Blue Lights to Black Robes? The Problems with House Bill 397
Photo by: Cole Hayes
The North Carolina House of Representatives recently filed a controversial bill that would allow superior court clerks, magistrates, sheriffs with at least ten years of experience, and law enforcement officers with 25 years of experience to become District Court judges. House Bill 397, known as the “Expand District Judge Eligibility” bill, is sponsored primarily by Justin Burr of Albemarle, Jeff Collins of Rocky Mount, and Mike Stone of Sanford. The bill rewrites Section 22 of Article IV of the North Carolina Constitution and adds the above-mentioned personnel to the already specified law professionals who are eligible for election or appointment to judgeships.
As Section 22 currently reads, only licensed attorneys are eligible for election or appointment to Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of the District Court. The bill states that the amendment will be “submitted to the qualified voters” of the state in the November 2014 election, if the bill makes it that far. Bill 397 would have to receive a three-fifths vote in the General Assembly to be placed on the statewide ballot, which would be difficult to obtain since many legislators are lawyers themselves.
Putting a strain on fairness and impartiality
As one could imagine, having these particular non-lawyers presiding over district courts would present enormous problems for the fairness of North Carolina’s judicial system. One local attorney called the bill “insane” and a “truly idiotic move.” As he points out, a judge should be impartial, but this bill would allow people with preferences for law enforcement to be elected or appointed as judges. Magistrates already do not have to be licensed attorneys, but they have limited power as a result – they can set bail, issue warrants to law enforcement, and can accept guilty pleas and payments of fines for traffic violations and minor misdemeanors. While a magistrate elected to a district court judgeship would hopefully remain impartial, because of the magistrate’s close relationship with police, there is a strong potential for bias in many circumstances – a bias in favor of law enforcement that could negatively impact defendants.
The potential bias of magistrates is nothing compared to the obvious impartiality issues that exist if law enforcement officers themselves could sit as judges. Even if a former sheriff or long-time police officer could theoretically issue an evenhanded opinion for a criminal defendant, there would still be a presumption of prejudice and an air of impropriety that would not sit well with the core tenets of constitutional law or of the legal profession.
Creating problems with the application of ethics rules
A major ethics problem would also occur if this bill were to pass. Since these non-lawyers would not have to be licensed legal professionals to become judges, it is unclear how ethical obligations that apply to current district court judges would apply to the newcomers. If this bill becomes the new standard, situations may arise in which a police officer arrests an individual, is elected or appointed to a judgeship, and later presides as the district court judge for that particular defendant- depending, of course, on the speed of the judicial system and when the appointment occurs. However, if the police officer had been a lawyer and was now serving as the presiding judge, he could not serve as a judge for a former client in the same matter due to legal ethics rules.
Violating the North Carolina Code of Judicial Conduct
When comparing this Bill to the North Carolina Code of Judicial Conduct, a whole treasure trove of serious ethical issues is uncovered. Perhaps the most relevant canon of the Code is Canon 2: A judge should avoid impropriety in all his activities. Part A states that “a judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Public confidence in the impartiality of a judiciary consisting of former law enforcement officers would not be promoted through the enactment of this bill, which would go against the Code and all certainty the public has in the justice system. Police officers and sheriffs, by the very nature of their jobs, have been trained to think and look at situations in a certain way – and there is nothing inherently wrong with this. But when law enforcement officers are placed into a circumstance in which they are judging the very people they have seen as a danger to the public, the importance of a fair trial has the potential to fall to the wayside. These law enforcement officers may not be able to stop analyzing through that lens overnight, especially if they have the years of experience Bill 397 requires.
Another important part of the Code that would be a problem is a judge’s adjudicative responsibilities. Canon 3 Part A(1) states, “a judge should be faithful to the law and maintain professional competence in it.” A non-lawyer judge might not have trouble being faithful to the law, but maintaining professional competence is another matter.
