The end of the N.C. legislature's war on judicial independence?

Beginning in 2013, the Republicans in control of the North Carolina General Assembly tried to reshape the state's courts and keep certain judicial candidates from winning, all in an effort to get their preferred judges on the bench. But last year Republicans lost the legislative supermajority that had allowed them to override the Democratic governor's vetoes. 

For the judiciary, the consequences of the diminished majority became apparent when a bill was recently introduced that would have impacted North Carolina's new Democratic chief justice. Lawmakers quickly backed down amid public outcry, suggesting that the long-running Republican effort to restructure North Carolina's courts may have ended.

The state Senate's initial budget proposal halved funding for the chief justice's staff despite an overall budget surplus. The provision would have made Chief Justice Cheri Beasley the only appellate judge in North Carolina with one clerk.

State Sen. Paul Lowe, a Winston-Salem Democrat, called the budget cuts "dastardly" and noted, "We've got our first African-American female chief justice. And we haven't taken resources away from others that served this position." 

Sen. Danny Britt, a Robeson County Republican, said lawmakers mistakenly believed that the positions were would remain* vacant. Facing scrutiny from Democratic legislators and the press, senators voted unanimously to restore the funding cuts. 

The proposed budget cut was just the latest move in a long Republican campaign to undermine the independence of the North Carolina judiciary.

In 2015, for example, the legislature passed a bill that would have ensured the state Supreme Court kept its conservative majority no matter the outcome of the 2016 election. Then last year, lawmakers passed a bill making changes to election ballots that would have disadvantaged Democratic candidate Anita Earls, a former civil rights lawyer who went on to win. Both bills were struck down as unconstitutional. Lawmakers also tried to amend the constitution last year to take away the governor's power to appoint justices to vacant seats, but voters rejected the measure.

And when the chief justice position became vacant earlier this year, Republican legislators pushed Democratic Gov. Roy Cooper to appoint the court's only Republican justice to the position, noting that he had seniority. Cooper said he picked the best person for the job.

Policing judges' ethics 

Just weeks after Cooper appointed Beasley, Britt introduced a bill to radically change the state's process for enforcing judicial ethics. The bill would have transferred authority over ethics complaints against judges from the Judicial Standards Commission (JSC) to the leaders of the North Carolina Bar Association, which includes more than 20,000 lawyers, judges, and legal professionals.

No state currently gives its bar association the power to police judicial misconduct, according to Cynthia Gray with the National Center for State Courts. North Carolina previously gave authority for issuing reprimands for judges' ethical misconduct to the JSC, which includes five judges, four lawyers, and four non-lawyers.

But in 2013 the legislature passed a law transferring that power to the state Supreme Court, which then had a conservative majority. One Democratic legislator at the time called the new law a "plot to cover up potential claims against sitting justices," as NC Policy Watch reported.

Since then, though, there has been a dramatic change in the composition of North Carolina's high court, which now has a 6-1 Democratic majority. The recent bill would have still required the state Supreme Court to issue a reprimand or remove a judge from office, but the court could only act if the state bar were to recommend a sanction for misconduct. 

The state Senate decided not to overhaul the ethics investigation process, but it unanimously approved a narrower version of the bill that prohibits citizens from filing complaints based on a Superior Court judge's ruling until an appeal has been filed. Gray said that no state requires an appeal before filing an ethics complaint. The bill is pending in the state House. 

During a legislative committee hearing on the bill, JSC Executive Director Carolyn Dubay expressed concerns that litigants who can't afford to pay a lawyer to file an appeal would be barred from filing ethics complaints. Dubay also noted that the revised bill applies to any complaint that's "based substantially" on a judge's ruling, while the earlier version applied to complaints based "solely" on a ruling. This could lead to complaints with legitimate accusations being delayed, she said.

But what happened after Dubay delivered her testimony shows that the Republican majority may not be done tinkering with the judiciary: A few weeks later, the state Senate passed a budget that eliminates the JSC's executive director position. The proposal will have to be reconciled with the House budget, which funded Dubay's position, before it's sent to the governor's desk.

*Correction: This story originally said that Republican legislators mistakenly thought the positions were vacant. The positions were vacant on the day the bill was introduced but filled soon after.