Module Three: History, Politics, and the Court System
Transparency 1: Bell Commission
Transparency 2: Routes of Appeal in N.C.
Transparency 3: Federal and State Judicial Structure Activity: Merit Selection Debate
Arguments Against Merit Selection
Arguments for Merit Selection
N.C. Code of Judicial Conduct
Module Three: History, Politics, and the Court System
By the end of Module Three, the students will be able to:
ELP Curriculum Connection:
Fulfills ELP Curriculum Goals
ELP Curriculum Connections:
NOTE: The Judicial Code of Conduct can serve as the background by which the students get a sense of how serious impartiality is for a judge. The argument points may give students ideas to point them in the right directions for their points and counterpoints.
ELP Skills Curriculum Connections:
ELP Skills Curriculum Connections:
Key Concept: History of N.C. Court System
From 1776 to the Civil War
North Carolina's first state courts were largely continuations of the colonial system and thus influenced greatly by the English court system. A county court, called the Court of Pleas and Quarter Sessions, was held in each county by the justices of the peace appointed by the governor from the recommendations of the General Assembly. The justices of the peace were paid from fees collected. In other words, if these justices did not collect any fees, they were not paid! When the county court was out of term, they held court individually or in pairs, to consider lesser matters.
The Constitution of 1776 authorized the legislature to appoint judges of the Supreme Court of Law and Equity. The name is misleading in today's nomenclature, because this is the court that has become known as superior court. Initially, there were three superior court judges who were supposed to hold court twice a year in each of the several districts that were established. The system was criticized because the sessions were not held often enough; there were not enough judges; and their opinions sometimes conflicted, with no means for appeal.
In 1779, the General Assembly required the superior court judges to meet together in Raleigh to resolve their differences. This Court of Conferences put its opinions in writing. In 1805 its name was changed to the Supreme Court, but it was not until 1818 that the court became an independent body with three justices of its own to review cases from the superior court.
Beginning in 1806, the superior was required to hold sessions in each county twice a year, and the state was divided into half a dozen circuits for the rotation of judges. County courts of justices of the peace continued to operate separately.
The Constitution of 1868 to the 1950s
With Reconstruction came dramatic changes in North Carolina government. For the courts, the most far reaching provision in the Constitution of 1868 was the election of judges. Both the Supreme Court, increased to five members, and the superior court, expanded to a dozen judges, were to be chosen directly by the voters for the first time.
The Reconstruction reforms also abolished the Court of Pleas and Quarter Sessions, although justices of the peace were retained as separate judicial officers with limited jurisdiction. Initially they were appointed by the governor; that power was later transferred to the legislature. The distinction between proceedings in law and equity was abolished.
The basic state court structure established in 1868 remained the same throughout the first half of the twentieth century. Before the reforms of the 1960s, the number of superior court judges had grown to 38 in 30 districts, and those judges continued to rotate, moving from district to district on a regular six-month basis. There were 21 district "solicitors" (the old term for district attorneys) who were paid by the state. The clerk of court exercised some judicial functions, primarily as the judge of probate and sometimes as a juvenile judge. In some counties, the superior court had specialized branches for domestic relations and juvenile offenses.
Below the superior court, two levels of local courts developed. First, there were a number of general county courts, county criminal courts, domestic relations courts, juvenile courts and city and county recorder's courts. Some were established by general state law and many by local acts applying to only one locality. About half were county courts, half city or township courts. Most heard misdemeanors, particularly traffic offenses, and some considered civil cases.
The judges usually were part-time and were chosen by various methods of appointment or election. Below those courts were about 90 mayor's courts and over 900 justices of the peace, all of whom heard petty offenses in the $50 or 30-day range. These officials were compensated by the fees collected. All told, there were probably about 1,400 local courts in existence statewide by the 1950s, with no uniformity of jurisdiction, rules or method of selection.
