Report: General Assembly mandates are undermining judicial independence

A new report from the North Carolina Poverty Research Fund is shining a light on an important area in which the General Assembly has been repeatedly undermining the independence of the judiciary: the micromanagement of court fines and fees.

The report is entitled “Forcing Judges to Criminalize Poverty: Eroding Judicial Independence in North Carolina” and in it, authors Gene Nichol and Heather Hunt build on their past research efforts regarding the burdensome nature of court fines and fees for poor people. As Nichol and Hunt explain, state lawmakers have, through their repeated enactment of news laws in recent years limiting the ability of judges to use their discretion in meting out fines and fees, done great damage to the basic concept of an independent judiciary.

Here is the introduction:

Over the past two decades, the state of North Carolina has created one of the country’s most extensive and robust regimes of “user fees” for criminal defendants to help pay for the system of justice. Since almost all criminal defendants are indigent, these court fees work a formidable set of hardships on many litigants. Poor North Carolinians across the state become trapped in a cycle of poverty. Increased debts and ancillary punishments—probation extensions, license revocations, and sometimes even incarceration—frequently result. Constitutional rights are routinely sacrificed. Demands of equal justice and due process are discarded. And a Kafkaesque bureaucratic scheme develops whereby the criminal justice system, meant to benefit all, is increasingly sustained by the least plausible set of economic actors: impoverished, heavily-sanctioned criminal defendants. We have written of the operation of the fee system in “Court Fines and Fees: Criminalizing Poverty in North Carolina.”

North Carolina has joined its impressive list of criminal justice costs and fees with what is likely the nation’s most aggressive enforcement program. Both the United States Constitution and North Carolina law frequently require, or at least allow, court fees and other criminal justice debt to be waived in instances where their imposition would criminalize litigants for their poverty or effectively abrogate constitutionally protected liberties. Since 2011, the North Carolina General Assembly has worked steadily to restrain this traditional judicial authority. Though waiver occurs rarely—fewer than 2% of monetary obligations are waived in a third of counties and under 5% statewide, while over three-quarters of criminal defendants are indigent—legislators have moved repeatedly to close the door even further. The result is a set of intrusions upon the judicial process which not only jeopardizes the rights of impoverished defendants but directly and intentionally interferes with the constitutionally-mandated independence of North Carolina courts. This violation of an appropriate separation of powers, through the legislative subjugation of the courts, is the subject of this report.

The current push to curtail waiver was initiated in 2011 by a procedural requirement mandating that judges issue a “written finding of just cause” before any fees were dismissed. The North Carolina Administrative Office of the Courts (AOC) was then compelled to produce and maintain a record of all cases where fees were waived and file an annual report on the number of waivers granted. The next year, the “written finding” requirement was expanded to include fully elucidated “findings of fact and conclusions of law” to justify every waiver. In 2014, the General Assembly altered the annual report mandate to require a separate listing for every judge and for every judicial district. North Carolina is apparently the only state demanding the publication of such a roster. Judges refer to it, unsurprisingly, as the “shaming” report. The number of state agencies to which the report must be submitted was also greatly expanded.

In 2017, the legislature piled on. It amended the court fees law to prohibit any waiver unless “notice and opportunity to be heard” was presented to all government entities potentially receiving funds from court fees. The notice must proceed by first class mail, to apparently hundreds of agencies, at least 15 days prior to any granted waiver. It, too, is a first-in-the-nation hurdle — consuming court time and money and requiring secondary hearings. State judges reportedly believe the goal of the agency notice is to make “the process to waive a court fee so burdensome” that judges simply won’t bother — tightening the screws on judicial discretion. Early this year the waiver law was altered again, demanding that the AOC report annually to a legislative oversight committee “on the implementation of the notice … to government agencies” requirement.

We make the claim here that the mandated “shaming” report and the absurdly burdensome agency notice requirement unconstitutionally interfere with the independence and integrity of North Carolina courts. The Supreme Court of North Carolina, echoing the state constitution’s demand that “the legislative, executive and judicial powers be forever separate and distinct,” has held that the separation of powers principle is violated “when the actions of one branch prevent another branch from performing its constitutional duties.” The General Assembly has given North Carolina courts the power to waive most court-ordered fees under state law. Despite that grant of authority, the annual waiver report and the uselessly laborious agency notice requirement are designed to place a heavy (legislatively-crafted) thumb upon the scales of such judicial determinations. A legislature may grant courts jurisdiction to adjudicate various matters. It may not, having granted such authority, then attempt to compel judges to exercise that power in favor of (or against) a particular litigant. Doing so breaches the independence required by American courts. The breach is made even more worrisome when waiver is, in numerous instances, mandated by the United States Constitution.

In August 2018, the American Bar Association declared, “No law or rule should limit or prohibit a judge’s ability to waive or reduce any fee, and a full waiver of fees should be readily accessible to people for whom payment would cause a substantial hardship.” The U.S. Supreme Court has made clear that the Fourteenth Amendment prohibits states from “punishing a person for his poverty” through either penalty, incarceration, or the burdening of constitutional guarantees. Accordingly, the waiver of court fees is frequently assured not only by North Carolina law but by the federal constitution. When the General Assembly moves to thwart, burden and discourage the granting of essential waivers for poor litigants as it has with its agency notice and judicial shaming report, it restricts the ability of the judicial branch to carry out its duties. This effective coercion violates essential judicial independence and an appropriate separation of powers. The General Assembly tells North Carolina judges: you have the power to issue waivers in cases of  potent  economic  hardship, but if you use it, we will punish you by making you step through massive bureaucratic hurdles and publishing the fact that you have reached a decision of which we disapprove. If, on the other hand, you deny waiver, we’ll smile, nod our approval, and let you be. We’ve put a thumb on the scales for a reason. We don’t actually want judges to grant waivers. Wise up, or pay the cost.

Of course, the North Carolina General Assembly’s treatment of court fee waivers is hardly its only recent attack on the integrity and independence of the state court system. It has, in the past decade, ended public financing in judicial elections, re-introduced partisan judicial elections, curbed jurisdiction in constitutional challenges, intervened by statute to protect a Republican incumbent justice, manipulated the size of the court of appeals, eliminated judicial primaries, re-districted disfavored Wake and Mecklenburg county courts, moved to reduce gubernatorial appointments, sought to take over the judicial appointment process and threatened judges with the prospect of two year terms. The head of the Republican Party has threatened to impeach judges who rule against the party. So, for North Carolina legislators, interfering with the independence of courts is hardly foreign ground. The General Assembly’s anti-waiver scheme, however, marries two of the legislature’s principal themes of the last decade: attacking the independent functioning of the courts and crushing the prospects of low-income North Carolinians. It is unconstitutional to force judges to step on the necks of poor Tar Heels.”

Click here to read and share the full report.