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The wrong way to reform the courts

ROB CHRISTENSEN
Syndicated Columnist

This is the story of how two North Carolina legislatures approached court reform — one with prudent professionalism and the other with seat-of-the-pants politics.

This is the 50th anniversary of a major overhaul of North Carolina’s court system, essentially creating the modern system of District Courts, Superior Courts and the N.C. Court of Appeals, all run by the newly created Administrative Office of the Courts that we have today.

The court reform effort began when Democratic Gov. Luther Hodges in 1955 ordered a study, known as the Bell Commission, that examined every facet of the court system and looked at how the courts operated in other states.

Among other things, the Bell Commission found the old system of justices of the peace was “archaic,” “disgraceful,” “corrupt” and dishonest.” Court reform was finally achieved in 1967 after exhaustive study, hearings and expert testimony, and passage of a constitutional amendment. Some of the state’s best legal minds were involved in the effort. It was not easy, taking more than a decade.

Compare that with the slap-dash, ill-thought-out, politically-infused way the legislature is going about court reform this year.

The legislature is considering multiple changes in the judiciary — most of them proposed without having sought the advice of the judges, their staff, the state bar or the public.

Last week the legislature passed a bill that would reduce the Court of Appeals from 15 members to 12 members through attrition.

The stated reason from Rep. Justin Burr, a bail bondsman from Albermarle, who is the bill’s chief sponsor, is that the court’s workload is shrinking.

It has shrunk some. The number of appeals heard by the appellate court declined from 1,715 in 2006 to 1,339 in 2016. The number of cases disposed of decreased from 1,761 to 1,500 during that same period.

But the more important factor seems to be the pending mandatory retirement of three Republican Appeals Court judges — J. Douglas McCullough next month, Robert Hunter Jr. in March 2019 and Ann Marie Calabria in October 2019. In each case, their replacement would be named by Democratic Gov. Roy Cooper.

The GOP now holds an 11-4 majority on the Court of Appeals, but with the retirements that could narrow to an 8-7 margin.

The bill, which is awaiting the signature or veto of Cooper, would also shift certain cases involving termination of parental rights and child abuse from the Appeals Court to the N.C. Supreme Court.

There continues to be talk in legislative circles that GOP leaders would like to restructure the Supreme Court. A Republican court-packing plan was blocked after last November’s election when outgoing GOP Gov. Pat McCrory refused to go along with it. The plan was developed after Democrats won a 4-3 majority.

Shrinking the Appeals Court is one of several proposed court changes being considered or that have already passed.

The Senate is considering a bill that would end the longstanding practice of using retired Superior Court and District Court judges as emergency relief judges, except for the case of business courts. Such judges have been critical in helping relieve the court workload.

There are 42 emergency Superior Court judges and 73 emergency District Court judges. As of April 12, there were nine Superior Court judges assigned to 90 pending cases.

Another Senate bill would split Mecklenburg County from one district into three for the election of District Court judges, prompting a rare news conference by local judges to voice their objections.

On another matter, the legislature has already overriden Cooper’s veto of a bill restoring partisan elections to Superior and District Court elections. North Carolina will now join only eight other states that elect all their trial judges in partisan elections, including such paragons of clean politics as Alabama, Louisiana, Illinois and Pennsylvania.

That follows another move after last fall’s election, when the legislature — in an emergency session to provide funds for hurricane recovery — also began fiddling with the Appeals Court, giving it some new powers, including allowing all 15 judges to hear a case rather than the usual three-judge panel.

Some of these changes might be worthy — or not.

But unlike 50 years ago when Hodges started a proper judicial overhaul, the changes have not been carefully reviewed by judges, court staff, citizens, legal scholars or the state bar.

Instead of being vetted, they have been thrown out there randomly by various GOP lawmakers looking for short-term political gain.

Fifty years ago, we saw what professional lawmaking looked like. This is not it.

Rob Christensen has covered politics for The News & Observer of Raleigh for nearly four decades, and is also the author of “The Paradox of Tar Heel Politics.” Write to him at rchristensen@newsobserver.com.

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