Justice Task Force

NCBA Administration of Justice Task Force Final Report and Recommendations on the Report of the Commission for the Future of Justice and the Courts in North Carolina ("Futures Commission")

I. Background.

In 1994, then Chief Justice James Exum appointed a bipartisan twenty-seven member panel of business, legal and community leaders and charged it with developing specific recommendations for improvement of the justice system. According to Futures Commission Vice Chair Rhoda Billings, the Commission was to create a model for the court system of the future, and not to focus on adapting the existing system. On December 5, 1996, after over two years of work, the Commission for the Future of Justice and the Courts in North Carolina ("Futures Commission") presented its final Report to the North Carolina Supreme Court and Court of Appeals, and on the following day to the entire North Carolina Judicial Conference.

The North Carolina Bar Association Administration of Justice ("AOJ") Task Force has addressed issues related to the administration of both civil and criminal laws within the state since its creation several years ago. Last year, the Board of Governors directed the Task Force to review the Futures Commission Report and develop a recommendation to the Board. The leadership of the Futures Commission has asked the Bar Association to take a leading role in guiding this Report and its enabling legislation through the General Assembly. For the Bar Association to undertake that responsibility, it must fully understand what is involved, be conversant in the various issues addressed by the Futures Commission, and be comfortable in supporting the Report in whole or in part. It is clear that there will be organized opposition to at least some of the Commission's recommendations.

The Task Force began to address the Futures Commission Report in December, 1996 with the first of a series of five day long meetings to discuss the issues raised by the Report. The members of the Task Force thoroughly read and reread the Report. This fact was clearly demonstrated by the level of understanding by the members of the Task Force as discussions developed on each of the proposals contained in that Report.

This Report follows the last meeting of the Task Force on March 6, 1997, summarizes the conclusions of the Task Force, and makes recommendations to the Board of Governors about the Report.

II. Analysis of Report.

The Futures Commission bound Report begins with background and summary information and a discussion of perceived problems with the current justice system (pages iii through 13). The overall themes which the recommendations implement are then set out (pages 17 through 27). The recommendations themselves are organized into six sections, beginning at page 31. A number of the ideas cut across more than one section. The sections and their location in the Report:

Governance	page 31
Civil Justice	page 37
Family Court	page 44
Criminal Justice	page 50
Technology	page 57
Citizens' Involvement	page 62

The Task Force analyzed each of the proposals under each section (a total of 44) plus the two overarching changes -- the move to a single trial court level, and the change to a system of 12-18 circuits from 39 districts (pages 17-18).

To ensure a broad perspective by the Task Force, judges of the state District and Superior Court, as well as a U.S. Magistrate Judge, a District Attorney and a Clerk of Superior Court, joined the Task Force as members. In addition, panels of Superior and District Court Judges and District Attorneys addressed the group during meetings, providing both input from their respective perspectives and fielding questions from the Task Force about particular areas of concern. Several of those appearing before the Task Force presented written comments; all of those appearing and participating had clearly studied the Report and presented specific feedback about the Report from their perspectives.

Numerous responses were received from individuals and Section and Committee leadership from the NCBA pursuant to the request for such input published in North Carolina Lawyer. Members of the Task Force also provided thoughtful correspondence when they were unable to attend meetings. This feedback was carefully considered by the Task Force and echoed many of the thoughts the members themselves had about the Futures Commission Report.

This Report represents the consensus of the Task Force. In several respects, there was not unanimity, but in all respects the Task Force was able to develop a clear consensus. This consensus and any general endorsement by the Task Force or the Bar Association as a whole should not be taken as blanket approval of particular schemes of implementation, absent further examination and comment. The Task Force urges the Bar Association and its members to participate actively in the discussion and debate about implementation.

III. Areas of Approval.

The Task Force recognized early in the review process that a large number of the recommendations were both positive and non-controversial. The recommendations in the Family Court, Technology and Citizens' Involvement sections met with general approval. Proposals in the Governance, Civil Justice and Criminal Justice sections, along with the court merger and circuit concepts, required heightened scrutiny, investigation and exploration. The Task Force thus focused its efforts and attention on these more controversial areas.

