Frye and Lake are both, in the literal sense of the term, courtly men. Both are judicial conservatives, more or less, and the impact on the court's decision-making of electing one rather than the other to the chief justice's post is one of degree, not disjunction. On the horizon are two landmark cases, one challenging the state's public-school system as fundamentally unfair to low-income communities, the second calling state elections constitutionally blighted by big-money contributors. If Frye and Lake would lead the court to different decisions on these questions, or any others, they haven't let the voters in on how.
Still, the symbolic difference between the two candidates could not be more profound, nor the political consequences of the outcome more striking. Frye, a Democrat, was the first African American elected to the state legislature in the 20th century when he won a House seat in 1968. Fifteen years later, he was named the first black member of the N.C. Supreme Court--ever. When he held the seat in the '84 elections, he was the first black to win a statewide office. Now, he is the first black chief justice, and the only African American to head a state court system in the South. Lake, also a former legislator, ran for governor in 1980 against Hunt and lost. His father--a segregationist--lost the 1964 Democratic primary for governor to Dan Moore.
Frye came to his current post by appointment, though, not election. He was picked by Gov. Jim Hunt a year ago when former Chief Justice Burley Mitchell resigned. So a Frye victory this year would be another racial breakthrough for North Carolina, the first time a black candidate was elected to head a branch of government, and just the second African American--along with State Auditor Ralph Campbell--elected to lead any state agency. If Frye loses, it will be, if not a racial setback--after all, how many voters even know that Frye is black, or that Republican Beverly Lake is not a woman?--then at least a big opportunity lost to welcome African-American leadership at the highest levels.
"It would be a huge opportunity lost," state Rep. Mickey Michaux of Durham, the General Assembly's senior African-American member, says. "And it ought to be a rallying cry for black voters throughout this state to help elect the leader of the court system, which they are very familiar with."
Frye and Lake head the Democratic and Republican lists of candidates for seven seats on the state's appellate courts--there's a second Supreme Court seat on the ballot, plus five seats on the 12-member state Court of Appeals, the intermediate bench above the trial courts and below the Supreme Court. How the top two candidates run against one another could shape the outcome in the other six contests.
Listening to Frye and Lake campaign, though, gives you little sense of how much is at stake between them. Introduced by the moderator at a law school forum in Chapel Hill recently as "two of the most important and dedicated public servants in North Carolina," the two men proceeded for the next 90 minutes to agree on almost every question while agreeably avoiding any controversy. "It is troubling, very troubling," Frye said, in a typical exchange, that the public lacks confidence in the court system's ability to ensure that no innocent person is never executed in North Carolina. Frye said he trusts the system. "Chief Justice Frye has just given you a very excellent answer," Lake responded when it was his turn. "It's troubling, troubling. ..."
By tradition, all judicial elections in North Carolina are civil and low-key. Candidates do not criticize one another, and only in the mildest terms do they suggest that their own credentials and experience might be preferable to an opponent's. A code of judicial conduct precludes their saying how they'd decide interesting cases or discussing the underlying issues. And while the candidates themselves warn that it's only a matter of time before someone breaks ranks and runs attack ads on hot-button issues--as happens routinely in Texas and occasionally in other states--it's not happening this year. Like Frye and Lake, the candidates in the other six appellate-court races could not be more congenial if they were competing to be Miss America.
The result? The voters are asleep. Judicial elections? What judicial elections?
Ergo, there's going to be a lot of party-line voting, since most people won't know one candidate from another, except that one's a Republican and the other a Democrat. (There are no third-party candidates this year.) According to John Davis, executive director of NCFREE, a business-funded political research group that polls campaigns, even the usual "gender gap"--white Democratic men voting Republican, and white Republican women voting Democratic--virtually disappears in judicial elections. On balance, that hurts the Democrats, he says.
For example, while Democrats swept every statewide race for executive offices in the '96 elections, Burley Mitchell was re-elected chief justice with only 51 percent of the vote against an unknown opponent. In '98, Democrats won both houses of the legislature--and Republicans won both Supreme Court races.
This year, an NCFREE poll in September showed Frye slightly behind Lake, and Michaux says he's seen a new poll that has Frye behind by 5 percentage points. Michaux called on Gov. Hunt and the Democratic party to get behind Frye's candidacy, but at the same time noted that if they do, and they raise the profile of the contest so that voters know it's a black candidate against a white one, "there's a history of racial overtones that will have to be overcome too." To wit: In the '96 elections, the only contest closer than Mitchell's was Ralph Campbell's victory over a white opponent--who was 24 years old.
North Carolina's appellate courts have always been conservative. Katherine White, a lawyer who studied the history when the state Supreme Court celebrated its 175th anniversary in 1994, concluded that it "reflects the state's power structure." Only three women have served. Frye was the only black member until two years ago, when Hunt named Court of Appeals Judge Jim Wynn to a vacancy; three months later, Wynn stood for election and lost, after which Hunt put him back on the appeals court.
The highest courts in other states have sometimes declared "rights" for their citizens based on their state constitutions. A number of state courts have ordered their legislatures to increase, or equalize, public school funding, for example. Some have found that their state constitutions assure equal-protection rights for gays, or require that communities allow low-income housing. In North Carolina, though, the courts "have mirrored the state's evolving political and social development, not making wholesale legal changes as other states' courts have, and taking few steps that alter the way business is done," White found.