The Bell Commission and the General Court of Justice
Growing dissatisfaction with the maze of local courts, the variations in jurisdiction and rules, the backlog of cases, and the obvious danger of having a judge's pay depend on the fines imposed, prompted Governor Luther Hodges in 1955 to call for court reform. The North Carolina Bar Association responded by creating a Committee on Improving and Expediting the Administration of Justice in North Carolina, composed of 27 members, 15 of whom were lawyers. The committee became known as the "Bell Commission" after its chairman, J. Spencer Bell, a distinguished attorney from Charlotte.
Bell reported the findings and recommendations of his committee to the 1958 summer convention of the Bar Association. Their primary concerns were:
After Bell's committee established the basic goals of court reform, the State Committee for Improved Courts was created in 1958 to decide how to accomplish those objectives. Chaired by J. Spencer Love of Burlington of Burlington Industries, and consisting of one lawyer and one lay member from each of the 30 judicial districts, the committee developed a package of specific recommendations to the General Assembly. Those proposals went to the legislature in 1959.
The Senate passed the bill after amending it to retain more authority for the legislature, but when the House watered it down even further, proponents withdrew the bill altogether. The Bar Association reworked the proposal and presented it again in the 1961 session. Once more, the legislature amended the bill to take authority away from the Supreme Court, but the bill passed. Constitutional amendments were approved by the voters in 1962, the Bar Association continued its legislative efforts in 1963, the Courts Commission was established, and beginning in the mid-1960s the Administrative Office of the Courts was created and implementation of the new district court began.
By the end of the 1960s, the new unified, statewide court system--the General Court of Justice--was in place. Its most important features were:
The Bell Commission's vision of an independent accountable and flexible judicial system was not fully realized, however, primarily because of the General Assembly's resistance to giving the court system full control over its own operations.
The commission had proposed, for example, that the new district judges be appointed by the chief justice, but the legislature chose for them to be elected locally. (An earlier proposal from a Bell Commission subcommittee to have all judges appointed had not even made it to the final report.) The General Assembly rejected giving the Supreme Court the authority to set the rules of civil and criminal procedure for the trial courts, instead retaining that authority for itself. Also falling by the way was a constitutional amendment to allow the legislature to choose later whether juries could have as few as six members, verdicts could be by majority vote in civil cases, and whether defendants could waive the right to a jury in most criminal cases in superior court.
The Present Organization
Since the late 1960s, North Carolina has operated a uniform, statewide court system consisting of two trial level courts--the district and superior courts--and two appellate courts, the Court of Appeals and the Supreme Court.
The Trial Courts
The district and superior courts have divided responsibilities. Generally, district court hears criminal misdemeanors and civil disputes involving less than $10,000. The 190 or so district court judges also hear all juvenile matters and all domestic cases (divorce, child custody, and related matters). There are about 650 magistrates, who are officers of the district court and may hear small claims--that is, civil disputes involving less than $3,000. Magistrates do not try criminal cases, but in some instances they may accept guilty pleas and impose punishment, according to a schedule set by the chief district judges.
The superior court hears felonies and civil disputes involving more than $10,000. The dividing line between district and superior court was first set at $5,000 in the 1960s, and it has been raised only once since then, to the present $10,000 mark in the early 1980s. There are just over 90 superior court judges. Because jury trials are not available for misdemeanors tried in district court, a person convicted there may appeal to superior court for a new trial. All criminal cases tried in superior court, both felonies and misdemeanors, are heard by a jury.
At one time, the district court may have been considered a "lesser" court by some people because it heard the smaller, sometimes simpler cases. Over the years, however, the district court has faced increasingly important and complex cases, especially in domestic matters such as equitable distribution. Now district court judges find themselves resolving cases in which millions of dollars may be at stake--cases as difficult as those handled by their colleagues on the superior court bench.
The Appellate Courts
Almost all matters heard in the trial courts are subject to appeal by the losing side. Most appeals go to the Court of Appeals, the intermediate appellate court. The court also hears direct appeals from various state agencies and organizations, including the Industrial Commission, the Property Tax Commission and the Utilities Commission (except for rate-making cases). The court's 12 judges sit in panels of three to hear cases. Almost all the sessions are in Raleigh, but panels sometimes hear arguments at other locations.
