impact in stopping the cycle of domestic violence,” Storch said.

“We’re honored that he’s going to represent Durham County,” Bushfan said.

I have worked closely with our law enforcement agencies for many years now. While an assistant district attorney, I volunteered to help new recruits learn the ins and outs of trial appearances. I also worked closely with the G.R.E.A.T program (gang resistance education training) by teaching during their summer camp sessions.

This endorsement means so much to me because it acknowledges the work I’ve done and the respect I’ve earned from those men and women who place their lives on the line everyday in order to make Durham a safer place for all of us.

All expenditures shall be tracked and recorded in full accordance with North Carolina Board of Election Guidelines and Regulations.  What does that mean?  Storch puts his own money where his mouth is.  He’s spending his own money to run his own campaign.  No compromises, no future promises for present donations, no sense of obligation to anyone who contributes money because no money will be accepted.  This candidate isn’t for sale.

So is he some rich guy who’s going to spend a small fortune to buy a seat on the district court bench during the next general election?  Hardly.  He’s just going to resort to a radical idea of getting votes.  Not by taking out expensive newspaper, radio, or television ads.  Not by hiring professional campaign managers and sending out expensive mass mailings.  He’s going to actually go out and meet people in person, talk to them, ask them what their concerns are, and answer any questions they may have about the Durham court system.  And in doing so, he will ask for their vote in the upcoming 2010 primary.  Imagine that: a candidate who is going to try to meet the voting public, one on one.

So what if you want to help Storch get elected to the bench?  Offer to have a yard sign placed in your yard.  Tell a friend or co-worker about Storch.  Or invite him to your civic group lunch or next social gathering for a talk or presentation on any relevant subject concerning Durham and its legal system.  He wants your vote but he won’t buy it.  He wants to earn it.

For more about not accepting cash contributions, click here.

The History

In our Declaration of Independence, the founding fathers of this country enumerated, among their complaints to the British government, that King George:

“… obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers and … has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

These grievances were well grounded in the English tradition of having, at least in theory, an independent court to hear out disputes.  The court was supposed to have been comprised of officials who weren’t simply puppets of the King but who were authorized to determine the outcome of disputes based upon well established legal precedent. Our current legal system is based upon this tradition of “common law.”

However, the degree of independence that the ministers of the King’s court possessed was questionable.  Hence, our founding fathers’ further institution of a tripartite or three-branch-government laid out in detail in our Constitution.  And it is Article III of the Constitution that lays out the powers and structure of an independent judiciary.

The following 9 statements from the US State Department extol the virtues of an independent judiciary and emphasize the key principles necessary for a free and just democratic society that were so carefully provided for in our Constitution:

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, and 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 twenty 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 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 10th 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.

What’s the solution?

Which is the best method for selecting a local judge? Appointment? Partisan election? Or by a non-partisan election? Public funding for all elections?  Each has its merits but none, by itself, guarantees an independent judiciary.  What is clear, however, is that current standards are insufficient.  To claim that accepting donations from attorneys and special interests is permitted under current law, therefore it is morally acceptable, is an example of poor reasoning.  Recent American history is replete with examples of actions that were perfectly legal but actions that we have since become enlightened to recognize as having been unethical all along.  Laws mandating segregation and laws denying women the right to vote are two that come to mind.

The legal code has never been the moral foundation of a society.  In fact, it’s the other way around.  Laws come about, in our democracy, as the result of the moral majority’s effect on the legislature.  Just recall the Schoolhouse Rock cartoon “I’m Just a Bill.”  The citizens express a need for a law, usually to curtail or restrict a behavior.  The bill is drafted by local representatives, who then vote on the matter.  If passed, that sentiment then becomes a law.  Laws, in our legal system originate from us, from the general will of the people.  And because we are fallible, capable of error, capable of harboring false beliefs, so too are we capable of enacting laws that turn out to be destructive to human freedom and dignity in the long run.

Just because something has been done in a certain way in the past, does not always justify its continued adoption.  There is something terribly wrong with claiming that our judiciary must be independent and impartial yet allowing local attorneys and special interests to influence members of the judiciary by letting them contribute up to one thousand dollars to that candidate’s campaign.  My old logic professor in graduate school had a phrase for people who maintained contradictions like this but I can’t repeat it here.  Let’s just call it a self-contradiction.  And as another one of my intellectual mentors, Jean-Paul Sartre, argued so poignantly in one of his essays, Existentialism is a Humanism, “there is nothing more destructive than a lie that one tells to oneself,”  I refuse to live a lie by accepting campaign contributions from anyone who might appear in my courtroom.  Although current election rules allow it, it’s just something that honesty and integrity demand I refrain from doing.

