The N.C. Senate’s proposed changes to the Judicial Standards Commission, the judiciary’s ethical body overseeing judicial conduct, have been criticized by former judges, attorneys, experts and state lawmakers for undermining the independence of the judiciary.
These changes have been proposed in the state budget, which is still under debate and may not be finalized until mid-August. Critics say the changes to the commission make the appointment process more partisan by giving more power to the General Assembly to make selections. Some supporters believe the proposed changes would reduce conflicts of interest when judges oversee their peers and see the changes as minor administrative adjustments that wouldn’t significantly impact how the commission handles judicial misconduct.
If the budget passes, the provision would replace attorney appointments with judges, giving judges a majority on the JSC. These changes are seen as part of a broader national trend of state legislatures introducing measures to politicize or undermine the independence of state courts.
“I am disturbed by this new proposal because I think it makes it a more partisan process,” Rep. Marcia Morey, D-Durham, said. “I fear that this new structure for the Judicial Standards Commission could be used to politically attack a judge or justice.” She served as a Durham District Court judge for 18 years and a chief District Court judge for five years before joining the General Assembly in 2017.
But some say the courts were partisan before these changes.
“It’s always been partisan, it’s just that the Democrats don’t like the partisan direction of the judiciary or the legislature,” said Dallas Woodhouse, the North Carolina executive director of American Majority, a conservative nonprofit organization. “But the voters made that choice.” Woodhouse directed the N.C. Republican Party from 2015-19.
North Carolina courts have become partisan since the 2018 judicial elections. In 2017, legislation was passed making judicial elections partisan again. Former judges, attorneys, experts and lawmakers say partisan elections have made the judiciary shift more toward the right.
If the budget passes and the JSC is modified, North Carolina will become one of only two states in the U.S. without any attorney appointments to its judicial standards commission. Most states have at least one or more attorneys appointed to their judicial standards commissions, but North Carolina would become an exception, lacking lawyer appointments to the commission. Including attorneys in the Judicial Standards Commission is important for maintaining judicial integrity, fairness and public trust in the legal system, experts say.
Senate’s proposed changes to the JSC
The existing structure of the commission, which has featured the same three groups since its inception in 1973, features judges, laypeople or residents and attorneys, all of whom are parties who have an interest in and are impacted by the courts and judicial misconduct.
The changes proposed by the Senate remove the N.C. State Bar’s four attorney appointments to the JSC. Instead, under the new structure, the General Assembly will appoint four judges.As a result, judges will make up the majority of the members on the commission.
The Senate proposed changes to the commission as part of the state budget, currently under debate for nearly three weeks into the new fiscal year. State lawmakers expect the budget to be finalized by mid-August, and once it passes, the proposed commission changes will take effect.
This change has been proposed at a time when the judiciary has become more partisan and right-leaning, lawmakers say. The push for judicial reform began after the 2016 election, under a Republican majority legislature and with support from the outgoing Republican governor, Pat McCrory. Before the inauguration of the incoming Democratic governor, Roy Cooper, judicial elections were made partisan, resulting in “a significantly more conservative judiciary,” according to the academic study on judicial reform. Republicans in the N.C. General Assembly initiated reforms to shift the judiciary more to the right, it said.
“A relatively minor administrative change doesn’t amount to some big overly partisan conspiracy,” said Woodhouse said. “But I do think that the Judicial Standards Commission needs reforming.” He also believes the JSC should not be handling the political speech of judges on the campaign trail.
“When I was the executive director of the North Carolina Republican Party, my judicial candidates were scared to death of saying something on the campaign trail about some generic issue, worried that the JSC would come after them.”
Concerns and opposition
Lawmakers said that no one in the Senate has explained the reasoning behind this provision or taken ownership of writing it so far. State Bar staff members stated they were neither consulted nor informed of the proposed changes before the budget was released, according to Peter Bolac, the State Bar’s assistant executive director.
Carolina Public Press reached out to Sens. Phil Berger, R-Rockingham, Danny Earl Britt Jr., R-Robeson, David Craven, R-Randolph, Jim Burgin, R-Harnett, Carl Ford, R-Rowan, Bobby Hanig, R-Currituck, Buck Newton, R-Wilson, Norman Sanderson, R-Pamlico, Ralph Hise, R-Mitchell, Timothy Moffitt, R-Henderson, and Amy Galey, R-Alamance, to ask about the reasoning behind the provision, but they either didn’t respond or weren’t available for comment. .
The State Bar has not yet taken an official position on the proposed changes, but staff from the Bar will be in touch with legislators during the budget negotiation process, Bolac said.
