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Damning new report: NC General Assembly is forcing state judges to “criminalize poverty”

A new report from the good people at the North Carolina Poverty Research Fund is shining new light on an important area in which the General Assembly has been doing its worst to attack and undermine the independence of the judiciary: the micromanagement of court fines and fees.

The report is entitled “Forcing Judges to Criminalize Poverty: Eroding Judicial Independence in North Carolina” and in it, authors Gene Nichol and Heather Hunt build on their past research efforts regarding the burdensome nature of court fines and fees for poor people. As Nichol and Hunt explain, state lawmakers have, through their repeated enactment of news laws in recent years limiting the ability of judges to use their discretion in meting out fines and fees, done great damage the basic concept of of an independent judiciary.

This is from the introduction:

In 2017, the legislature piled on. It amended the court fees law to prohibit any waiver unless “notice and opportunity to be heard” was presented to all government entities potentially receiving funds from court fees. The notice must proceed by first class mail, to apparently hundreds of agencies, at least 15 days prior to any granted waiver. It, too, is a first-in-the-nation hurdle — consuming court time and money and requiring secondary hearings. State judges reportedly believe the goal of the agency notice is to make “the process to waive a court fee so burdensome” that judges simply won’t bother — tightening the screws on judicial discretion. Early this year the waiver law was altered again, demanding that the AOC report annually to a legislative oversight committee “on the implementation of the notice … to government agencies” requirement.

We make the claim here that the mandated “shaming” report and the absurdly burdensome agency notice requirement unconstitutionally interfere with the independence and integrity of North Carolina courts. The Supreme Court of North Carolina, echoing the state constitution’s demand that “the legislative, executive and judicial powers be forever separate and distinct,” has held that the separation of powers principle is violated “when the actions of one branch prevent another branch from performing its constitutional duties.” The General Assembly has given North Carolina courts the power to waive most court-ordered fees under state law. Despite that grant of authority, the annual waiver report and the uselessly laborious agency notice requirement are designed to place a heavy (legislatively-crafted) thumb upon the scales of such judicial determinations. A legislature may grant courts jurisdiction to adjudicate various matters. It may not, having granted such authority, then attempt to compel judges to exercise that power in favor of (or against) a particular litigant. Doing so breaches the independence required by American courts. The breach is made even more worrisome when waiver is, in numerous instances, mandated by the United States Constitution….

Of course, the North Carolina General Assembly’s treatment of court fee waivers is hardly its only recent attack on the integrity and independence of the state court system. It has, in the past decade, ended public financing in judicial elections, re-introduced partisan judicial elections, curbed jurisdiction in constitutional challenges, intervened by statute to protect a Republican incumbent justice, manipulated the size of the court of appeals, eliminated judicial primaries, re-districted disfavored Wake and Mecklenburg county courts, moved to reduce gubernatorial appointments, sought to take over the judicial appointment process and threatened judges with the prospect of two year terms. The head of the Republican Party has threatened to impeach judges who rule against the party. So, for North Carolina legislators, interfering with the independence of courts is hardly foreign ground. The General Assembly’s anti-waiver scheme, however, marries two of the legislature’s principal themes of the last decade: attacking the independent functioning of the courts and crushing the prospects of low-income North Carolinians. It is unconstitutional to force judges to step on the necks of poor Tar Heels.

Click here to read and share the full report.

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