Esse Quam Videri: A motto and sound  advice for us all.

The State Seal of North Carolina contains the motto adopted in 1893 “esse quam videri” which is often translated as “to be rather than to seem.” This statement, is however, only part of a line taken from Cicero’s essay “On Friendship” or “Laelius de Amicitia” which was written in 44 A.D. (Chapter 26).

The full quote is: Virtute enim ipsa non tam multi praediti esse quam videri volunt. And this may be translated as: Fewer possess virtue than those who wish us to believe that they possess it. The rest of the passage continues:

It is such people that take delight in flattery. When they are addressed in language expressly adapted to flatter their vanity, they look upon such empty persiflage as a testimony to the truth of their own praises. It is not then properly friendship at all when the one will not listen to the truth, and the other is prepared to lie. Nor would the servility of parasites in comedy have seemed humorous to us had there been no such things as braggart captains.

In this work, Cicero is discussing the nature of genuine friendship. A friendship not based upon pleasure, or utility, for those are easily formed and easily dissolved. Once we stop receiving pleasure from the other person, the friendship ceases. Too many couples today mistake pleasure as the basis for marriage and that is the number one reason given by people seeking a divorce these days. “He or she doesn’t make me happy anymore.” It’s no wonder that divorce rates in the U.S. are near 60%.

The same holds for utility, i.e., benefit. The employer/employee relationship is based upon this kind of friendship or civility where the relationship exists only because of a mutual benefit.  Once the benefit ceases, the relationship is soon to dissolve.  How long would you keep working for your current employer if you no longer received a paycheck at the end of the week? Your boss really isn’t your friend, at least not a genuine friend.

It is the friendship based upon virtue, a reciprocity of good will and affection for the other, that is Cicero’s concern. It is this genuine regard that one has for the other, as one is concerned with oneself, that makes life worth living. Were a man to have every good that life has to offer, e.g., health, wealth, riches, and good fortune, but not have a single genuine friend with whom to share those goods, his life would remain a life not worth living. Think about it. When something wonderful happens to us, we meet the girl of our dreams, land the job we’ve been trying to get for years, what’s the first thing we do? We call a friend. Imagine having all the good fortune in the world but no one to call? No one to share the good news with?

For Cicero, at the core of a genuine friendship lies virtue, the ability to do the right action, consistently as a matter of habit. Virtue is a permanent character trait that is the result of a lifetime of hard work and experience. It is life and the plethora of experiences, both good and bad, that teach us how to be virtuous. And it is wisdom that also comes from learning those hard lessons. In other words, virtue is essentially linked with truth. Learning to be virtuous and capable of developing genuine friendship requires a respect for the truth. It requires the ability to make decisions about how to act that are fully in accord with the truth.

And that is the meaning of our state motto: Be wary of those who tell us what we like to hear rather than those who tell us the truth about ourselves. If we surround ourselves with “yes men” we deprive ourselves of learning the truth, about ourselves and about others. And ultimately, we deprive ourselves of the capacity for friendship.

NCGS § 144-2. State motto. The words “esse quam videri” are hereby adopted as the motto of this State, and as such shall be engraved on the great seal of North Carolina and likewise at the foot of the coat of arms of the State as a part thereof. On the coat of arms, in addition to the motto, at the bottom, there shall be inscribed at the top the words, “May 20th, 1775.” (1893, c. 145; Rev., s. 5320; C.S., s. 7536.)

For full details, click here.

I’ve recently received feedback and comments from many respected members in the community casting doubts on the viability of my campaign.  Traditional opinion is that a political campaign needs to raise as much money as possible in order to be successful.  Therefore, since I am not raising or seeking external funding and have sworn to a threshold (<$3,000 in spending), I must not be serious about winning.

First and foremost, let it be clear that I am 100% earnest in winning this election and I am not simply trying to make a point by seeking out a minority “protest vote.”

My campaign has been in the works since the summer of 2008 and not accepting funding is more than something to set me apart from the other candidates but is the result of serious consideration and I have written several essays on this subject.  (click here for link)

The values I hold most dearly and attribute to the independence of the judiciary dictate that I do not accept financial contributions from anyone who might appear in my courtroom.  Given that more than 70% of judicial campaign funding comes from attorneys who regularly appear in any given judge’s courtroom, I have chosen to maintain my moral integrity by keeping the courtroom as neutral as possible with respect to any attorney who might appear before me.