The N.C. Supreme Court reinforced that reputation two years ago in the Pulliam case, straining hard to read the child-custody statute so as to strip a gay father of his parental rights. Frye and Lake were in the 6-1 majority in that case.
The same year, the court got everyone's attention when it ruled in the Bailey case that the state had unconstitutionally taxed the pensions of state and local government employees. How could a tax enacted by the legislature violate the state constitution? It breached a "contract" the state had made, the court said. Again, Frye and Lake agreed. The decision cost the taxpayers $800 million directly, and another $400 million indirectly when its logic was applied to the long-standing controversy over intangibles taxes.
The court's conservative bent has also been on view in death-penalty cases. According to retired Associate Justice Harry Martin, the court spends roughly half its time hearing appeals in murder trials where the jury has imposed a death sentence--such appeals come directly to the Supreme Court, skipping the Court of Appeals. In the 1980s, the Supreme Court reversed seven death verdicts as excessive when compared to the sentences in other murder cases. Since 1988, however, it has stopped comparing verdicts except in a general way. The result: Not one death sentence has been reversed since then on so-called proportionality grounds. (See "Sudden Death," page 19.)
Frye and Lake usually agree in these cases, but not always. Lake himself said, in an interview with The Charlotte Observer, that he's more conservative, and Frye "perhaps is a little more inclined to go with the defense than I am."
NCFREE looked at the two justices' decisions in business cases and found Frye almost exactly in the middle, coming down on the side of business about half the time, and Lake a little more to the right, with a 62 percent pro-business rating.
The two did differ in the Stone case over the question of whether the survivors of the 25 workers killed in a fire at the Hamlet chicken-processing plan could sue the state Department of Labor for failing to do its job. Lake was part of the 5-2 court majority that said the state could not be sued "for failure to prevent every employer's negligence." Frye dissented, saying the state could be sued if it was negligent.
It's cases like that one which cause Deborah Ross, executive director of the N.C. Civil Liberties Union, to object when newspaper reporters write--as some have--that Frye and Lake are "identical" as judges. "Nothing could be further from the truth in terms of their personal lives," Ross says. "[Frye] grew up in a segregated society. He was turned away when he first tried to register to vote in North Carolina. So he understands firsthand what discrimination is.
"One thing that we want from our justices," she says, "in addition to fairness and integrity, is an ability to understand the people who are in front of them. You don't get that just from reading books."
Ross says Frye and Lake differ sometimes in criminal appeals, with Lake "more willing to overlook law-enforcement errors." She thinks their most significant differences, though, may be over church-state cases, with Lake on the side of the churches and Frye for keeping government and religion separate. Ross cites two examples: In one case, Lake voted to uphold a law giving a tax break to retirement homes run by religious organizations, but not secular ones, with Frye in the majority striking it down; in the second, Frye was also with the majority that found the Campbell University police enforcing an unconstitutional mix of state law and Baptist rules, with Lake voting to let the campus police alone.
The two landmark cases looming ahead are Leandro, the school funding case, and Royal, on whether state elections are fundamentally unfair because of big-money contributors. Both turn on provisions of the state constitution--and both involve issues related to low-income people.
In Leandro, the Supreme Court staked out a middle ground in letting the case go ahead two years ago. On the one hand, it overturned a '70s case that found the state's only obligation to students was to admit them to a public school; on the other, it ruled that the constitution's guarantee of a "system of sound basic education" doesn't require the state to make up the difference between what richer and poorer counties can afford to pay, only assure that every student gets a good enough education to function in society. "The courts of the state must grant every reasonable deference to the legislative and executive branches" to decide how to fund the schools, the court said. Frye and Lake joined in that opinion.
In Royal, former N.C. Chief Justice Jim Exum is part of the legal team arguing that ordinary voters are disenfranchised by elections in which candidates cannot run effectively unless they have rich friends or big-business support. (See "Sharing the Wealth," page 16.) The case will be heard at the trial court level starting Monday.
The most interesting question in this election is whether Lake actually wants to beat Frye. He says he does, and when asked why, answers that he'd be a better leader of the state courts than Frye. But Lake also says that the only reason he ran for chief justice was to assure that, if a Republican was elected, it would be someone qualified to do the job.
Lake himself won a seat on the court in 1994, a big year for Republicans. He was persuaded that 2000 might be another Republican year, and that it would be "a fiasco" if an unqualified candidate won the GOP nomination and then the election against Frye--and the eight-year term that goes with it.
If Lake loses, he'll remain on the court at least through the end of his term in 2002, and Frye would be able to serve for four more years before reaching the mandatory retirement age of 72. "That would be great," Lake says.
Frye would be knocked off the court by a loss, and while Hunt could then name him to Lake's vacancy as associate justice, Frye says he'd decline that appointment.
Both Frye and Lake, and every other appellate judge in the state, think North Carolina should move from its current system of electing judges by party to the so-called "Missouri Plan," under which the governor appoints judges from a list of qualified candidates developed by the bar, and the appointees serve for a term--say, four years--before a "retention election." In such elections, the judges are unopposed. The only decision for the voters is whether to keep them on the bench or not.
As Lake says, North Carolina's system is almost Missouri-style now. The tradition has been for appellate judges to resign in advance of their term expiring so that the governor can appoint their successor, as Burley Mitchell did. The appointee then stands in a kind of retention election, but against a partisan opponent.
That's what Henry Frye is doing this year. And the question is, will North Carolina retain him?