Judges are considered to be in command of their courtrooms. But when state legislators pass laws attacking them— shortening their terms, shrinking the appellate court — judges are no longer in charge and have few ways to defend themselves.
“The legislature is saying to judges, we can redraw your districts, we can redraw your division, we can cut your judicial staff, we can terminate your job at the end of the term if you don’t come around to our way of thinking,” retired Judge Don Stephens. “We can be the bully on the political playground, and there’s nothing that you can do about it.”
Over the past year, state lawmakers have passed several measures that erode the independence of the judiciary. This includes re-designating judicial elections as partisan. They also introduced a plan to redraw all judicial and prosecutorial districts and to require all judges to run for reelection next year.
Rep. Justin Burr (R-Stanly, Montgomery), a bail bondsman by trade who writes the majority of legislation aimed at the courts, has not denied politicizing the judiciary. He and other conservative lawmakers have criticized judges for their concerns over judicial redistricting. As a result, many districts are double-bunked, meaning a pair of incumbent judges must run against one another.
The unspoken motive behind these bills, Stephens said, “is just plain partisan political payback.”
“Why would the legislature be so punitive?” he asked. “Well, because judges have not always agreed that the laws passed by the legislature are constitutional, and judges have been quite quick to strike down unconstitutional laws.”
Many judges, both active and retired, have publicly opposed the legislation. Some have tried to work with lawmakers to improve the provisions; still others have attempted to inform lawmakers of the unintended consequences of their plans.
But judges’ public comments have been muted because they are wary of running afoul of the North Carolina Code of Judicial Conduct. The 10-page document governs judges’ behavior and etiquette while they are serving on the bench. It addresses myriad rules, including judges’ responsibilities, political conduct and activities outside the courthouse.
Whatever judges do, say and wherever they go, they must always “act in a way that promotes” the guiding principles of the judiciary, said Carolyn Dubay, executive director of the Judicial Standards Commission —“independence, impartiality and integrity.”
Dubay said the code doesn’t prohibit judges from airing their opinions under certain circumstances. They may participate in cultural or historical activities or, the code reads, “engage in activities concerning the legal, economic, educational, or governmental systems.”
They can provide feedback on how legislation impacts the administration of the courts. They can also attend and comment at public hearings and committee meetings. Some judges belong to the North Carolina Courts Commission, which evaluates proposed legislation.
However, judges must be thoughtful in their comments about how that could be perceived. For example, a judge could preside over a case in which the constitutionality of a law is questioned; their past commentary could cast doubt on their impartiality. “For this reason, judges often feel a sense of restraint in what they say,” Dubay said.
Dubay said that all judges’ inquiries about ethics are confidential, so she could not comment whether there have been more requests for advice about commenting on legislation.She added, however, that judges have asked, “May I say this about this legislation?” for several years, not just in light of the current legislation.
“Active judges can’t speak out and can’t complain,” Stephens said. “They can’t say the legislature is overreaching; they can’t call the legislature’s hand. Active judges are easy targets for a legislature intent on getting their attention, intent on influencing their decisions and intent on coercing their support.”