Sam J. Ervin, IV | Candidate Questionnaires | Indy Week
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Sam J. Ervin, IV 

Candidate for N.C. Court of Appeals

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Name as it appears on the ballot: Sam J. Ervin, IV
Date of Birth: November 18, 1955
Campaign Web Site: under development
Occupation and Employer: Commissioner, North Carolina Utilities Commission
Years lived in North Carolina: I have been a resident of North Carolina all my life, and have actually resided in the State for the vast majority of my life.



1. If you have made pledges, taken positions or otherwise commented on how you might rule in office, what are your top three priorities or issues of concern for the coming term?

I have not made any pledges, taken positions, or otherwise commented on how I might rule when in office. I believe that the fundamental role of a Judge of the Court of Appeals is to carefully study the record, thoroughly research the applicable law, and reach a fair and dispassionate decision that properly applies the applicable law to the facts. I am concerned that discussing how I might rule in the event that I was to be elected to the Court of Appeals would undermine public confidence in my ability to fairly decide specific cases, so I have consistently declined to take such positions throughout my campaign.

2. What in your record as a public official or other experience demonstrates your ability to be effective on the bench? This might include career or community service; be specific about its relevance to this office.

I have served as a member of the Utilities Commission for the last 8 ½ years. During that time, I have had the responsibility for participating in and deciding many important cases, including the recent case in which the Utilities Commission implemented the new energy legislation enacted by the General Assembly last year. In addition, I have served as Chairman of Committee on Electricity and as a member of the Task Force on Climate Policy of the National Association of Regulatory Utility Commissioners (NARUC), where I helped develop NARUC’s policies addressing climate change issues. Throughout my service on the Utilities Commission, I believe that I have developed a reputation as knowledgeable, thorough, and fair. I believe that my service as a member of the Utilities Commission demonstrates that I can serve effectively as a Judge of the Court of Appeals.

3. How do you define yourself politically and how do your political and legal philosophies show in your past achievements and present campaign platform?

As a candidate for the Court of Appeals, I have not attempted to present myself as the representative of a particular political philosophy or to describe how particular cases should or should not be decided. The role of a Judge of the Court of Appeals is to decide particular cases in accordance with the statutes enacted by the General Assembly and the common law principles developed by the federal and state courts. In other words, the policy positions that Judges of the Court of Appeals should strive to implement are those adopted by the General Assembly or found to be appropriate in prior appellate court decisions. For that reason, I do not believe that a candidate for election to the Court of Appeals should present himself or herself as the representative of a particular political philosophy and have refrained from taking positions on public policy issues in order to avoid impairing my ability to fairly and even-handedly decide the cases that come before the Court of Appeals in the event that I am elected to that body.

4. The Independent’s mission is to help build a just community in the Triangle. How would your election to office help further that goal?

A just community is, at least in my opinion, one that is founded on the rule of law. As a result, I believe that basic policy decisions should be made through the democratic process, as limited by the provisions of the federal and state constitutions, and that the courts should apply and enforce the law as developed through the democratic process. A Judge of the Court of Appeals should not act for the purpose of furthering a particular political agenda. Instead, Judges of the Court of Appeals are responsible for applying and enforcing the law as enacted by the General Assembly or developed through the common law process to the facts of particular cases. As a result, the principal responsibility of a Judge of the Court of Appeals is to attempt, to the best of his or her ability, to ascertain the intent of the General Assembly in enacting a particular statutory provision or of the courts in developing a particular common law principle and to apply the statute or common law principle in question to the facts of a particular case regardless of his or her level of agreement with the underlying statute or common law principle.

5. Identify a principled stand you might be willing to take if elected that you suspect might cost you some popularity with voters.

As I have explained in greater detail elsewhere, I have decided not to discuss positions that I may or may not take in deciding cases as a Judge of the Court of Appeals in order to avoid impairing my ability to fairly and impartially decide future cases. However, during my service as a member of the Utilities Commission, I have not hesitated to dissent from the majority’s decision in the event that I felt that the majority had decided a particular legal, factual, or policy decision incorrectly. On the other hand, I have also never hesitated to vote with the majority when I believed that it had reached the correct result. I believe that my service as a member of the Utilities Commission demonstrates that I am able to make independent decisions and to base the decisions that I do make solely upon my understanding of the applicable law as applied to the evidentiary record.

6. What is the role of the U.S. Supreme Court in setting precedent for North Carolina’s appellate courts?

The decisions of the United States Supreme Court with respect to issues of federal law are binding on the North Carolina courts, including the Court of Appeals. In the event that I am elected to the Court of Appeals, I will make every effort to fairly and conscientiously apply the decisions of the United States Supreme Court in deciding issues of federal law that arise in the cases that I am called upon to decide. The decisions of the United States Supreme Court are not, however, binding upon the North Carolina courts in cases in which they are called upon to decide issues arising under the state constitution. In such cases, I believe that it is the duty of a Judge of the Court of Appeals to carefully consider all relevant materials, including any decisions of the United States Supreme Court construing similar provisions of the United States Constitution, and to appropriately construe the relevant provision of the state constitution in accordance with the interpretive principles prescribed by the Supreme Court of North Carolina.

