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Senate passes victims’ rights, judicial vacancy selection constitutional amendments

The Senate passed two constitutional amendments Monday night — one to expand victims’ rights and another to give lawmakers more power over judicial vacancy appointments.

Both amendments — Marsy’s Law for North Carolina and the “Judicial Vacancy Sunshine Amendment” — will be up for a vote in the House next. If they pass, they’ll be put before the voters in November, with the details to be determined later by the legislature.

Marsy’s Law, titled “Strengthening Victims’ Rights,” would expand the definition of victim and enshrine the rights of victims to be heard in criminal court proceedings. The bill was updated in a committee meeting Monday to address concerns about confidentiality in juvenile court, which won the support of Administrative Office of the Courts Director Marion Warren.

It passed out of a later committee without any “no votes,” although a couple people didn’t say “aye,” and only one person voted against it on the Senate floor, Sen. Milton “Toby” Fitch Jr. (D-Halifax).

“We are the legislative branch, where we make laws we really ought to be careful where we step into the judiciary to practice law,” Fitch said.

He added that victims currently have rights enshrined in the constitution and that he didn’t see a point to the bill. Rep. Tamara Barringer (R-Wake) quickly corrected him, noting that victims of numerous crimes weren’t included in the current constitution, including incest, breaking and entering and financial identity fraud.

“This is not a ploy, this is reality,” she said. “These victims deserve respect and dignity.”

Lawmakers didn’t discuss a new fiscal note posted Monday with the bill estimating it would cost $8.8 million to implement in Fiscal Year 2021-22 and $11.2 million the following Fiscal Year. A prior confidential fiscal note estimated it would cost $16.4 million to implement and $30.5 million annually in subsequent years.

***

The Judicial Vacancy Sunshine Amendment, like Marsy’s Law, was updated in a Monday Senate committee. The version passed (almost along party lines) by the Senate includes language that requires the General Assembly choose a candidate from a “nonpartisan judicial merit commission” and that deems no branch of government get a majority of appointments to that nine-member commission.

The commission would vet judicial candidates nominated by the public qualified or unqualified, then submit the names to the General Assembly. Lawmakers would choose at least two candidates determined to be qualified to give to the Governor for appointment to judicial vacancies.

Details like how the commission gets appointed and what criteria they would consider to deem a judicial candidate “qualified” are not included in the amendment, and if passed, would later be determined by the General Assembly.

Sen. Paul Lowe Jr. (D-Forsyth) called the constitutional amendment a “pig in a poke” during the committee meeting.

“The devil is always in the details, and we’ll let you know about the details after,” he said. “I have a real problem with that.”

GOP lawmakers have been discussing merit selection for a year, but without real input from Democrats, and without transparency with regard to the process they ultimately unveiled a little over a week before the session was set to end.

During floor debate, Sen. Warren Daniel (R-Burke) called the current gubernatorial appointment process undemocratic and paternalistic.

“This process does not instill public confidence in the judiciary,” he said, adding that the amendment would “shine a bright light on the current closed-room backdoor process.”

He, like other GOP Senators, referenced a flyer that was produced and hung on the walls of the committee rooms, naming judges appointed by governors after losing elections. The flyer was titled “When Governors ignore the will of the people” — it was largely flawed in the information presented in that several of the judges listed went on to win elections after appointment.

Democratic Senators were dismayed over the decorum of such “materials.”

“You are maligning the character of judges who are not here to defend themselves,” said Sen. Terry Van Duyn (D-Buncombe).

She raised her voice in defense of Buncombe County Superior Court Judge Alan Thornburg and said the poster his face was pictured on was shameful.

Sen. Floyd McKissick (D-Durham) agreed. He said in all his years at the General Assembly (only three members have been there longer), he had never seen materials passed out like the poster that was plastered on the committee walls.

“We ought not be walking down this path,” he warned.

The poster was the point of several speeches during the debate over the judicial selection measure. The name and language contained in the constitutional amendment was also a point of contention.

“If you want to do merit selection; do merit selection,” Fitch said to his Republican colleagues. “When you got the numbers, you can do what you want to do, and you got the numbers now.”

McKissick said the language misleads the public, and that if lawmakers want to pass a judicial selection amendment, they should be clear and unambiguous about it.

“This amendment, the way it is, it’s a fraud,” he said.

Sen. Phil Berger (R-Rockingham), who started the “merit selection” debate in the first place, told members they could quarrel over how the amendment was drafted but noted it was a significant improvement on the system we currently have.”

NC Voters for Clean Elections Coalition Director Melissa Price Kromm had a different opinion when she spoke during public comment at a committee meeting earlier in the day.

“Clearly, this is just another attempt by this legislature to put forth constitutional amendments to give the legislature more power and control,” she said. “When the people vote on this amendment, they will know this is about giving the legislature power to choose judges in vacancy situations. … Justice may be blind, but the people of North Carolina will see right through this long-term scheme to take away our right to vote for judges.”

The House will vote next on the amendment. It was not put on Tuesday’s schedule (though Marsy’s Law was).

GOP lawmakers posted this flyer on the walls of committee meetings Monday where lawmakers discussed a judicial selection constitutional amendment. Note that the information contained in the poster is not entirely accurate.

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