By Dylan Castellino
State courts are the workhorses of our judicial system, and a recent special legislative session highlights the significance of reform in North Carolina.
Studies show about 95 percent of all cases nationwide are initiated in state courts, with that number even higher in North Carolina. Senate members of North Carolina’s Joint Select Committee on Judicial Reform and Redistricting used the special session to roll out four proposed plans to change how judges are selected in the state.
Each would replace the current system of judicial elections with an appointment process. Lawmakers have not established a time frame for any proposed reform, but all would ultimately require a statewide referendum and constitutional amendment. The following is a primer on the appointment scheme in each proposal.
The Blue Plan: Gubernatorial appointment
The Blue Plan is based loosely on the federal model, in which the president nominates and the Senate confirms judicial candidates.
When a judicial vacancy would occur, the governor would nominate a candidate, who then would need to be confirmed by a majority in the House and Senate. The voters would then confirm or reject the candidate for an eight-year term in the next general election. Approved judges would then face a retention vote of the people after completion of the eight-year term.
The Blue Plan is not the first effort to style judicial selection in North Carolina after the federal model. The General Assembly revived this specific proposal from 1995 Senate Bill 971, which passed in the Senate with bipartisan support but failed a second reading in the House. While the federal model is a familiar one, no state has adopted it in exact form.
Many select judges for their highest courts by gubernatorial appointment and legislative confirmation, but the appointments are typically preceded by binding or nonbinding nominations from an independent commission.
The Orange Plan: Merit selection by commission
When a judicial vacancy occurs, a 15-member Judicial Nominating Commission would identify, solicit, review and nominate two judicial candidates under the Orange Plan. The nominating commission would consist of eight attorney appointees and seven non-attorney appointees.
The governor would choose all attorney appointees, selecting one of three nominees submitted by the N.C. Bar Association, N.C. Advocates for Justice, N.C. Association of Defense Attorneys, N.C. Association of Women Attorneys, N.C. Association of Black Lawyers, the Council of the State Bar, the N.C. Conference of District Attorneys and the Commission on Indigent Defense Services
One non-attorney appointee would be selected by each of the following: The governor, President Pro Tem of the Senate, Speaker of the House of Representatives, House Minority Leader, Senate Minority Leader, and the leaders in the House and Senate of the party opposite the governor’s.
The governor would appoint one of the two nominees presented by the nominating commission. The appointee would serve a 14-year term and be eligible for re-nomination.
The Orange Plan is based on the Missouri model and provides a framework capable of producing diverse commission membership. It was previously considered by the General Assembly in 2012, but a lack of momentum doomed the plan to the same fate as its Blue counterpart.
Thirteen other states have adopted the model, with modifications. The most significant variation among those state models is commission membership, which may include selections from the governor, the legislature, the state bar, or a combination.
The Red Plan: Legislative appointment
Under this plan, the people would nominate or self-nominate judicial candidates when a vacancy occurs, and the General Assembly would appoint one nominee to fill it. The appointee would then serve either for life or until the mandatory retirement age of 72.
South Carolina and Virginia are currently the only states in which the appointing authority is vested in the legislature. While the governor and legislature typically work in tandem to select judges, each serving as a check on the other’s power, this appointment model cuts the governor out of the process.
Perhaps as a consequence, legislative appointments have been heavily criticized for breeding favoritism, corruption, governmental dysfunction and a lack of judicial independence.
For example, Rhode Island’s General Assembly appointed sitting Speaker of the House Joseph Bevilacqua to the state’s Supreme Court in 1976. Due to his public associations with the mafia, Bevilacqua attracted the attention of state and federal law enforcement, was suspended in 1985, and then vacated his post a year later when threatened with impeachment. Rhode Island eventually abandoned its legislative appointment system in favor of merit selection.
The Purple Plan: “Balanced Judicial Selection”
This plan would also allow the people to nominate or self-nominate candidates, but then becomes more complicated.
The Chief Justice of the North Carolina Supreme Court would appoint seven or nine people to serve staggered terms on a nonpartisan Independent Merit Selection Commission, which would evaluate nominees for vacancies on the Supreme Court and the Court of Appeals. The local selection commissions would evaluate nominees for superior and district court judgeships.
The commissions rate each nominee as either “Qualified” or “Not Qualified at this Time,” and the commission would then forward all qualified nominees to the General Assembly for review. At least three nominees would then be forwarded to the governor, who would appoint the most qualified candidate to serve a provisional term.
In the second general election following the governor’s appointment, the people would vote to confirm or reject the judge for a 10-year term, but after that term expires, the judge would not be eligible for reappointment to the same court.
During North Carolina’s committee meeting, the Purple Plan received the most attention from lawmakers. It incorporates elements from other state models in which the governor, legislature and an independent commission all play a role.
Details of the criteria used to rate judicial candidates have not been released, but in its current form, the plan does not provide the selection commission the power to nominate or even recommend judicial candidates. In contrast to other hybrid models, the plan also reverses the common progression of judicial candidates through gubernatorial appointment and legislative confirmation, providing some assurance to the General Assembly that the judge appointed will be its own pick of the litter.
Whether this model can be truly distinguished from a legislative appointment system will largely depend on the role of the Independent Merit Selection Commission and criteria it uses to evaluate judicial candidates.
Dylan Castellino is an attorney with Poyner Spruill in Rocky Mount