Former NC Appeals Court Judge Doug McCullough, left – pictured here after swearing in former NC Transportation Secretary Tony Tata – retired early from the bench, but not as soon as Republican leaders wanted him to. TRAVIS LONG N&O file photo
Former NC Appeals Court Judge Doug McCullough, left – pictured here after swearing in former NC Transportation Secretary Tony Tata – retired early from the bench, but not as soon as Republican leaders wanted him to. TRAVIS LONG N&O file photo

State Politics

A judge, a Vegas phone call and the NC GOP legislative effort to remake the judicial branch

By Anne Blythe

ablythe@newsobserver.com

August 22, 2017 02:53 PM

UPDATED August 26, 2017 04:59 PM

RALEIGH

Doug McCullough was five months away from his deadline for mandatory retirement from the state Court of Appeals bench when the chairman of the state Republican Party gave him a call.

Democrat Roy Cooper would become governor in several weeks and Robin Hayes, the former U.S. congressman on the other end of the line, wanted McCullough to consider resigning early from his elected seat so Republican Pat McCrory could appoint a replacement in the waning days of his administration.

The Republicans not only had lost the governor’s office with Cooper’s victory. They also had lost a majority on the state Supreme Court in the November elections.

That phone call from North Carolina’s Republican Party chairman over the Thanksgiving holiday weekend last year illustrates how the political focus on North Carolina’s courts has sharpened in recent years and shows no signs of easing anytime soon.

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In the months since that 15-minute conversation that left McCullough with concerns about what’s happening to the judicial branch of government, the General Assembly, the lawmaking body for which the judiciary provides checks and balances, has made many changes to the courts, both large and small.

This past legislative session, the Republican-led legislature made all judicial elections partisan, even the district courts that handle low-level crime, traffic infractions and divorce, custody and child support cases. Now, with lawmakers due back in Raleigh to correct unconstitutional gerrymanders of state House and Senate districts, many court organizations are on high alert about the potential for more change.

McCullough was in Las Vegas with his wife, visiting her family for the Thanksgiving holidays, when Hayes called. They were sipping coffee under an umbrella by the pool when the 71-year-old appellate judge’s phone rang.

“It was quite unexpected,” McCullough recalled.

Under state law, judges must retire from the bench at 72, and McCullough, a Republican, would reach that milestone in late May.

Hayes proposed an arrangement through which McCullough would step down earlier than planned so McCrory could name a replacement who would appeal to Republicans.

Hayes said in a telephone interview earlier this year that he was simply asking McCullough to consider the idea in an effort to help the party, but added that he did not pressure him.

McCullough offered several reasons why he was troubled by the request: Not only would he lose pay and benefits by stepping away early, but he had cases on his desk and opinions to consider and draft that he did not want to leave for others. McCullough said he suggested a way the lawmakers could tweak legislation so judges approaching retirement age could stay until a successor was elected, but said Hayes told him he doubted such a proposal would go anywhere.

“That was when I realized, it wasn’t keeping a Republican in the seat that they were interested in,” McCullough said. “It was getting their Republican in the seat.”

Since Republicans took control of the state House and Senate in 2011, and had four subsequent years with a Republican governor, key provisions of the state’s sharp political swing to the right have been challenged in state and federal court.

Legislative leaders have spent more than $13 million on outside attorneys to represent them in the cases, sometimes pairing them with lawyers from the state attorney general’s office.

Though the legislators have been upheld on at least three of the challenges, they have been overturned on many more, such as the maps drawn to elect state and federal lawmakers, an election-law overhaul that included a voter ID requirement and an attempt to change the way sitting Supreme Court justices run for re-election.

During this year’s regular legislative session, lawmakers focused more closely on the courts. They reduced the size of the appeals court by three seats with at least two Republicans close to retirement age and the Democratic governor in a position to appoint replacements. They decreased the number of emergency judges by nearly 70 percent and cut funding to legal aid organizations that help low-income people. They made a $10 million cut to the state attorney general’s office budget, forcing Democrat Josh Stein, the former state senator who was elected to the office in November, to cut 45 positions and lay off career attorneys. Republicans said the cuts allowed them to shift funding to the hiring of more assistant district attorneys across the state.

In late June, as that session was about to close, Rep. Justin Burr surprised many when he rolled out pictures of maps on Twitter that proposed vast change to districts used to elect judges and prosecutors.

The maps were not adopted, but the lawmakers left open the possibility for the issue to be reconsidered in August or September.

Electing or selecting judges?

Another idea being floated is changing how North Carolina judges get a seat on the bench. Instead of having them stand for election, and letting voters choose who rules in the courtroom, there has been talk about pushing for a merit-selection system through which a few would select judges.

North Carolina’s Chief Justice Mark Martin, a Republican, told attorneys and others at an N.C. Bar Association meeting in June that he planned to ask lawmakers to give voters an opportunity to decide whether the state should continue electing judges or move to an appointment process.

