Can North Carolina change the way district court judges are elected without a constitutional amendment?

By: - January 11, 2018 2:08 pm

There’s a new rumor afoot about judicial reform that lawmakers may try to pass a judicial appointment system that only affects district court judges. The plan is apparently premised on the notion that the state constitution allows such action without voter consent.

The Senate has been floating “merit” selection for the better part of half a year and evaluating different forms of judicial reform since the latter part of last year. House Republicans prefer judicial redistricting.

The two bodies are meeting together for the first time this afternoon to study both plans.

Until now, it was believed that voters had a constitutional right to elect all state judges, and that any changes to that process would require a constitutional amendment and voter approval.

Recent media reports, however, indicate that lawmakers are considering a different approach: replacing elections with judicial selection for district court judges without an amendment based on a creative interpretation of some wording in the constitution.

If such a measure were to be introduced, it would be a surprise to Democratic lawmakers, including the ones who serve on the judicial reform and redistricting committees. Constitutional experts warned it would be a risky move that is sure to result in litigation.

“It is a clever idea,” said Michael Crowell, a constitutional expert and Chapel Hill attorney.

Crowell represented lawyer and former judicial candidate Sabra Faires in a successful challenge to the General Assembly’s law creating Supreme Court retention elections.

“The right to vote on offices is pretty important,” he said. “Even if it were a close case, I think the courts would be reluctant to take away the right to vote unless it was clear the legislature could do that.”

‘A novel interpretation’

The constitution is clear about election by the people when it comes to state Supreme Court justices and judges of the Court of Appeals and Superior Court. Experts agree though that the section on the election of district court judges is a bit murkier.

Article IV, Section 10 reads: “District Judges shall be elected for each district for a term of four years, in a manner prescribed by law.”

To change the way district court judges are currently elected to a system in which lawmakers select them, the legislature would have to interpret the word “election” in that section to mean election by them.

“It’s certainly a novel interpretation, and the words are different,” said Gerry Cohen, former special counsel to the state legislature. “Elected as prescribed by law is not the same as elected by the people.”

Cohen and Crowell both suggested examining other parts of the constitution to see how the word election is used to get a better idea of just how narrow the interpretation is.

Crowell described Section 10 as a “clever bit of constitution construction,” but said there are a number of things a court would look at to define election in that instance — the first being the history of the constitution.

He said the Bell Commission initially recommended when the court was created that district court judges be appointed by the Chief Justice of the state Supreme Court at the recommendation of the resident superior court judges.

“We know that the legislature rejected this idea and adopted a few years later [Article IV, Section 10] of the constitution instead,” he added.

Crowell said the context at the time was discussion about election by the people, not the legislature.

“You would also think that if the intent were to allow the legislature to make the choices, it would have been stated more explicitly,” he said.

He added that 50 years of knowing what election means in the context of judges and how elections have been conducted would also be a factor considered by a court.

When asked if “in a manner prescribed by law” could be a qualifier giving the legislature more power, Crowell and Cohen said it’s more likely that the provision means lawmakers are supposed to determine the details of an election — i.e. timing, partisan or non-partisan, primary or no primary, etc.

“There are a lot of features as to the timing and conduction of an election that the legislature needs to set out,” Crowell said.

He added that legislative appointment is a drastic difference from what is written in the constitution.

Douglas Keith, counsel at the Brennan Center for Justice, said he is not aware of any states that use legislative appointments at the trial level only.

He also used the word “novel” in describing the concept of legislative appointment generally. He noted that it’s only used in South Carolina and Virginia and “all of the problems that legislative appointment systems create in those states would remain at the district court level as well.”

He added that there are some states which use different methods of judicial selection for different levels of courts. The Brennan Center has an interactive map online to show those different models.

‘It seems a stretch’

The only judicial selection plan that has been made public thus far is the “purple plan” which deals with the selection of both district and superior court judges.

Sen. Dan Blue’s office and Rep. Joe John (D-Wake), both of whom serve on judicial reform committees, confirmed they had not heard anything about a judicial selection plan that would only apply to district court judges.

“It seems a stretch to me,” John said of the idea. “I would not agree with that interpretation.”

The chairs of the joint House and Senate Committee on Judicial Reform and Redistricting — Representatives Justin Burr (R-Stanly, Montgomery) and David Lewis (R-Harnett) and Senators Dan Bishop (R-Mecklenburg), Warren Daniel (R-Burke, Cleveland) and Bill Rabon (R-Bladen) — did not respond to an email seeking comment.

Senate President Pro Tem Phil Berger also did not reply to an email seeking comment.

John pointed out that district court judges have the most direct contact with every day citizens — “they’re closest to the people and therefore preferred to be selected by the people.”

Rep. Marcia Morey (D-Durham), a former chief district court judge, said she also had not heard of such a plan, nor did she approve.

“It’s not election by the legislature and it would be a warped, perverted distortion of the definition,” she said.

Democratic leader, Rep. Darren Jackson, agreed and said the word “election” has a common meaning. He also had not heard of a plan that would only be applied to district court judges.

“It wouldn’t surprise me that they would try,” he added.

He and Rep. Duane Hall (D-Wake), who is head of the state Courts Commission, pointed out that there were 272 current district court judges and that the legislature is not in session all the time, which would make it difficult to make timely appointments.

They both said they would expect such a measure to be litigated if passed.


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