Carolina Public Press also reached out to Chief Justice Paul Newby, Associate Justice Phil Berger Jr. and Judge Chris Dillon, the chair of the commission, to comment on how judges and justices are viewing the proposed changes to the commission. Newby’s chambers declined to be interviewed, while Berger and Dillon did not respond.
Morey said that the JSC must be “a neutral body,” and that even if it were Democrats proposing these changes to replace the attorney appointments with judge appointments, she would have had the same concerns about the impartiality of the commission, she said.
“No longer do we have nonpartisan judges; we have very partisan judges,” Morey said. “If I were a judge or a justice, I’d be scared to death to go before the judicial standards commission, thinking I wouldn’t get a fair shake.”
Independent legal experts also see these proposed changes as a partisan move.
“The system that has been proposed is one that is obviously laced with partisan incentives and is purposely designed to give partisan advantages to the political party that is making the appointments,” said Irving Joyner, a professor of law at N.C. Central University in Durham.
The attorneys bring an important perspective on ethics to the commission, said Michael Crowell, a current attorney member of the Judicial Standards Commission.
“The attorneys elected by the State Bar have appeared in courts all over the state before a number of different judges and handled different kinds of cases,” Crowell said. “What they bring to the commission is a perspective on how the actions that judges take affect lawyers and litigants.”
But in conservative legal circles, it is believed that the State Bar leans left, Woodhouse said. He said he does not think the removal of attorneys would affect how the commission handles judicial misconduct.
“Rank-and-file attorneys are being removed and replaced with judges who are also qualified enough in the legal circle to be confirmed by the legislature,” he said. “I don’t personally see this as a major change.”
National trend and broader context
North Carolina is not alone in giving lawmakers more control over appointments to its JSC. In fact, other states have also seen similar structural changes to give their legislatures more power over their judicial standards commissions.
In Montana, similar legislation was proposed but defeated this year. “Supporters say the legislation would eliminate conflicts of interest that may arise with judges overseeing their peers. Opponents say it would hurt the independence of the judiciary and inject politics into a nonpartisan branch,” the story reads.
These changes are being proposed at a time when there’s a national trend of bills being considered in state legislatures to politicize or undermine the independence of state courts, according to the New York-based Brennan Center for Justice.
Nationwide, there is a continuing trend of state lawmakers proposing legislation that undermines the role and the independence of state courts, according to the Brennan Center for Justice. The changes to the NCJSC are playing out within this wider, national context of state lawmakers exercising control over their judiciaries.
“Politics has become nationalized and we’re living in this partisan, nationalized political ecosystem, where what lawmakers do in Florida or Montana is going to be part of the same conversation of what we do here in North Carolina,” said Steven Greene, a professor of political science at N.C. State University in Raleigh.
“Republican state legislators and legislatures set up organizations going back at least a decade, if not longer, to help facilitate cooperation and a lot of the same policy being introduced throughout state legislatures,” he said. “These organizations help create cooperation between state legislatures.”
The American Legislative Exchange Council is one such organization, according to Greene. ALEC is an organization of state legislators who draft and share model policies and legislation.
There is no evidence of the changes to the commission being a part of a national policy agenda, according to Sen. Mujtaba Mohammed, D-Mecklenburg. But this change has taken place as the judiciary has shifted more to the right in recent years, he said.
In North Carolina, the structural changes to the commission were not introduced in a separate bill but were added into the state budget. This move has been criticized by lawmakers because no senator came forward to take ownership of the provision or to explain why it was necessary to make changes to the JSC. Lawmakers say that they feel they weren’t given an opportunity to discuss the changes before they were proposed.
“It’s a red flag that there’s no ownership or reason stated why we are changing this,” Morey said. “There should be transparency about this because it seems like an encroachment of the legislature into the judiciary.” Morey said it gives lawmakers control over the ethical arm of the judiciary.
Morey said she’s open to the idea of making changes to the commission, for instance, by adding the deans of law schools, law professors or retired judges who would give the appearance of impropriety.
“Put independent, unaffiliated people on it,” she said. “If there’s a trend of bias, show evidence and let’s be open to looking at how we can do better.”
The minority party and the stakeholders who will be affected by this provision in the budget have had very little input, said Mohammed.
“The budget had hundreds of pages, and there’s so much information folks would have to dig through,” he said. “Very little transparency and accountability goes into that budget process, and they (whoever drafted it) have stuck in these provisions that are going to have a significant impact on due process rights.” Mohammed is a member of the Appropriations on Justice and Public Safety Committee. He does not know who the writers are and said nobody has come forward yet. Carolina Public Press requested public records to investigate the origin of the proposed changes.
Sen. Jay Chaudhuri, D-Wake, said that this provision “clearly undermines an independent judiciary,” by concentrating more power to the legislature and reducing the oversight of the state’s judicial branch.