IV. Areas of Reservation.

After much consideration, the Task Force has the following reservations with respect to the Report and makes the following recommendations:

Appointment of All Judges and Clerks of Court (p. 32). ¹
This recommendation was approved as to judges, but not as to clerks. Task Force members recognized some potential problems that will require careful consideration in order to ensure the integrity of the process of judicial appointments and retention, but the electoral system as it now exists with partisan elections threatens the stability, experience, dignity and impartiality of the bench. Judicial merit selection has been the longstanding policy of NCBA, and The Task Force so concurs in approving this recommendation. With respect to the appointment of clerks, the Task Force believes election is still the most appropriate method of selection. Having a local person accountable to the populace is important; the clerk and the sheriff are the two people in the court system with whom the public has the most contact. Therefore, the Task Force does not support the appointment of clerks.
Single Level Trial Court - Merger of District Courts and Superior Courts (from "A Plan for North Carolina's Courts," p. 17-18).
The Task Force noted early in the review that this was a central issue. After much discussion, the Task Force reached a cautious consensus to approve this item. Flexibility in the court system so that physical facilities and human resources are fully utilized seems to require merger. It is anticipated that during the transition, judges will be assigned to types of cases in which they have experience and expertise, and that current District Court judges will not suddenly be assigned complex cases with which they are not experienced, such as capital cases or civil cases of a different nature from those with which they are familiar. Further, the Task Force assumes that current Superior Court judges will not suddenly be assigned to Family Court to deal with issues previously handled in District Court. Over time, and under a focused transition process, concerns in this regard should dissipate.

Other reservations with respect to this feature of the Report include:
- the cost to the state and the taxpayers of raising existing District Court judges' salaries to the Superior Court level;
- the issue of whether we are simply replacing District Court judges with expanded Magistrate jurisdiction and whether this results in simply a two-level, as compared to three-level judiciary; and
- that the present lack of necessary financial resources and personnel in the current system will not be fixed solely by a merger of several aspects of the present system.
In either the present system or the merged system, "terms of court" and other impediments to flexible applications of courtrooms and personnel must be eliminated. Venue provisions should allow motions and pretrial proceedings to be heard throughout a district or circuit.

On balance, but with the reservations noted above, the Task Force supports this recommendation and its concept.
Reduction to 12-18 Circuits (from "A Plan for North Carolina's Courts," p. 17-18).
Recognized along with merger as a crucial area for review, this issue probably received the most scrutiny and provoked the most debate of any of the proposals. Consideration was given to leaving the districts in place, but grouping them in circuits; also to leaving current district attorneys in place; and trying pilot circuits. It was recognized that even a pilot program of circuits would require a constitutional amendment. Another significant concern was the cost of running for office, with a campaign for circuit attorney resembling a campaign for Congress if there are only 12 circuits, due to the size of the circuits. It was also noted that prosecutors need to be accessible to the people who elect them and to whom they are responsible.

In sum, the Task Force recognizes that the current number of districts is an obstacle to the integrated circuit concept and approves the circuit recommendation, but opposes a mandate that there be no single county circuit and the pairing of urban and rural counties that such a mandate would force. Circuits should be of reasonable size to achieve efficiency and, in urban areas, would consist solely of one county. The number of circuits indicated in the Report (only 12-18) is almost certainly too few to accomplish, in any practical respect, the objectives articulated by the Commission. Specifically, the circuits should not be so large as to make running for circuit attorney prohibitively expensive or to make burdensome travel by the circuit judges from their homes to their assigned courthouses. This result will follow, however, if so much geographic area and so many counties are grouped to reduce the number of circuits to 12-18 circuits. The efficiencies envisioned by the circuit concept will not be compromised by a system composed of 20 or more circuits. The circuit boundaries should be drawn in a manner that takes into account the considerations of reasonable travel distances for judges and jurors, the public's opportunity for meaningful, convenient access to the courts, including in particular the circuity attorney, and related factors.

