Storch for District Court Judge

An Independent Judiciary

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.

Subscribe to blog feed.

Leave a Reply