Jim Blaine, chief of staff for Senate leader Phil Berger, a Rockingham County Republican, was at a meeting of the N.C. Association of District Court Judges earlier this month and presented the idea to the organization’s board members, offering up one model in which legislators would have a key role in appointments, according to the association’s president, Judge Elizabeth Heath of Lenoir County, and other judges who were there.

Blaine and Berger’s spokeswoman did not respond to requests for comment.

To switch from electing judges to appointing them would require an amendment to the state constitution subject to the approval of voters.

There also was a bill introduced by Sen. Jeff Tarte, a Cornelius Republican, and Sen. Dan Bishop, a Mecklenburg County Republican, to divide Mecklenburg into three districts for District Court elections – designed to make it more competitive for Republicans.

“When I came here in January, I didn’t anticipate that I’d be up on the House floor so often speaking out against changes to the judiciary,” said Rep. Joe John, a Wake County Democrat serving his first year in the General Assembly and former state Court of Appeals judge.

John has been so concerned about the legislative efforts to change the courts that he has held town halls to inform people and get their feedback.

“Generally speaking, the people are really — it’s not so much angry — it’s dismayed that the legislative branch of government is trying to control all branches of government,” John said.

What has troubled the freshman legislator is how many of the changes are proposed and adopted without study or input from those who work in the justice system every day.

He worries that partisan politics are driving the changes as some of the lawmakers have acknowledged their attempts to reshape judicial districts to be more favorable to Republicans.

“That’s the fundamental problem,” John said. “These folks view the judicial branch as a political branch and it’s just not. If they keep going the way they’re going, they’re going to destroy democratic process.”

Republicans have been critical of the judiciary in North Carolina, saying that Democrats for the near century they were in power in the legislature shaped judicial districts and the appointment process to favor their party.

In February, after a panel of three state judges ruled against the General Assembly in a power struggle with the governor, Berger’s office sent out a statement for the press from the Senate leader and Tim Moore, speaker of the House, titled “Legislative leaders to activist judges: If you want to make laws, run for the legislature.”

Redrawing court maps

This year when Republicans restored partisan elections for lower-level judicial elections – they had become nonpartisan in the 1990s and 2000s – they said it would give voters helpful information. Democrats said it would further politicize the courts.

The lawmakers control the purse strings for the courts, and with all the focus on the judiciary lately many judges and high-ranking court officials have declined to discuss the changes publicly, saying they worried about funding cuts if they were too critical.

After winning control of the legislature, Republicans ended the public financing of judicial elections. Since then, spending on campaigns has increased as well as the size of contributions from organizations and political action committees from outside North Carolina.

Burr says the maps he presented were not drawn to give Republicans an advantage, but rather to better align judicial and prosecutorial districts that have been tweaked piecemeal through the years.

“I think these districts quite frankly should have been cleaned up a long time ago,” Burr said, highlighting several counties such as Mecklenburg with district lines set up so half the county’s population elects five of its seven judges, and the other half elects just two.

In recent weeks, Burr, a Stanly County Republican and bail bondsman, has been traveling around the state talking to groups about his plans and listening to their ideas.

Burr said he did not seek out prosecutors and judges before releasing the maps in June because he worried critics would be resistant to the conversations he said are happening now as he travels the state.

“The hard thing is when you roll plans out early like that is the people who don’t want change, their whole time is spent trying to undermine them,” Burr said.

Burr said he could put the maps before legislators again in the coming weeks or months, but he rejected calls for a study commission.

“We’ve studied it to death,” Burr said. “If these judges wanted to make changes, where have they been? In Raleigh, ‘study’ is code for kick the can down the road.”

The district court judges’ association recently decided to hire lobbyists Charles Neely Jr. and Richard Zechini of the Williams Mullen law firm. The hires came after the maps and other proposed changes to the courts came up with little notice.

“Our concern is to make sure anything that is done is fair, nonpartisan and has the impact of getting highly qualified judges in office,” said Heath, president of the association.

She said the recent presentation by Blaine about the possibility of merit-based selection of judges was informative. “My feeling was this was a very early open discussion,” Heath said.

Bob Orr, a former state Supreme Court justice and Republican who has been critical of some of the recent actions by the General Assembly, said he was worried about how some of the changes to the courts were being proposed.

“To me, one of the troubling aspects is that a lot of it seemed to be internally generated by the legislature. It wasn’t in consultation with the chief justice or the people in the court,” Orr said. “I don’t get any sense that this is a collaboration. It seems like this is just somebody or some small group saying, ‘Let’s make these changes because it’s a good idea.’ 

The lack of explanation and inclusion of a wide group, Orr said, can leave the impression that politics motivates much of the effort to shape a court system where “in the greater scheme of things most cases don’t have a political angle to them.”