“Commission membership is vastly different state to state, but in general, best practices are to pull from three different groups and that would be lawyers, judges and laypeople,” said David Sachar, the director of the Virginia-based Center for Judicial Ethics.
As of 2019, West Virginia, is the only state without attorney appointments, according to a 2019 report on the composition of judicial conduct commissions in the country by the National Center for State Courts, Center for Judicial Ethics. Each state, apart from West Virginia, has one or more attorney members, the report shows. If the Senate budget passes in North Carolina, the state will become one of two states without attorney representation on its commission.
The effects of the proposed JSC structure on an independent judiciary
By removing the attorney appointments to the commission and replacing them with judges appointed by the General Assembly, judges, attorneys, experts and lawmakers say the JSC will become partisan and more self-regulatory.
The State Bar was created by the N.C. General Assembly in 1933 to regulate the legal profession in the state. The four attorneys it appoints to the JSC must have at least 10 years of experience. But the attorneys appointed to the commission by the State Bar “have considerably more experience than that,” Crowell said.
Crowell said that under the new proposed structure, the JSC may not take lawyers who make a significant amount of complaints of judicial misconduct against judges seriously.
“I worry that this would have a chilling effect on lawyers bringing complaints if they know that the legislature has decided that I guess it doesn’t trust lawyers enough to have any of them on the commission,” he said.
Woodhouse said that while he thinks the concerns for lawyers’ complaints are legitimate, he doesn’t think the makeup of the commission would change how seriously lawyers’ complaints are taken.
“No matter the partisan makeup of the courts, whenever something egregious has come up, Democrat and Republican judges and justices were not split on those things,” he said. For instance, according to Woodhouse, there wouldn’t be a double standard for judges who commit judicial misconduct, regardless of their political affiliation. Whether they are Democrats or Republicans, actions like serving as the executor of an estate or engaging in sexual misconduct should be treated equally in terms of consequences.
But Mohammed said he worries that having more judges on the commission would make the commission more self-regulatory.
With the proposed changes replacing lawyers for four more judge appointments to the JSC, there will be more self-regulation with a majority of judges on the commission that investigates complaints against judges and justices, Mohammed said. Before joining the Senate, Mohammed worked as a children’s rights advocate and public interest attorney.
“It is completely preposterous and goes against the Constitution,” he said. “It’s important that we have three branches of government with checks and balances.”
But Woodhouse disagrees. In North Carolina, the people created a constitution that makes the legislature the most powerful institution, Woodhouse said.
“It is constitutionally appropriate for the legislature to have a say in the makeup of the commission that it created,” he said, “The legislature can even disband the JSC, but I’m not advocating for that. I’m saying it has an important role.”
The dangers of the proposed changes to the JSC
Former judges, attorneys and lawmakers are concerned about the dangers posed by the structural changes proposed to the commission by the Senate.
“Just because a few appointments are being changed doesn’t mean that Republican judges have an interest in unfairly going after Democrat judges,” Woodhouse said. “I think the goal here is to make sure that everybody is treated the same.”
But Wanda Bryant, a former judge and former chair of the commission. is worried that the proposed changes to commission could lead to the targeting of judges and justices. She recently did some unofficial consulting on matters before the commission and said that three of the four cases she was consulted on seemed to be racially biased and gender biased. She could not speak about the specific cases or the details, because the complaints and investigations at the commission are confidential.
Mohammed said adding more judges to the JSC would lead to more potential conflicts of interests and he has spoken against the changes in the Appropriations on Justice and Public Safety Committee.
The replacement of attorney members on the JSC raises questions about the balance of power and the potential for partisan influence on the commission. If the budget is finalized by mid-August or earlier, these changes will alter the makeup of the commission, making North Carolina one of only two states without attorney members on its JSC.
Resources
- Concerned individuals looking to file complaints against judges who may have violated the judicial code or committed misconduct can file a complaint here.
- Proposed changes to the commission can be found in the Senate budget, here.
- More information about the Judicial Standards Commission and its appointed members can be found here.
- The N.C. Supreme Court’s disciplinary orders against judicial misconduct and public reprimands can be found here.
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The reality for North Carolinians is that with super majorities in the House and Senate, as well as in the NC Supreme Court, Republican party members can pass virtually any law they desire. The same holds true in other states where one party, be it Democrats or Republicans, effectively controls the law making democratic machinery. Such circumstances invite overreach and abuse by overzealous partisans.
Humans by nature must have guard rails to prevent being controlled by their base instincts which are too easily manipulated by rhetoric and emotion. It will be difficult to restore a sense of parity within our local, state, and federal government, but not yet impossible. I trust over time more experienced leaders will find a path away from a zero-sum philosophy and see a way toward compromise on the issues of real importance that can lift up all citizens.