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Feb. 26, 2003

The Next Steps in Judicial Reform

By J. Barlow Herget

RALEIGH - "We’re going to be a test tube for the nation," says American Bar Association President Alfred P. Carlton, Jr. Carlton, a partner in the Kilpatrick Stockton law firm here, is talking about North Carolina’s adoption in 2002 of the Judicial Campaign Reform Act. The legislation’s goal is to take partisan politics and special interest money out of the state’s election of high court judges.

Carlton was a leader in the effort and will convene a national ABA colloquium on the 21st Century Judiciary here March 14. He says now, "A lot of eyes are on us and we need to make it work."

Sen. Wib Gulley, D-Durham, agrees. "We’re past the hard first step," he says, "and now we have the equally challenging step of making sure we get the fund created, up and working and that there’s a strong education effort among taxpayers and attorneys."

That education effort will need to include a review the major changes affected by the law. These include:

• Beginning in 2004, Supreme Court and Court of Appeals races become nonpartisan.
• Candidates who raise enough qualifying funds and agree to limits on campaign spending may draw on public campaign funds.
• Taxpayers voluntarily may designate $3 of their taxes be set aside for judicial elections in a Public Campaign Financing Fund. Lawyers will be asked to make a $50 contribution when they pay their annual privilege license fee. The $3 set aside – which will not affect your tax due or your tax refund - will be on next year’s tax returns.
• Qualifying candidates receive about $137,500 (for Appeals Court candidates) or $201,300 (for Supreme Court aspirants).
• The State Board of Elections will publish and distribute a voter’s guide about judicial candidates.
• Even though appellate court candidates will run nonpartisan races, they must file by Feb. 27, 2004, like partisan political candidates, and judicial candidates will be winnowed in the same primary election as partisan elected officials. Judicial candidates’ names, however, will appear separately without party labels as nonpartisan lower court candidates do already.
• The top two finishers in a primary will face each other in the November general election even if one receives a majority in the primary.

One of those groups that will play a role in this education effort is the nonprofit N.C. Center for Voter Education (NCCVE).

"We’re doing market research now on the basic ideas of the Judicial Campaign Reform Act to see how we can help people understand them. We will publish a booklet and have information available on our Web site, and we’re going to speak to groups across the state," says Chris Heagarty, the Center’s Executive Director.

In enlisting the support of attorneys who provided about 70 percent of judicial campaign financing in the old system, Heagarty pointed to NCCVE’s Chairman, former U.S. Sen. Robert Morgan. "He personally wrote to lawyers all across the state, explaining why it was important to change the system. A thousand wrote him back and pledged their support," Heagarty says.

One of those supportive of the new system is former Chief Justice Burley B. Mitchell, Jr., now a partner with the Womble Carlyle law firm here in Raleigh. He admits he would prefer a modified merit selection plan, and as Chief Justice, he led two efforts in 1995 and in l998 to amend the Constitution to allow such a system.

"The short and simple answer is that we can’t get it through the legislature," he reflects. Voters overwhelming want to elect their judges, hence the current compromise legislation. "The non-partisan system we have now I personally think is a very healthy change. Overtime, partisanship will diminish and candidates, I hope, will be judged on their merits rather than a partisan basis."

Now, he says, putting money in the public fund for judicial campaigns is critical. Heagarty and Gulley estimate that between attorney license fee contributions and taxpayer designations, the fund should attract between $750,000 and $1 million annually.

Says Gulley, "We have to put a system in place to take power away from the big money folks and put it back in the hands of ordinary voters."

The key is broad public support. "Judicial campaign finance reform will succeed in North Carolina," declares Bob Phillips of NC Common Cause, "if the public understands its importance. That’s why we must now focus all our energies into public education about this landmark piece of legislation."

To Heagarty, making the new law work is "a way for people to make an investment in democracy."

Barlow Herget is a former member of the Raleigh City Council and testified before the ABA’s Commission on the 21st Century Judiciary on North Carolina’s new law.