President's Perspective: Through the Looking Glass
Thinking again?' the Duchess asked, with another dig of her sharp little chin.
'I've a right to think,' said Alice sharply, for she was beginning to feel a little worried.
'Just about as much right,' said the Duchess, 'as pigs have to fly.'
– Alice’s Adventures in Wonderland
Our legislature has decided that facts and thinking should not be allowed to confuse us, at least when it comes to our judicial system.
By the time this article is published, the voters of North Carolina will have selected a majority of the North Carolina Supreme Court, four members of the North Carolina Court of Appeals and numerous Superior and District Court judges. According to the website Judgepedia, the November 2014 ballot in North Carolina included 208 candidates seeking election to our judiciary, 103 of the positions sought by one person with no opposition, the remainder contested.
For the first time in over 40 years, North Carolina citizens casting ballots did not have access to information about pending disciplinary hearings and the underlying complaints filed against judges on the ballot.
How could this be?
In the last days of the 2013 General Assembly, House Bill 562 was passed and sent to the governor for signature. This bill radically changed the operations of the Judicial Standards Commission placing its work under cover of darkness.
The North Carolina Bar Association opposed this bill and asked the governor to veto it through a letter signed by all living past presidents of the Association. The legislative vote had been 54-47, indicating that a veto of the bill could be sustained. The Governor nonetheless signed the bill resulting in the radical changes in the operations of the Commission.
What does this Commission do anyway?
Let’s start with a little history.
The North Carolina Judicial Standards Commission was created in 1973 by both a constitutional amendment and statute. Its purpose was and is to ensure public confidence in our judicial system and the integrity of its judges[i]. The Commission is charged with investigating and resolving inquiries concerning the conduct of judges in our state.
It enforces the Code of Judicial Conduct, which addresses, among other things, judicial conduct during an election. The Commission also provides formal and informal advisory opinions to judges.
The Commission was never empowered to censure or remove judges. Instead, it provides a framework for independent investigation and fact finding and makes a recommendation of appropriate disciplinary action to the court based on the evidence presented.
The North Carolina Supreme Court then decides what action should be taken. Where the object of the proceeding was a member of the Supreme Court, a seven-judge panel from the N.C. Court of Appeals would make the decision.
The Commission developed procedures to address the concern that a good judge could be the victim of frivolous complaints that unnecessarily smear his or her reputation. Through this process, a complaint must essentially have probable cause prior to proceeding to the next phase and being made public.
Although some felt that the entire process from complaint to disposition should be public, the process adopted by the Commission gave the public an opportunity to know about pending complaints that had some basis. In addition, the conduct of the Commission and the hearings conducted by it and the Supreme Court in connection with those complaints were open to the public and subject to public scrutiny.
The record reflects that most judges abide by the standards set by the Commission.
Between 1973 and 2012, the North Carolina Supreme Court took action against judges in only 50 cases. There were no hearings involving Supreme Court justices. According to the annual reports of the Commission, available online, the Commission had 57 pending complaints at the start of 2013 and 235 new complaints were initiated.
Formal investigations were ordered in 25 cases and the Commission found probable cause to initiate formal disciplinary proceedings in one case. In 2012, the North Carolina Supreme Court entered orders of suspension and censure in two matters pursuant to the recommendations of the Commission made in 2011.
In short, the Commission has operated well and without any hint of problem throughout its 40-year existence.
House Bill 562 was a solution in search of a problem.
What did House Bill 562 do?
House Bill 562 made the entire process secret. The complaint, investigation, hearing, file and related documentation is under a cloak of secrecy until “issuance of a public reprimand, censure, suspension or removal by the Supreme Court.”
This bill also put the Supreme Court in charge of disciplining itself. In the interest of fairness and independence and consistent with ordinary principles of due process, the statute had required that disciplinary action against members of the Supreme Court be handled by a panel from the Court of Appeals. Now, the Supreme Court handles discipline of its members.