First, non-lawyer judges would have to know what the law is in order to be able to apply the law to the case before them. Lawyers have had to go through three years of schooling in order to be able to apply the law to their clients’ situations, and have had to pass the Bar exam to meet the professional competence requirements. A non-lawyer judge has had neither experience. This is a learning curve that is too high to meet – studying up on the law cannot replace experience.
Second, there is the question of how to define ‘professional competence.’ It would only be appropriate to hold non-lawyer judges to the same professional competence standards as the other lawyer judges on the bench, and this professional competence standard is dictated by the North Carolina Bar. It would not make sense to hold non-lawyer judges to a professional competence standard of law enforcement officers, as they are not in the law enforcement profession once they become judges. It would also be illogical to hold non-lawyer judges to a different standard than current district court judges who are attorneys because all hold the same position. Non-lawyer judges would be able to skirt the requirement if they were elected or appointed to their positions if Bill 397 were to take effect.
Lastly, among other issues in the Code, is a non-lawyer’s administrative responsibilities as District Court judge. Canon 3 Part B(3) states that a judge should “take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” In order to recognize when unprofessional conduct occurs in the courtroom, one would assume that the judge would be knowledgeable about and understand the Rules of Professional Conduct governing lawyers. Current District Court judges have had to work for years as lawyers under these rules, have passed the Multistate Professional Responsibility Exam (MPRE), and must know when ethics issues present themselves in day-to-day practice. Expertise in ethics rules is expected from clients, and courtroom decorum is a long-standing legal tradition that has been codified through the Rules. However, a non-lawyer judge would likely experience problems detecting some instances of lawyer impropriety. It would be difficult for a non-lawyer judge in those situations to make an appropriate disciplinary judgment if they have never had to work under the Rules of Professional Conduct themselves – rules that do not apply to their original profession at all.
Are non-lawyer judges effective in other states?
To see the potential impact of non-lawyers presiding in courts, take New York as an example. In New York, local judges in town and village courts do not have to be lawyers in order to rule in fairly serious cases. A 2006 New York Times investigation of these courts lasted over a year and uncovered many judicial abuses and errors. People were “sent to jail without a guilty plea or trial,” and defendants were “refused lawyers, or sentenced to weeks in jail because they cannot pay a fine.” According to the investigation, people in New York have been denied the right to a trial, denied an impartial judge, and denied the presumption of innocence. In one case, a 76-year-old man who contested a speeding ticket in a court outside Ithaca was jailed without warning for three days because he called the sheriff’s deputy a liar. He spent two years and $8,000 before a state appeals court ruled his jailing improper.
In another instance, a mother of four attempted to take out a protection order against her husband, whom the police said choked her, kicked her in the stomach, and threatened to kill her. The judge, a former state trooper, refused the order and later told his clerk that “every woman needed a good [beating] every now and then.”
While the proposed North Carolina non-lawyer judges have more of a standard when compared to the New York non-lawyer judges – the New York judges can be anyone, from boat haulers to truck drivers – there is still a strong possibility that impartiality would be overlooked if Bill 397 were passed.
Conclusion
There may be many honorable law enforcement officers, sheriffs, and magistrates in the state of North Carolina who would be up to the task of becoming a district court judge, and one would like to give them the benefit of the doubt that they would serve impartially and evenhandedly. People like the idea of having law for the people, by the people. But the presumption of impropriety, the potential for injustice, and the likelihood of the failure of professional competence amongst judges, not to mention the violation of the Rules of Judicial Conduct that would occur, far outweigh any benefit the Bill would have. Judges are supposed to be the sentinels of the justice system, policing each other and the lawyers before them while issuing as fair and unbiased opinions as possible. Allowing non-lawyer judges to sit on the district court bench would create more problems than the legislature could solve.
Sarah Bowman is a second-year student and staff writer for the Campbell Law Observer. She may be contacted at
se**********@em***.edu
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