Judicial Elections Put Voters - And Judges - In A Bind
The upcoming primary election on May 8 features a number of congressional and county races getting attention, as well as a controversial amendment about marriage. But voters may find themselves befuddled by a few races further down the ballot: judges, for example. Judicial elections are non-partisan, which means voters can't pick the easy way out and vote straight Democrat or Republican. But judicial candidates are also limited in what they can say about how they would rule in cases - so that makes it hard for voters to choose. For a better understanding of how this process works, WFAE's Julie Rose is here with Morning Edition host Marshall Terry in the studio.
TERRY: Julie, we'll talk about the specific races on the May 8 ballot in just a moment, but first on the broader issue of electing judges. . . is there any good way to pick a judge?
ROSE: Well, I can tell you that states do it differently. Half use a hybrid system where judges are chosen by a commission and every few years voters decide whether to keep that judge on the bench or get somebody new. In a handful of states, judges are chosen by the governor or legislature. That's how South Carolina does it. The rest - including North Carolina - elect judges by popular vote. The advantage of having judges elected by the people is there's less of a chance the bench will be stacked with cronies of politicians who are doing the nominating. But the election process also leaves some inherent room for corruption. A project called the State Integrity Investigation recently took a look at how prone states are to corruption based on laws and safeguards they have in place. In the area of judicial accountability and transparency, North Carolina got a D+. That's tied partly to the fact that judges here have to campaign for office. Mecklenburg County Chief District Court Judge Lisa Bell laid the process out for me:
JUDGE LISA BELL "In a jurisdiction this large, they are not inexpensive. Most of the contributors are going to be either friends and family members of the candidate, or they're going to be members of the bar and that can at least take on an appearance of impropriety."
TERRY: I notice she says the "appearance" of impropriety there. ROSE: Right, she points out the most a person can give to a judicial candidate is $1,000 in North Carolina. Campaigns in our district court region usually raise between $10,000 and $60,000 and the vast majority of contributions are $100 or less. I've had attorneys tell me they worry sometimes when they go before a judge they didn't contribute to and know the opposing lawyer did. But mostly I hear comments like this:
MARK MERRITT "It never crosses my mind. The judges in North Carolina have a remarkable degree of integrity and I've never felt that a judge really gave any consideration at all to, you know, campaign contributions."
ROSE: That's Mark Merritt - a litigator in Charlotte and former president of the Mecklenburg County Bar.
TERRY: So he's confident in the integrity of North Carolina's judges. But are there any safeguards to guarantee a bad egg, so to speak, isn't being influenced by campaign donors?
ROSE: The state does have disclosure laws - judges have to report the broad details of their assets, investments and business deals. There's also a Judicial Code of Conduct and a Judicial Standards Commission that enforces the code. But it has some limitations. For example, on conflicts of interest, for example, the code says a judge should recuse himself from a case if one of the parties asks for it. The judicial code doesn't require a judge to volunteer the conflict of interest, otherwise.
TERRY: So it's not much of a safeguard then? ROSE: Not technically. But the director of the North Carolina Judicial Standards Commission - his name is Paul Ross - says there's just not much of a problem with conflicts of interest on the bench. The code of conduct may have some loopholes in language. But Ross says it's more of a minimum guideline and urges judges to err on the side of caution.
PAUL ROSS "I get a lot of calls from judges - you know should I disqualify from this case - here's the potential bias, what are your thoughts? We tell them yes."
ROSE: Last year the Judicial Standards Commission got 282 complaints against judges. Ross says the vast majority came from people who were unhappy with the way a judge ruled in their case. Most of the complaints get dismissed. Just a handful ever go beyond that to an actual investigation and some kind of reprimand. The public never gets to see the complaints filed - they're confidential. And so are the Commission's reprimands, for the most part.
TERRY: But there are instances of misconduct on the bench. We've had a few high-profile cases in Mecklenburg County in the last few years . . . judges resigning and being censured.
ROSE: You're right. There's actually an example of that right now in the upcoming primary. Most judges up for re-election are either unopposed or have just one challenger. But when judges get in trouble, they tend to draw a larger field of opponents who smell blood in the water. That's the case with Mecklenburg County Judge John Totten. He was briefly suspended in 2010 for making offensive comments to his associates. Now the Judicial Standards Commission has recommended Totten be censured for willful misconduct in the handling of a DWI case. He has three challengers. The May 8 primary will whittle the race down to two. The other judicial race on the primary ballot has five attorneys vying for the seat of a judge who's retiring.
TERRY: Since judicial candidates can't say much about how they'll rule on various cases, is there at least some sort of evaluation that tells people how well a judge performs on the bench?
ROSE: Not until now. That's always been a weakness in the system. This year the North Carolina Bar Association has - for the first time - put out a report card of sitting judges up for re-election. They surveyed thousands of attorneys and asked them to rate judges on things like integrity, impartiality and legal ability. The bar association says it's also working on ratings for attorneys running against sitting judges. Those aren't ready yet. You'll find it's not easy to get information in most cases. In truth, judicial races end up being more about name recognition than anything. And then we're back to the whole thing about having to raise money to get your name on the billboards and the ads.
TERRY: Is there any movement in the state toward making the judicial selection and governance process more transparent or accountable?
ROSE: There's always talk of changing the selection process - but North Carolina's been electing its judges for more than a century. There has been a change recently, though, in how vacancies of the state's highest courts are filled. When a judicial seat comes open in the middle of a term - and this happens a lot when a judge suddenly retires or gets appointed to a higher court position, say - then it's the Governor's job to pick a replacement. The potential for political influence or favors is obvious in that case. So, by executive order, Governor Bev Perdue has created a Judicial Nominating Commission to vet candidates for vacancies in the state's higher courts. That's just beginning its work.
JUDICIAL CANDIDATES ON MECKLENBURG COUNTY PRIMARY BALLOT: District Court Judge District 26 (Moore Seat) Gary Henderson Cam Scott Toussaint C Romain Roy Wiggins Roderick Wright District Court Judge District 26 (Totten Seat) David Strickland Ben Thalheimer John Totten Kary Church Watson Other resources: NC Bar Association ratings for incumbent judges NC Judicial Code of Conduct