November 2010 President's Column
Preserving a Strong and Independent Judiciary
By A. Todd Brown
The November 2 elections are over. We have either incumbents or newly elected judges commencing their public service in Mecklenburg County, the 26th Judicial District. It is essential, therefore, that we send a clear and unambiguous message that we support the preservation of a strong and independent judiciary, and that we will scrutinize tactics which erode the impartiality of the judiciary and the public's perception of that impartiality.
Our federal and state constitutions establish a system of three separate branches of government. That system remains a model for the rest of the world. An indispensable element of our system is an independent judiciary. One free of political influence. One free of improper influence by litigants or their counsel. One reflective of the society in which we live. One intent on protecting individual liberties. An independent judiciary is not one that is free to decide matters based on whim or prejudice, but rather one that is capable of adjudicating cases based on the facts and the rule of law. It must exist without political pressure, retribution, or fear of attack or concern for personal safety. Increasingly, however, such ideals are subject to erosion.
More than 80 percent of the judges in the states are elected. It is an unfortunate truth that our legal system, and frequently our elected judicial officers, has been subjected to frequent and inappropriate attacks. Nationally and locally, we have seen judges become the subject of political rhetoric and ridicule, investigation by politically motivated individuals or groups, and confrontation by former litigants oftentimes merely because of disagreement with judicial rulings. We have witnessed verbal attacks, threats, and intimidation against judicial personnel and their families. Reportedly, interest groups have spent large sums on advertising targeting judicial candidates, in an attempt to influence voters and outspend the candidates themselves. And it remains to be seen whether the U.S. Supreme Court's recent decision in Citizens United v. Federal Election Commission, which opened the door for corporations and unions to spend large amounts of their own funds (as opposed to forming a PAC) on broadcast endorsements, will have a positive, negative, or neutral effect on judicial elections.
As lawyers, we have an obligation to speak out against wholly unwarranted criticism of judges and our system of justice, irrespective of the source. As lawyers, we are uniquely situated, and perhaps the best equipped, to help defend our system of justice. The MCB's mission focuses in part on improving and preserving the administration of justice. Our leadership has endorsed maintaining a strong and independent judiciary, and we have made it a part of our strategic objectives. The MCB, as appropriate, will register its disagreement over mistreatment of judges and disrespect for the rule of law.
Practicing lawyers can be in the vanguard by modeling the exemplary conduct and respect that the judiciary deserves. At the recent new lawyer CLE and orientation sponsored by the MCB's Young Lawyers Division, Senior Resident Superior Judge Richard D. Boner and Chief District Court Judge Lisa C. Bell addressed new lawyers on the importance of deference and professionalism toward the judiciary. Judge Boner regaled the new lawyers with a tale about a young lawyer utterly confounded by his inability to find in the law books any reference to that mysterious yet obviously well settled 85/40rule cited by the judge. Judge Boner explained that reference to the 85/40rule is his standard retort to lawyers who openly exhibit dissatisfaction with one of his court rulings -- take Interstate 85 north, then take Interstate 40 east, then stop on Morgan Street in Raleigh and file a notice of appeal with the North Carolina Court of Appeals. That's sage advice for all lawyers!
Let me be clear: I am not advocating the curtailment of free speech rights. Judges are not, and should not be, immune from criticism where appropriate or disagreement where civil. Freedom of speech is an equally fundamental hallmark of our constitutional protections. We are, and should remain, free to disagree with judicial decisions. But such disagreement must not rise to a vindictive or unlawful level. Yet many often cross that line to target judges, not because of some illegal or ethical behavior by a judge, but merely because they would have preferred a different outcome. Threats, ridicule, or attempts to intimidate judicial officials based on improper motivations undermine our legal system. They diminish trust and confidence in the rule of law.
Nor does judicial independence mean a lack of accountability. All judges, elected or appointed, should be answerable for their actions. Fortunately, our legal system has several built-in mechanisms for holding judges responsible for both their legal decisions and extra-judicial activities. The appellate process, the judicial selection process, the electoral process, the disciplinary process, the peer review and evaluation process, and a legislature's authority to change laws are but a few examples of procedures designed to hold judges accountable.
We spent years in law school and endured the rigors of a bar exam to become a part of the greatest judicial system in the world. It is incumbent upon us to stand up to inspire confidence in that system, rather than sit idly in the face of misguided attacks against it or the court personnel essential to its proper operation. As my partner and former ABA President Robert J. Grey, Jr., once observed, an attack on our judges is equivalent to an attack on our democracy. We should not ignore or excuse unjust criticism of our judges or the judicial system. Rather, we should respond to correct misinformation and to speak out in support of the judiciary and the rule of law. To adopt any other approach is perhaps to concede, at least tacitly, the gradual disintegration of our judiciary's independence.
The MCB remains committed to safeguarding the independence and integrity of the judiciary. I urge you to do your part as well.