Merit selection still cloaked in secrecy as Senate committee takes on ‘judicial reform’

By: - November 9, 2017 5:00 am
Rep. Justin Burr (R-Stanley, Montgomery) and Sen. Warren Daniel (R-Burke) listen to questions Wednesday about judicial redistricting at a Senate committee meeting. (Photo by Melissa Boughton)

Several North Carolina Senate members have discussed details about what a potential merit selection plan for judges would look like, but few if any have seen anything concrete.

NC Policy Watch obtained copies of proposals that indicate there are at least two merit selection plans drafted to replace Article IV, Section 16 of the North Carolina Constitution. Whether either of those plans will be presented to the public remains to be seen.

The Senate Select Committee on Judicial Reform and Redistricting met for the first time Wednesday to discuss judicial redistricting, a plan that originated in the House. The committee did not discuss merit selection during the four and half hour session, but is expected to take the matter up in a separate meeting, along with other options on how judges in North Carolina are selected.

Jim Blaine, chief of staff for Senate President Pro Tem Phil Berger, was at Wednesday’s meeting but declined after to comment on anything. He has been making presentations about merit selection around the state and fielding interest from stakeholders as a potential alternative to House Bill 717, the judicial redistricting measure.

Senator Dan Bishop

Committee co-chairs, Senators Dan Bishop (R-Mecklenburg), Warren Daniel (R-Burke) and Bill Rabon (R-Bladen) said after the meeting they had not seen any merit selection plans.

“There’s been ideas I’ve heard articulated, and Sen. [Dan] Blue said them on the [Senate] floor,” Bishop said. “I haven’t seen anything I would say constitutes a plan with that level of granular detail.”

Blue, who is on the committee, could not be reached for comment.

Sen. Floyd McKissick Jr., who is also on the committee, said he had not seen any merit selection plans but that he’d had discussions about the details of a potential plan with representatives from Berger’s office.

“I wouldn’t want to get into the details of that,” he added.

Similar plans

In the plans obtained by NC Policy Watch, one is more detailed than the other, but both call for the Governor and lawmakers to each appoint half of a “Merit Appointment Commission.”

The Commission would deem judicial candidates qualified or unqualified and submit a list of names to the General Assembly.

The next step is where the plans differ slightly. In one draft, lawmakers would nominate “from two to five names” to submit to the Governor to make an appointment to office. The Governor would then have 15 days to make the appointment or else the Lieutenant Governor would take on the responsibility.

Appointees selected by the Governor in that plan would serve initially until the next regularly scheduled election for members of the General Assembly, at which time they would stand for a retention election to an eight-year term.

A retention election is a referendum in which voters are asked whether an incumbent judge should remain in office for another term.

The merit selection process in both plans would involve retention elections. Both plans would also be triggered by the creation of a vacancy in judicial offices, which could be due to retirement, death, disability, the end of a term in which the incumbent does not seek retention, resignation or removal from office.

The second plan has more details. It states that the Merit Appointment Commission would evaluate judicial candidates “who have timely considered applications.”

“After evaluation the Commission shall select for submission to the General Assembly a list of applicants whom a majority of the Commission considers qualified,” the plan states. “Among the qualifications the Commission may consider are education, experience, employment history, demographics of the judicial district to be served, residency of the candidates and such other qualities as the Commission deems important to insure the nominees selected will be broadly representative of the population of the State.”

From the list, the General Assembly is to nominate “no fewer than three names” to the Governor for appointment to office. In that plan, the Governor has 30 days to make the appointment.

Judicial officers in the second plan are appointed to a four-year term and then stand for retention election.

‘For a reason’

Although McKissick didn’t expound on the details described to him about merit selection, he said he was open-minded about such a proposal.

“At the same time, I’m skeptical,” he said.

Sen. Floyd McKissick

He credited the Senate select committee for its process on evaluating different ideas for judicial reform and said he hoped to listen, learn, get data and gain insight on the best way to move forward.

“I certainly prefer the way we are doing it on the Senate side than what happened on the House side with [HB] 717,” McKissick said. “I’m hoping that they really are wanting to receive some constructive input.”

He added that he did not believe the Senate leadership had its mind made up yet but that it was still probably leaning toward merit selection as the preferred judicial reform option. He said he did not believe there was a concrete plan decided.

When asked why he thought details about a merit selection plan were kept secret, McKissick said he believed Senate leaders were still engaged in private conversations with stakeholders about what should and should not be included.

Sen. Terry Van Duyn (D-Buncombe) said after Wednesday’s meeting that she had not seen a specific merit selection plan but had heard some options already publicly floated.

“I am certainly open to appointment of judges if it’s done in an independent way,” she said. “I think we’ve been moving toward a politicization of our courts and that’s certainly not a good direction.”

Van Duyn, like McKissick, said it remains to be seen if Senate leaders had made up their minds about a judicial reform proposal.

“Are we doing this for a reason or is it cover for something else?” she asked. “I hope we’re doing it for a reason.”

Judicial redistricting

For now, Senators are left to ponder the House’s judicial redistricting plan.

Rep. Justin Burr (R-Stanley, Montgomery), who created the new proposed judicial maps, presented his plan Wednesday at the Senate committee meeting and fielded a number of questions from both Republicans and Democrats.

The House has already passed judicial redistricting.

Bishop frequently played devil’s advocate to Democrats, supporting Burr’s plan when their questions seemed critical. He also asked Burr a series of yes or no questions, including whether or not the maps were politically or racially gerrymandered — Burr said “no” to both.

“Have you undertaken this as some sort of evil partisan plot?” Bishop asked him.

The room chuckled and Burr again said “no.”

Senators also heard from representatives from the District and Superior Court Conferences and listened to presentations from Gerry Cohen, former special counsel to the legislature, and

Michael Crowell, a former UNC School of Government professor.

Cohen and Crowell brought up some potential constitutional issues with the House’s maps. When asked for a solution, Crowell joked that he “wouldn’t touch that with a 10-foot pole.”

Daniel told the committee that there were six meetings planned to discuss judicial reform. He said after the meeting that he expects the process of evaluating judicial selection to be fluid and open.

He and the other co-chairs did not know when the next meeting would be scheduled or what topic would be discussed.

“We want to hear what members of the committee want to discuss,” Rabon said.

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