House Bill 562 also removed the Commission’s ability to settle or resolve a matter with the issuance of a public reprimand, a practice used in appropriate cases, most often where the judge admits to a relatively minor violation of the Code of Judicial Conduct.
Tying the Commission’s hands in this way means that the Commission, which has limited resources, will be forced to take minor violations through the time and expense of two formal hearings, one before a disciplinary panel and the other before the Supreme Court, both of which will be closed to the public; the alternative is to drop the investigation of minor, but important, infractions, meaning that the public is not protected at all.
Why is the Association so concerned about these changes in practice?
In a nutshell, the change in the law is antithetical to the principles of our system of government. We know that justice is not perfect; but our state has a reputation for constantly striving to ensure that trials and hearings, whether involving a criminal defendant or a judge, are fair to both the victim and the defendant.
Permitting the Supreme Court to discipline itself does not have the ring of fairness. If a justice on the Supreme Court violates the Code of Judicial Standards while running for reelection or fails to recuse himself or herself appropriately, the Supreme Court itself will be conducting the hearing. And, the public will not know about the fact of the proceeding unless and until the Court decides if the justice accused is to be disciplined. I cannot imagine that the members of our court find this a palatable or proper process.
Allowing the public to know and see the judicial process is part of ensuring that the process remains fair and independent. A secret trial behind closed doors is the hallmark of a totalitarian government (if indeed any trial is allowed at all), not a democracy. The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, requires that an accused have a public and open trial. This presumption that our courts will be open, subject to very limited exceptions, also finds roots in the First Amendment[ii].
Our courts have repeatedly held that, under the First Amendment, the press and public must be allowed reasonable access to view proceedings in our courts. Don’t we have a First Amendment right to know what is happening in hearings held by the Judicial Standards Commission and the Supreme Court?
Ironically, the First Amendment is also the stated basis for the decision in Citizens United[iii] which unleashed the flood of outside money that is currently polluting our airwaves and the Internet. In the name of the First Amendment, Citizens United permits every rich person with a bee in his or her bonnet to spend millions destroying the good name of an incumbent judge and be largely insulated from liability under the public figure exception of Sullivan v. NY Times[iv].
Do we want voters to use only paid for rumor and innuendo, not facts, to make their voting decisions? Will we have a good system if we allow the accused and his or her colleagues (who are likely to be witnesses) to decide if he or she is guilty or not? What will the public think when we have one standard of justice for them and another for our Supreme Court?
The new process is rife with risk and will impugn the credibility of the court and the entire judicial system in our state. That is why we at the North Carolina Bar Association are concerned about this change in the law. The damage from this will be incremental and slow to manifest itself but ultimately will be deadly to our system of justice.
Our citizens have a right to think; and, to do that meaningfully, they must have facts, not just thirty seconds of scary sound bites. We should act to rectify this process before that harm becomes a reality.
Catharine Arrowood is the 120thpresident of the North Carolina Bar Association. This column originally appeared in the November 2014 edition of North Carolina Lawyer magazine.
[i] N.C.G.S. Chapter 7A, Article 30.
[ii] See Presley v. Georgia, 558 U. S. 209(2010). There the US Supreme Court held that an accused had the right to an open court during jury selection. It stated: “This Court’s rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . . The Court in In re Oliver, 333 U. S. 257, 273 (1948), made clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused…..The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501 (1984). This requirement, too, is binding on the States. Ibid. “558 U.S. at 211-212.
[iii] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) decided the same year as the Presley case, cited in footnote one. In Citizens, the Court held that the statutory restrictions on expenditures by corporations and unions violated the First Amendment's protection of free speech. In reaching this conclusion, the Court overruled two of its earlier opinions that had approved of restrictions on corporate spending on advertisements supporting candidates.
[iv] 376 U.S. 254 (1964). This case essentially held that in the case of a public figure (which anyone who runs for public office is) the public figure must bear the burden of showing the untruth of the statement instead of the usual common law requirement that the defendant prove that what it said is true. The case also imposed on the public figure the burden of showing actual malice by the uttering organization or person.