“People, special interest groups, political entities have historically tried to, if not overtly, subtly game the system to shape the courts,” Orr said.

Town hall on the courts

Orr, McCullough and two other former judges, Patricia Timmons-Goodson and Linda Stephens, two Democrats, are scheduled to be part of a panel discussion at the Junior League of Raleigh Center for Community Leadership on Aug. 29. The program, “Do Independent Courts in NC Matter?” is sponsored by PoliticaNC, an organization formed in 2013 in response to the state election results in 2012 when Republicans won full control of state government.

Earlier this month, almost nine months after receiving that phone call from the state Republican Party chairman, McCullough was still trying to sort through the rationale for the legislature’s focus on the courts and the request for him to step down. At first he weighed whether there was a ruling or decision he made that had upset someone.

After telling Hayes he was not going to resign while McCrory was still in office, McCullough decided to step away from his post early after all. He did it in a brief window of time after lawmakers had adopted a bill to shrink the appeals court to 12 seats to keep the new Democratic governor from appointing retiring judges’ replacements.

Cooper vetoed the bill, and before lawmakers could vote on whether to override the veto, McCullough stepped down and allowed Cooper to appoint his replacement, Democrat John Arrowood.

McCullough said shrinking the appeals court, which hears cases in panels of three, would cause logistical problems. “I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on,” McCullough said at the time.

For months, McCullough did not want to publicly share the details of his phone call with Hayes.

But earlier this summer, he decided to let a small group of Carteret County Republicans in on the details. At least one had come to appreciate the stand that McCullough said he took to protect the courts from overt politicization.

“This one old Downeaster came up to me afterward and said, ‘Son, when I heard about what you did, at first I thought you done wrong. But you done good.”

Anne Blythe: 919-836-4948, @AnneBlythe1

Note: A previous version of this story misstated when the group PoliticaNC formed.

Want to weigh in on changes to the courts?

PoliticaNC is holding “Do Independent Courts in NC Matter?” in Raleigh.

When: 6:30 p.m. to 8 p.m. Aug. 29.

Where: The Junior League of Raleigh Center for Community Leadership, 711 Hillsborough St., Raleigh.

Who’s on the panel: Bob Orr, a former N.C. Supreme Court justice, Doug McCullough, a retired N.C. Court of Appeals judge, Patricia Timmons-Goodson, the first black woman to serve on the state Supreme Court and a former judge on the N.C. Court of Appeals, and Linda Stephens, a former state Court of Appeals judge.

Another panel discussion is scheduled in Durham.

When: 5:30 p.m. to 7 p.m. Aug. 31

Where: 4th floor of Durham County Justice Center, 510 S. Dillard St., Durham.

Who’s on the panel: Representatives and former judges Joe John, a Wake County Democrat, and Marcia Morey, a Durham Democrat, as well as Orlando Hudson, Durham County’s senior resident Superior Court judge. Melissa Kromm of NC Fair Elections is moderating.

Remaking the courts

Other changes adopted by the N.C. General Assembly this year that have an impact on the judicial system include:

Cuts to Legal Aid

Lawmakers cut $1.6 million in state funds that had gone to Legal Aid of North Carolina, Legal Services of Southern Piedmont and Pisgah Legal Services, organizations that help defend low-income clients in court, a change that went unexplained for weeks. Then, this month, House Speaker Tim Moore, a Republican from Cleveland County, told the Associated Press the provision had been included because he had heard from landlords that some of the attorneys had been overly rigorous in their defense of renters in landlord-tenant disputes.

“There were examples being brought to a number of us, where for example you had a ‘mom and pop’ who were landlords in a lease and where they were coming in and getting served with discovery and all these things and a lot of frivolous motions,” Moore told reporters when he returned to Raleigh last week.

“For us, our housing work is key to mitigating poverty,” George Hausen, executive director of Legal Aid of North Carolina, said recently. “We engage in housing advocacy because housing instability, i.e., evictions and foreclosures, and dangerous and hazardous housing conditions cause — in children and adults — physical and mental health problems that exacerbate poverty. Can a public interest organization possibly be too aggressive when we’re talking about preserving the physical and mental health of children?”

Cutting the number of emergency judges

Emergency judges typically are retired judges called back into service when a judicial district needs help because a judge has an extended illness or a conflict of interest or leaves a seat vacant because of retirement, death or other reasons.

The budget requires the Administrative Office of the Courts to keep an active and inactive list of emergency judges for district and superior courts. The active list for emergency superior and special superior court judges is limited to 10 judges. It’s 25 judges for district court cases.

Prior to the budget changes, there were 72 emergency district court judges and 42 emergency superior court judges.

Already, judicial districts are feeling the impact of the cuts and seeking help from the state Administrative Office of the Courts, and they have been canceling court sessions.