This position is reinforced by the recent United States Supreme Court ruling in Caperton v. Massey. (click for link to this article)

So how do I expect to get votes?  I think bombarding the public with bulk mailings filled with political doublespeak and worn out clichés is an insult to the intelligent voters of Durham.  Ironically, I am already receiving campaign literature from other District Court Judge candidates asking me to support their campaigns!  This only goes to prove my point of the inefficiency of the traditional approach.

In contrast, I expect to earn the trust and confidence of voters by going to them directly.  If you are a registered voter in Durham, expect me to come knocking on your door and introducing myself in person and addressing any questions and concerns you may have about our judicial system directly.

The bottom line is that a vote for Storch is not a “novelty vote” but a vote that represents more than the traditional approach to judicial campaigning.  It represents a vote for a higher standard.

If voters feel compelled to believe that in order for a candidacy to be legitimate that campaign must raise money, I’ll offer a solution:  Vote for Storch in the upcoming primary and then make out a check to any local charity.  The Durham Rescue Mission; Urban Ministries, Reality Ministries; and the John Avery Boys and Girls Club are a few worthy local causes that come to mind.  And in the memo section of the check, indicate that the donation is in honor of the Committee to Elect Storch.

Mailing addresses are:

Or any other local charity you wish to help out.

For further reading on the ethical perils of judicial campaign financing, read: Judicial Campaign Financing: An Ever Present Threat to Judicial Independence

The Bar cites an insufficient number of responses to the survey taken during the summer of 2009.  However, in an earlier public release, the Bar stated that 3,140 responses were received and never intimated that this was an insufficient data pool.

The most recent announcement also indicates that preliminary results were given to judges and requests that no one use those results in the upcoming election.

For the official announcement, click here.

What happened in Caperton v. Massey?

In Massey, an attorney, Brent Benjamin, was running for a Supreme Court Justice seat in West Virginia.  Because contributions made to his campaign committee exceeded 3 million dollars, he was able to run an all-out mud slinging campaign against the then seated judge, Warren McGraw.  What is important to note is that these contributions were made by the C.E.O. of A.T. Massey Coal Company.

A.T. Massey Coal Co. was subsequently involved in a law suit filed by Hugh Caperton, of Harman Mining.  The  jury found in favor of Caperton and awarded $50 million in damages.

The case was appealed and found itself in the West Virginia Supreme Court, before, guess who?  Judge Benjamin.  Of course, Caperton petitioned to have judge Benjamin recuse himself from the case, given the large contributions made by A.T. Massey’s C.E.O..  Benjamin declined and was ultimately part of the 3 to 2 majority that overturned the $50 million verdict.

Caperton appealed to the U.S. Supreme Court.

Writing for the majority, Justice Kennedy called the appearance of conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a threat to the plaintiff’s Constitutional right to due process under the Fourteenth Amendment. The Court also noted that “Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

“The inquiry,” Justice Kennedy wrote, “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”

Applying that test, Justice Kennedy ruled for the Court that “Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—”‘ “offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.”‘ “On these extreme facts the probability of actual bias rises to an unconstitutional level.”

What are the Implications of this Ruling?

Some states are instituting limitations on local judges, e.g., District Court Judges, requiring them to recuse themselves from hearing any case where either party has contributed more than a specified threshold amount to that judge’s campaign.  Texas, for example, has set that amount to $1,000.00 for smaller districts and $2,500 for larger ones.

Other states have introduced legislation to prevent candidates for District Court Judge from accepting any monetary donations by changing the process from an electoral one to one by appointment.

Implications for Durham

District Court campaigns in Durham have historically spent tens of thousands of dollars, with some recent campaigns reaching more than thirty thousand dollars.  This is a relatively small amount compared to the millions that are raised for statewide positions.  But by comparison, contributions made by some local attorneys reach significant percentage of the total campaign budget.  For example, in one recent campaign, the judicial candidate raised approximately ten thousand dollars.  One local attorney contributed $750 to that campaign, which amounts to a substantial 7.5% contribution.

It is hard to believe that the judicial candidate won’t remember that significant contribution when that attorney appears in that judge’s courtroom after the election.

I have promised to not accept campaign contributions from anyone for exactly the reasons brought to light by Caperton v. Massey.  This is the policy I have adopted at the outset of my campaign back in 2008, long before the ruling of the Supreme Court.  Not because it merely avoids the appearance of impropriety but because it is the morally correct thing to do and the only way to preserve judicial fairness, integrity, and objectivity.

And I challenge my opposition to do the same.

Want to know where my opposition’s money is coming from?  Click here