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The invitation to attend a recent service at Durham's Liberty Baptist Church noted nothing special about the program beyond the plan to honor a group of judicial leaders for their work.

Breaking the code 

N.C. judges can now make endorsements and ask lawyers for campaign contributions. Is that fair and impartial?

The invitation to attend a recent service at Durham's Liberty Baptist Church noted nothing special about the program beyond the plan to honor a group of judicial leaders for their work. Seated in the pews was a collection of jurists and court personnel, including state Supreme Court Chief Justice Sarah Parker; each in turn was acknowledged and given a plaque. When it came time for the sermon, however, eyebrows raised when Parker's opponent in the upcoming election for the top spot on the state's highest court, Superior Court Judge Rusty Duke, took the pulpit.

Duke first noted his credentials as a God-fearing conservative Republican, then delivered what was essentially a stump speech, holding forth on the sanctity of life, the right to own guns and family values. "He was campaigning," says one judge who witnessed the scene. "To give the pulpit to a judge actively running for Chief Justice kind of crossed the line."

Just which if any lines might have been crossed is not at all clear these days, though Duke was operating within the bounds of the State Code of Judicial Conduct, which governs judicial ethics. The code used to prohibit judicial candidates from staking out positions on issues or otherwise conducting themselves during campaigns in a manner that would erode public confidence in the integrity and impartiality of the judiciary. That last proscription is still there, but the state Supreme Court overhauled the code in 2003, and the new version allows a host of activities that had been banned in the past.

The reason for the sweeping changes depends on which state Supreme Court Justice you ask. All agree that the primary catalyst was a U.S. Supreme Court decision in a Minnesota case that struck down restrictions on what judges could say during campaigns as a violation of First Amendment free-speech protections. Justice Mark Martin said at the time that the more dramatic changes were partly preemptive, anticipating further federal court "disassembly" of state code provisions.

Former Justice Bob Orr says that inconsistent enforcement of the old code by the Judicial Standards Commission was a major factor, a sentiment echoed by other justices. "There was no body of consistent rules and how they were applied," Orr says. "I've always said I'll play by the rules as long as I know what the rules are."

Regardless, North Carolina went well beyond what the U.S. Supreme Court mandated in its opinion, and no other states have seen fit to follow North Carolina's lead. The American Bar Association Model Code of Judicial Conduct, which most states use as the foundation for their codes, was tweaked in response to the Minnesota decision but still bans many of the practices permitted here.

In addition to allowing judges to articulate positions on issues and promise how they would rule if those issues came before the court, the changes permit judicial candidates to endorse candidates in any other election and directly solicit campaign contributions, even from attorneys or others who appear before them. The revised code is considered the most permissive in the nation. While many judges still voluntarily adhere to the old code, others are now taking full advantage of the relaxed rules and casting the question of impartiality and integrity in a rather unflattering light.

Durham District Court Judge Marcia Morey pushed the boundaries of propriety if not the Code of Conduct when she endorsed acting Durham District Attorney Mike Nifong in an April letter to The Herald-Sun prior to the primary election. Nifong, she wrote, "does not choose defendants to prosecute or victims to protect. He has always applied facts of a case to existing laws and does his job accordingly." Given Nifong's much-criticized handling of the Duke lacrosse case, such statements hardly inspire confidence in Morey's impartiality.

And while Nifong rarely appears in Morey's court, she extended her praise to those who do—the letter went on to extol the virtues of his "remarkable, competent staff of 40 lawyers and professionals who work tirelessly in our traffic, district and superior courtrooms."

No one has suggested that Morey, highly regarded by lawyers and prosecutors alike as even-handed and fair, has in fact compromised her impartiality with her endorsement. But most citizens are unaware of the court's daily dealings, and the mere appearance of favoritism should be anathema to anyone who cares about public perception of the court system.

Ironically, Morey publicly criticized the code revisions when they were announced, citing threats to the integrity of the judiciary. She says she "reluctantly" made the endorsement, but felt strongly enough about the race to make it. "I was very conflicted whether to speak out or not," she says. "I wish they would tell us we can't do it."

