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Transcript: What retired Judge Don Stephens would have told senators about judicial reform

Retired Judge Don Stephens was prepared Wednesday to address the Senate Select Committee on Judicial Reform and Redistricting on behalf of Gov. Roy Cooper but was refused the chance to speak.

Cooper appointed Stephens to express his views and the views of the judges on the bench about the consequences of judicial reform issues before the committee. GOP lawmakers decided that because Stephens did not work for the Executive branch of government, he could not speak.

The refusal prompted Democratic senators to walk out in protest. Stephens said he was not surprised and provided NC Policy Watch with the remarks he would have made had he been allowed.

Here’s what he would have told lawmakers:

Thank you for hearing me. My name is Donald Stephens. Until Nov. 1st of this year, I had the honor and privilege to serve as the Senior Resident Superior Court Judge for Wake County, the capital district. I retired at the mandatory retirement age of 72, after 33 years on the superior court bench.

I came to the superior court bench in 1984. I was elected a resident judge and re-elected five times. Those elections included two partisan statewide elections for that office in 1986 and 1988, a partisan election in my district in 1996 and two nonpartisan elections in 2004 and 2012. So I can attest that I am familiar with the election process … in practically every form.

I believe that the people in my district and the people in [North Carolina] have a strong desire to elect their judges. Historically, that system has worked to bring high quality lawyers to the trial bench – Republicans and Democrats.

I am here today at the request of Gov. [Roy] Cooper to share my views on the state of the trial judiciary in [North Carolina] and whether or not there is some kind of rot or decay that so infects that branch of government that would compel the [N.C.] legislature to take immediate, drastic remedial measures to protect the public.

I have searched the public record for any recent reports of judicial misconduct, judicial scandal, judicial incompetency, or judicial decisions of judges that are embarrassingly incorrect or judicial decisions in which a judge’s integrity has been challenged.

I have found no such reports. I have found no editorials or media coverage suggesting that our courts are in chaos or are malfunctioning or our judges are incompetent.

I have surveyed the leadership of the North Carolina State Bar and of the North Carolina Bar Association on the current quality of the trial judiciary and have found it to be outstanding.

It is my opinion that the quality and integrity of the trial bench [in North Carolina] is above reproach. I have found no evidence to the contrary. None.

I have heard no sworn testimony or information presented to this body or any other legislative committee that challenges or impugns the quality or the integrity of the [North Carolina] trial judiciary.

I understand that the fire trucks are here, but where is the fire? Who saw the fire? Who declared that the judicial house was on fire? You are drawing up plans to rebuild our judicial house that is not on fire and has no structural damage.

Where is any evidence that the quality and integrity of this state’s judiciary is so poor that the constitution of [North Carolina] must be immediately drastically changed?

Who has declared the emergency? On what basis?

Who made the arbitrary decision to stop judicial primaries so Republicans will be denied the opportunity to pick their best judicial candidate and Democrates will have no opportunity to pick their best judicial candidate to run against each other in the general election? All other candidates for non-judicial office in 2018 have the right to a primary.

Why were judges singled out in this way? Are judges somehow being punished for something?

The last judicial race in North Carolina in which there was no primary before the general election occurred in 2014. In that election to fill a vacancy created on the Court of Appeals after the primary was over when a judge unexpectedly retired, 19 candidates filed. The winner gained that office by obtaining 23 percent of the vote.

In such a general election without a primary with 19 candidates to choose from there is no way voters can make informed choices about who would be the best judge. The selection by the voter is more akin to a blind draw, if the voter bothers to vote at all. It is a lottery in which all participants have an equal chance of winning without regard to which candidate is the best qualified. That is no way to pick judges.

Is there some reason that judges have been singled out and punished by eliminating their primary election. They are now required to run together like a herd of cattle. What is the purpose of that? What is the public good of that?

If you ask the public at large to rate the quality and integrity of our three branches of government, I believe that the judiciary would be shown to be highly regarded.

Has the legislature simply declared the quality of the judiciary to be poor because some judges have disagreed with the legislature in their decisions?

Is that the basis upon which the legislature has rated the quality of judges as poor, lacking merit?

Is that the basis for this self-declared emergency.

The fact that we are having this conversation impugns the integrity of every sitting judge in [North Carolina],be they Republican or Democrat because it suggests that there is something lacking in the quality of their work without any evidence to support that accusation or that unfounded assumption.

It is a false premise – an excuse to justify an effort by some members of the legislature to change this system.

The everyday work of trial judges is not political. There is nothing political about trying a murder case, or a child sex abuse case or a medical malpractice case or a personal injury/wrongful death case. What we do in our courts is not political.

All constitutional challenges to legislation are heard in Wake County by a three-judge panel appointed by the Chief Justice.

From 2014 to 2017, our records show that 30 such challenges were filed. After reviewing those complaints, our office asked the Chief Justice to assign a three-judge panel in half of those cases. Of those 15 or so cases, how many do you think were actually of a political nature: the challenge to the opossum drop law – the challenge to rules of evidence limiting recovery for medical bills paid by a third party in a personal injury case (preventing a double recovery) – the challenge to the damage cap on certain types of claims in medical malpractice cases – the challenge to a statute limiting evidence in alienation of affection and criminal conversation cases. Those three-judge panel cases are not political.

I recall that five or six of the cases were of a political nature. I think the challengers won three and the legislature won three.

A three-judge panel is the first court to speak on a constitutional challenge to a statute. The court that speaks last is the court that gets it right. We will all have to wait and see which of those panels got it right.

Out of all the many, many thousands of cases heard in the trial courts of [North Carolina] every year, less than a handful will have any political implications. Those questions will ultimately be answered by the N.C. supreme court.

Many of our superior court judges have never sat on and will never sit on a 3 judge panel to decide constitutional questions.

If you want to pass a constitutional amendment to increase the power of the legislature by allowing the legislature to select the judges who will be eligible for appointment, then say it and own it. Don’t create some charade that suggests that [North Carolina] has a problem with the quality of its judges. We do not.

Let the people of [North Carolina] decide whether or not to give the legislature that additional power, but don’t do it on the false premise that we have a poor judiciary.

People who believe in the importance of an independent judiciary will not favor that change.

People who believe in the high quality and integrity of our judiciary will not favor that change.

People who believe in the right of every North Carolina citizen to elect their judges will not favor that change.

In my opinion, sitting judges of North Carolina will certainly not favor that change.

The Governor of [North Carolina] will absolutely not favor that change.

I believe in a fiercely independent judiciary. A judiciary elected by the people. A judiciary that has no constituency except its duty to the constitution of this state and to the constitution of the United States and to the laws enacted in conformity with those constitutional mandates.

[North Carolina] is entitled to have judges who make decisions without regard to partisan politics or any kind of politics or any improper pressure or influence.

That is how the judicial branch of government should work.

It would be unwise and imprudent to create any system of judicial selection in which judges are selected by legislators and then have those same legislatively selected judges rule on the lawfulness of statutes enacted by the legislators who selected them.

Such a system weakens the independence of the judiciary and creates a judiciary beholding to the legislators who selected them.

A decision to make such a dramatic change to the constitution of [North Carolina] should not be made in haste, should not be made to correct a problem that does not exist and should not be made in a hyper-partisan atmosphere by the unilateral vote of one political party.

The house of [North Carolina’s] judiciary is not on fire. It does not need to be rebuilt. There is no emergency. We have a judiciary that every citizen in North Carolina can be and should be proud of.

I obviously have a great passion for the superior court where I have devoted the major part of my 47 years as a trial lawyer and a trial judge. Thank you for hearing me.

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