North Carolina Lawyers Weekly
By SYLVIA ADCOCK, Staff Writer
Saying “this is history,” Gov. Bev Perdue signed an executive order last week that will establish a nominating commission to screen candidates for consideration when judicial vacancies come open.
“You’ve seen a page turned in the North Carolina judiciary,” Perdue said after she signed the bill, flanked by seven former N.C. Supreme Court justices and chief justices from both parties.
The order takes effect July 1 and does not require any legislative action.
In the past, when a judicial vacancy came open through resignation or death, the governor could appoint any attorney he or she wanted. After July 1, when a vacancy occurs in any judicial office from Superior Court up to the Supreme Court, the judicial nominating commission will select three nominees to forward to the governor, who will appoint the new judge from among them.
The order does not affect how judges are elected, but it is important because a significant number of judges make their way to the bench by appointment. A bill under consideration by the General Assembly addresses the issue of judicial elections.
Some attorneys have said they oppose the formation of such a commission because it could lead to back-room dealing and takes away responsibility from an elected official. Bob Numbers, an attorney with Womble Carlyle in Winston-Salem, said he was concerned that an appointed commission would not be accountable to the public.
Numbers also questioned the prudence of creating a commission made up of “special interests.”
The commission established under Perdue’s order will consist of 18 voting members. In addition, all former chief justices will serve in an advisory capacity.
The governor will appoint 10 members to the commission, eight of whom will be lawyers and two of whom may be either a lawyer or a non-lawyer.
From the bar, eight members will be selected from nominations from the president of the N.C. State Bar, the president of the N.C. Bar Association, the president of the N.C. Advocates for Justice, the president of the N.C. Association of Defense Attorneys, the president of the N.C. Association of Black Lawyers, the president of the N.C. Association of Women Attorneys, the chair of the board of the Indigent Services Commission and the president of the N.C. Conference of District Attorneys.
Sitting at a desk in the old House chambers in the Capitol, Perdue said judicial appointments are “the most important, long-lasting and far-reaching responsibility of a chief executive.” She said she believed the order will help ensure that the men and women appointed to the bench are the best candidates possible.
Former Chief Justice Jim Exum congratulated Perdue on “giving up some of her powers as governor.” Perdue said she didn’t feel she was giving up power, but as “opening up the process to the people of North Carolina.”
The order says that the governor will seek to have a balanced commission that reflects the diversity of the state in geography, race, ethnicity, gender and political party affiliation. With respect to members of the bar, the order says that balance should include practice areas and practice settings.
The commission will review all applications for a vacancy to be filled by appointment. The criteria used should include “integrity, legal knowledge and ability, professional experience, judicial temperament, diligence, health, financial responsibility, and previous public service,” the order says.
The names of the nominees shall be submitted to the governor in alphabetical order, and the governor will then make the names public and invite public comment, the order says.
The order doesn’t specify whether the commission will meet in private to discuss its decisions. “The confidentiality of the proceedings of the commission shall be determined by applicable state law,” the order says.
The commission would qualify as a public body under state law, said Michael Tadych, counsel to the N.C. Press Association. A list of exceptions to the rule requiring that public bodies meet in public is in § 143-318.11(a), and among them is to consider the qualifications, competence or conditions of appointment or initial employment of a public officer or employee.
“I think they could close it,” Tadych said. “That said, it has always been our posture that they don’t have to.”
The measure in the General Assembly, backed by the N.C. Bar Association, calls for a constitutional amendment that would change the way judges are elected. Under the bill, a similar judicial nominating commission would be put in place, but the commission would pick two candidates to run on the ballot. Once the candidates won, they would only have to run unopposed in retention elections.
That system is a hybrid of an electoral system and a merit-selection system and has not been tried in the United States before. To change the constitution, both houses would have to pass the measure by a three-fifths majority and voters statewide would have to approve it.
Sen. Fletcher Hartsell, R-Cabarrus, and Sen. Dan Clodfelter, D-Mecklenburg, are the primary sponsors of the bill, S. 458.
Former Chief Justice Burley Mitchell, speaking after Perdue signed the order, said that a look at the current Supreme Court election in Wisconsin points out the need for changes. The judges there, he said, are being elected according to their stance on collective bargaining.
“It shouldn’t hinge on whatever side you’re on,” Mitchell said.