Morey is not alone in her wish. After the revisions to the code were announced by then-Chief Justice I. Beverly Lake, howls of protest erupted from the lower courts. The North Carolina Conference of District Court Judges asked that the revisions be rescinded, declaring in a resolution that the new code "severely compromises the appearance of judicial impartiality and fosters the public perception that politics play an essential role in matters of judicial conduct." The executive committee of the Conference of Superior Court Judges called for a review of the changes, which they stated in a resolution "appear to have little, if any, support among the bench, the bar, or the public at large." Many individual judges, including former N.C. Supreme Court Chief Justice James Exum, took potshots at specific provisions in the new code.

In response, Lake convened a 36-member advisory committee of judges, lawyers and others to study the implications of the altered code. In a series of meetings in 2004, the committee heard from experts on judicial conduct, the First Amendment and other relevant issues. The committee also looked at specific scenarios as a way to determine what was now permissible and what was not.

But the experts presented conflicting opinions, and committee members offered dramatically diverging assessments of the scenarios. "The results revealed that the answers weren't obvious," says Supreme Court Justice Bob Edmunds, who co-chaired the committee with Orr.

Such confusion might have been reflected in conclusions that the Supreme Court could have addressed—after all, the point of an advisory committee is usually to advise. Lake never committed to any action, but did say the court would consider the group's evaluation and cited his own second thoughts about two of the new provisions. But the committee never issued recommendations or even a summary of the proceedings. "There hasn't been a report," Edmunds says, though the results are still at hand, mostly in a box of uncollated paper in his office. "If such a thing had happened, that probably would have been good."

Some members of the committee believe the group was formed more as a political response to criticism than to help sort out the implications of the new code. "It was very clear from the beginning that there would be no changes made [by the Supreme Court]," says Mecklenburg County District Court Judge Jane Harper, a committee member. "I don't think there was ever intended to be a real product. 'Window dressing' was the term that occurred to me."

Edmunds says the state's high court is in a wait-and-see mode regarding the current Code of Conduct. The level of judicial and public interest in the issue is evolving, he says, and a new crop of elected judges may ultimately be more comfortable with the revised rules. The court is also monitoring how candidates use the code, and how the Judicial Standards Commission responds. Thus far, Edmunds says, "There haven't been drastic changes in the way campaigns are run."

That appraisal depends on how one defines "drastic." Forsyth County District Court Judge William Graham caused a ruckus when, in the middle of a 2004 domestic violence case, he called a recess and hit up the assistant district attorney trying the case for an endorsement. The Judicial Standards Commission filed a charge against Graham, but eventually ruled that "inconsistencies" in the code appear simultaneously to allow and prohibit his ill-timed action, and the commission declined to sanction Graham. Indeed, the code allows judges to ask for contributions or endorsements without restricting where such solicitations can be made. As for the code's mandate to uphold the integrity and independence of the judiciary, that may have to wait till later.

Other judges have engaged in campaign activities that at least some observers view as a dramatic change from the past. In addition to Morey, several District Court judges in other counties have made endorsements in contested elections that veer close to their jurisdiction, including sheriff's races. One Durham District Court judge recently called court personnel together on a day court was in session and asked for their support a la Graham. And while some judges find the prospect of direct fund-raising to be an unacceptable ethical breach that taints the process and public perception of the courts, others have no such compunction and work the phones during election season, calling lawyers who work in their courtrooms to contribute to the cause.

The relationship between campaign contributions and decisions is more than theoretical—in an excellent 2005 article, the Charlotte Observer chronicled the apparent connection between campaign support from defense lawyers and DWI acquittals by District Court judges in Carteret, Craven and Pamlico counties.

Besides, no matter how many judges are taking advantage of the new code, the bar has been set, and nothing stops others from creating a snowball that could soon turn into an avalanche.

Perception of the integrity and impartiality of judges is not a trifling matter, and waiting to address concerns that have emerged since the code was changed may have irreparable consequences. The best way to deal with the problem, as Lake, Orr and others have repeatedly noted, is to change the system from elective to appointive, and there are plenty of working models around the country to emulate. As N.C. state Sen. William Robbins so presciently noted in 1869, judges in an elective system will be compelled to become "politicians and therefore partisans, and expose them to evil influences without number. Some will stand firm and remain pure, some will become corrupt, but all will be suspected."

But the legislature has no interest in going there, and public opinion is divided on the matter. Short of that, however, the code needs to be revisited after the election, and without undue delay. The prospect of judges being held in the same low regard as politicians should be considered a must to avoid—by everyone.

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