The Task Force views the Circuit Administrator as an important element in the reforms proposed. Based on observations of Futures Commission members who spoke to the Task Force, it is apparent that this official would serve as a chief of staff to the Chief Circuit Judge and would be a vital link in the reforms aimed at improving the efficiency of managing the justice system throughout each circuit. The Commission members did not see, however, this official as a "boss" of the trial bench. Based on the observations of the Superior Court judges who appeared before us, it is important that the Circuit Administrator not acquire supervisory authority over the circuit judges and not "grade the papers" (one Superior Court judge's term) of the state's trial judges. The Task Force believes it wise to defuse this issue by emphasizing the precise role envisioned for the Circuit Administrator along the above lines.
Expand the Use of Alternative Dispute Resolution for Appropriate Cases (page 39).
Although the Task Force approves this general concept, it is concerned that the Report was not specific as to the binding/non-binding nature of arbitration and in other respects, and therefore the Task Force approval is not as to the specifics of any expansion. Further, the Report lacked specifics with respect to which form of ADR would be used in this feature of reform. As experience has taught, the forms of ADR are not fungible, and the Task Force has reservations about making mandatory ADR a generalized concept.
Expand the Jurisdiction of Magistrates (page 41 and page 50).
This concept was approved, but caution is urged in creating a special group of lawyer-magistrates without an analysis of potential caseloads under the new system of circuit judges and the lawyer-magistrates. Concerns arose about the jurisdictional limit of magistrates and whether this simply creates an additional layer of judges to replace the District Court judges, with the attendant expense.
Develop Cost Disincentives To Discourage Non-Meritorious Litigation (page 42).
The Task Force does not approve this recommendation at this time. There are existing rules which provide sanctions and some cost-shifting. Also, to tie this to ADR is contrary to the philosophy behind successful arbitration/mediation programs. The recommendation requires further study.
Remove the Constitutional Requirements of 12-Member, Unanimous Civil Juries (page 43).
The Task Force approved this only partially. Serious concerns were expressed about reducing the number of jurors and authorizing a non-unanimous verdict. Although the Task Force approves support for a constitutional amendment that would allow experimental pilot projects, a number of members voiced reservations about wholesale change to such a fundamental tenet of the justice system. The Task Force opposes juries of less than 12 members, noting that any cost savings is incidental, but supports experimental non-unanimity in civil cases.
Reserve Jury Resources and Appellate Capacity for Serious Offenses (page 55).
This recommendation was approved in part. Non-jury trial by agreement between prosecution and defense is appropriate. As noted above, twelve person juries and unanimous verdicts in criminal jury trials must be retained. Although the Task Force recognizes that the Court of Appeals should be allowed to hear death penalty appeals, thereby freeing the Supreme Court to devote attention to other areas of the law, this can be done only if the General Assembly provides adequate funding for additional Court of Appeals judges. The Task Force urges this funding for additional judges, just as it sees adequate funding as critical to the overall reform effort.

V. Conclusion.

The Administration of Justice Task Force commends the Futures Commission for the thoughtful and far-reaching Report it has produced. The justice system is in urgent need of reform; the Futures Commission has provided a road map for such reform and given a wake-up call to the legal profession, the legislature and the public. The strengthening of the independence of the judiciary and its accountability for the justice system is absolutely essential to any reform. However, it must be recognized that the solutions suggested by the Futures Commission will not work without adequate funding. The Administration of Justice Task Force believes the Board of Governors should endorse the Report, subject to the reservations expressed above, and encourage the General Assembly to adopt and administer this plan, with adequate funding, to ensure the integrity of our system of justice.

Administration of Justice Task Force Members

William K. Davis, Co-Chairman, Winston-Salem
James B. Maxwell, Co-Chairman, Durham
Marcia H. Armstrong, Smithfield
Ronald G. Baker, Ahoskie
Susan K. Burkhart, Raleigh
Robert G. Byrd, Chapel Hill
James Leo Carr, Durham
Janice M. Cole, Raleigh
Roy W. Davis, Jr., Asheville
Samuel J. Ervin, IV, Morganton
William H. Holdford, Wilson
James H. Kelly, Jr., Winston-Salem
J. Anderson Little, Chapel Hill
Judge John C. Martin, Raleigh
Judge Harold B. McKnight, Charlotte
Jacqueline C. Morris-Goodson, Wilmington
Judge John R. Parker, Manteo
Wade M. Smith, Raleigh
Dewey W. Wells, Winston-Salem
John R. Wester, Charlotte
C. Colon Willoughby, Raleigh

Ex-Officio:

Martin H. Brinkley, Secretary, Young Lawyers Division, Raleigh
L. P. Hornthal, Jr., President, Elizabeth City
Elizabeth L. Quick, President-Elect, Winston-Salem
William G. Scoggin, Director of Governmental Affairs, Cary

March 21, 1997

Endnote

1. The NCBA Board of Governors considered the Report of the Administration of Task Force and adopted it with an amendment to Section IV. A. The text as amended reads:

This recommendation was approved as to judges and clerks by the Board of Governors. The Board recognized some potential problems that will require careful consideration in order to ensure the integrity of the process of judicial appointments and retention, but the electoral system as it now exists with partisan elections threatens the stability, experience, dignity and impartiality of the bench. Judicial merit selection has been the longstanding policy of NCBA, and The Task Force and the Board so concur in approving this recommendation. The Board believes appointment of clerks of court is consistent with the principle of accountability and independence of the judiciary.