The Supreme Court, which is the highest court in the state, consists of seven justices who always hear cases together in Raleigh. The only appeals that go directly to the Supreme Court are convictions carrying the death penalty, general rate-making cases from the Utilities Commission, and any split decisions from the Court of Appeals. Otherwise, the court chooses which cases to consider.
The Clerks of the Court
Each of the 100 counties has an elected clerk of court. The clerk's duties include scheduling cases, collecting and managing the fees and judgments that come to the courts, and seeing that all official papers are recorded properly and kept secure. The number of employees provided to each clerk is established by the Administrative Office of the Courts (AOC) according to funds appropriated by the General Assembly. The clerk of court also serves an important judicial function, hearing disputes involving the probate of wills and administration of estates and such other matters as adoptions, determinations of incompetency and partitions of land.
The state is divided into a number of districts for the administration of the courts and for the election of court officials. The orderly organization of districts has changed significantly since the court system was established with 30 coterminous districts twenty-five years ago. Initially, all superior court, district court and prosecutorial districts had the same lines. Beginning in the 1970s, a number of districts were split, sometimes because local lawyers or legislators had come to disfavor a particular district attorney or judge and wanted to create a separate district to elect someone more to their liking.
In some instances, court and prosecutorial districts were divided at the same time. At other times only the prosecutorial district was split, leaving two different district attorneys serving different parts of one judicial district, or the prosecutorial district would remain the same while the superior court district was divided. Only 10 of the 30 uniform districts that existed in 1970 remain untouched. To further complicate matters, in 1989 the General Assembly created a number of new superior court electoral sub-districts to settle a voting rights lawsuit by black citizens.
Due to district splitting and extraordinary growth in a few urban counties, there now are a few districts with 10 times the workload of others. Some urban prosecutorial districts may dispose of 5,000 to 6,000 felonies a year, while smaller districts may act on fewer than 500.
Rotation of Superior Court Judges
North Carolina's superior court judges travel more than any other trial judges in the country. For purposes of rotation, the state is divided into four divisions, and generally each judge rides circuit from district to district within his or her division. Although the scheduling of rotation has changed over time and now is less rigid than before, superior court judges usually are assigned on a six-month basis.
Generally, then, a superior court judge will hold court in one district for half a year and ove to another district in the division for the next six months. In the more urban districts, the judge may stay for several consecutive six-month rotations. When assigned to large single-county districts, judges hold court in the same location every week for the entire six-month period. For more rural districts, especially in the eastern and western ends of the state, the judge may move from county to county within the district and be in no county more than one week at a time.
In addition to the regular rotation schedule, superior court judges are subject to special assignment anywhere in the state. As a result of the rotation system and such special assignments, a superior court judge generally will hold court outside the judge's home district about three-fourths of the time. This practice is intended to insulate judges from local political pressures and assure even-handed justice to outsiders.
Election of Judges
All judges in North Carolina are elected. Beginning in 1998 superior court elections will be nonpartisan. District judges are elected from their districts. In the urban areas, a district court will consist of a single county, but in other parts of the state it may be several counties. Until litigation brought by the Republican Party in the early 1990s, and subsequent legislative changes, superior court judges were nominated in party primaries held in their districts but then subject to a statewide general election. Now the elections are just within the district. All appellate judges are chosen statewide. District court judges are elected for four-year terms, and superior court and appellate judges for eight-year terms.
Until the 1980s, most judicial elections were uncontested, except for some district judgeships in areas where there was true two-party competition. Often, a judge first came to office by being appointed by the governor to complete a term of someone who had retired or died, and then no one ran against that judge at the next election. Sometimes, as judges contemplated retirement, they would time their resignations to occur just after an election so the appointed successor would have the maximum time in office before having to stand for election.
In the 1980s, judicial elections grew increasingly competitive. The Republican Party's success during the 1970s in elections for governor and Congress led it to field more candidates for statewide judicial office in the 1980s. For the first time in a century, the state began to experience true campaigns for superior court and the appellate courts. In a few appellate races, candidates spent over $250,000.
Judicial Standards Commission
The principal mechanism for discipline of judges, other than election, is the Judicial Standards Commission. The commission is a seven-member body that hears complaints against judges and decides whether to recommend that the Supreme Court take action. Three members of the Judicial Standards Commission are judges appointed by the State Bar, and two are lay members appointed by the governor. Based on the recommendations of this body, the Supreme Court can reprimand a judge or even remove him or her from office.
The Judicial Standards Commission finds that nearly four-fifths of the complaints it receives concern matters outside its jurisdiction, and that about a third of the proper grievances warrant some kind of action. Over the last 20 years, the most common discipline has been a private reprimand, but the Supreme Court has publicly censured about a dozen judges and removed five. Another dozen judges have voluntarily left office in the face of serious complaints.
District Attorneys and Public Defenders
District attorneys are also elected in partisan elections, for four-year terms. The number of assistant district attorneys is set by the legislature and varies from two in one of the smaller districts to two dozen in larger, urban districts.
In 11 districts--including all the major cities except Raleigh--the state's obligation to provide counsel to indigent defendants in criminal cases is met, in part, by a public defender's office. In other areas, private attorneys are appointed to represent all indigents and are paid by the AOC. The public defenders are appointed by the senior superior court judges in their districts from nominations made by local lawyers in the district. The number of assistants is set by the General Assembly. The legislature also funds an Appellate Defender Office to assist in representing indigents on appeal.
Like all judicial offices, district attorneys and public defenders and their assistants are full-time positions. The cost of providing indigent defense, through both public defenders and appointed private attorneys, has been one of the fastest growing parts of AOC's budget in recent years and now accounts for more than 15 percent of the state's total expenditures on the courts.
Administration of the Courts
Although the powers are limited, the chief justice is the head of the court system. The office of the chief justice is elected separately from other seats on the Supreme Court. Traditionally, though not always, the governor appoints the senior associate justice to fill the vacancy when the chief justice dies, resigns or retires, and, at least until recent years, that person has been unopposed in the next election.
The chief justice appoints and may replace the director of the AOC. The Supreme Court sets the rules of procedure for the appellate courts, and the chief justice assigns judges. Mostly, however, the chief justice directs the operation of the Supreme Court. The chief justice designates one of the judges on the Court of Appeals as the chief judge for that court, traditionally the most senior judge. The chief justice also appoints a chief district court judge for each district. For superior court, the chief judge, by statute, is the resident judge in the district with most seniority.
The senior resident superior court judge for each district appoints magistrates (from nominations by the clerk of court) for two-terms; appoints public defenders in those districts with such offices; and generally oversees the operation of the court in the district, including the calendaring of civil cases. The district attorney, however, is responsible for setting the calendar for criminal cases--a practice unique to North Carolina.
The chief district judge for each district assigns judges to sessions of court, supervises magistrates, and, together with all the other chief district judges, prepares uniform schedules of the fines to be paid for uncontested minor offenses.
Despite its name, the Administrative Office of the Courts has little to do with the direct, day-to-day management of court dockets. The AOC prepares the judicial department's budget; recommends new positions, primarily on the basis of workload and population formulas; purchases and distributes supplies; collects and reports statistical information systems to keep track of caseloads; and oversees the implementation and evaluation of pilot programs such as court-ordered mediation.
The AOC also advises the General Assembly on the appropriate number of judges, prosecutors and magistrates for each district, and determines the number of clerical employees needed by the court system. All appropriations for those positions and other expenses of the court system go through the AOC, but the AOC does not tell clerks, district attorneys or other local court officials how to use their personnel nor discipline judges or others for inadequate performance.
Key Concepts: Historical Landmarks of the North Carolina Supreme Court
1834 Hoke v. Henderson. Court rules that a state officeholder has a property right in his office--a right found nowhere else in the nation. The ruling proves troublesome for both the state and the jurists who issued it. It was overruled in 1903.
Activity: Merit Selection Debate
Arguments Against Merit Selection
Arguments for Merit Selection