7. Do you favor or oppose public financing of judicial races? Please explain. What changes would you make to the current system?

I strongly support and have given notice of my intent to participate in the existing system of public financing of judicial races, since it tends to improve public confidence in the independence of the judiciary by minimizing the perception that judges are improperly beholden to campaign contributors. As a result of the fact that the current public financing system is still relatively new, I would prefer to leave the existing system in place for a while longer so that the General Assembly can have an adequate opportunity to assess its strengths and weaknesses before making further refinements.

8. How do you view Canon 7 of the N.C. Judicial Code of Conduct regarding the personal solicitation of campaign contributions, taking positions on issues and endorsing candidates for other offices? Please explain.

I view the provisions of Canon 7 of the Code of Judicial Conduct as setting out the minimum standards of conduct for members of the judiciary. In view of the fact that trial and appellate judges in North Carolina hold elective positions, they inevitably are involved to some extent in the political process and have to engage in political activities, such as raising campaign funds. In addition, judges have certain free speech rights under the United States Constitution. However, I believe that it is very important for judges to refrain from engaging in conduct which creates the appearance that particular decisions are made for political reasons or which otherwise casts doubt on their impartiality. The Court of Appeals does not make basic public policy decisions and is bound by the decisions of the higher federal and state courts with respect to constitutional and common law issues. In other words, the job of a member of the Court of Appeals is to apply the law to the facts of specific cases rather than to make basic policy decisions. Thus, as is reflected elsewhere in my responses to this questionnaire, I have decided not to take positions on public policy questions or on the correctness of prior decisions of the state and federal appellate courts in order to avoid creating a situation where my impartiality can reasonably be questioned.

9. Have you ever recused yourself from a case or, as a lawyer, faced a conflict of interest? Please explain.

I have, as required by law, recused myself from participating in certain cases before the North Carolina Utilities Commission and declined to undertake the representation of clients during my career as a practicing attorney in order to address conflict of interest issues. For example, prior to taking office as a member of the Utilities Commission, I regularly represented a particular client in Utilities Commission proceedings. In order to address issues arising from this situation, I declined to participate in any proceeding involving that former client for the required period of time after taking office.

10. Sometimes state laws conflict with personal beliefs. Please list the two laws with which you are the most uncomfortable personally. How do you deal with those conflicts?

I have certainly faced situations as a member of the Utilities Commission in which I have been required to apply and enforce statutory provisions with which I did not personally agree, although I do not believe that I should identify those statutory provisions in order to avoid compromising my ability to fairly and even-handedly decide issues that come before the Court of Appeals or the Utilities Commission for decision. In such instances, I have done the best I could to apply those provisions in accordance with the intent of Congress or the General Assembly regardless of my own personal opinion about the merits of the provisions in question. After all, as I have said several times before, the proper role of a Judge of the Court of Appeals is to attempt to apply the law as it has been written regardless of the judge’s personal opinions about the appropriateness of a particular policy provision.

11. The passage of mandatory minimum sentencing laws has removed some of the discretion judges, juries and prosecutors used to exercise in the sentencing phase of criminal trials. Should judges have more or less flexibility in the sentencing phase that currently allowed under North Carolina law? Please explain.

Judges of the North Carolina Court of Appeals do not sentence convicted criminal defendants. Instead, that function is performed in the District and Superior Courts. Subject to compliance with the dictates of the federal and state constitutions, the General Assembly has the authority to prescribe the manner in which convicted criminal defendants are sentenced and the substantive standards to be utilized in the sentencing process. As a result of the fact that the degree of discretion that should be afforded to trial judges in sentencing convicted criminal defendants is a matter for determination by the General Assembly rather than the Court of Appeals, I do not believe that it is appropriate for me to comment on the manner in which such basic policy decisions have been and should be made by the General Assembly. The role of a Judge of the Court of Appeals in reviewing a sentencing issue is to determine whether a particular defendant was sentenced in accordance with the procedural rules and substantive standards prescribed by the General Assembly and the federal and state constitutions. I believe that I can fairly, dispassionately, and conscientiously apply the law enacted by the General Assembly, as affected by relevant federal and state constitutional provisions, with respect to sentencing issues in the event that I am elected to membership on the Court of Appeals.

12. Do you favor or oppose applying a plain error review to all alleged errors in capital cases? Do you favor or oppose mandating appellate review in post-conviction capital cases to help avoid arbitrariness in review of postconviction capital cases by superior court judges? Please explain.

The North Carolina Court of Appeals has no role in the review of capital cases. Instead, direct appeals and requests for appellate review of trial court rulings on motions for postconviction relief in capital cases are handled by the Supreme Court of North Carolina. The Supreme Court of North Carolina conducts plain error review of legal claims that were not properly preserved in the trial court on direct appeal. The General Assembly has prescribed the process by which rulings by the Superior Court on capital postconviction are reviewed by the Supreme Court. As a result of the fact that the Court of Appeals has no role in the review of the capital cases and the fact that it lacks the authority to change existing law as determined by the General Assembly and the Supreme Court of North Carolina, I do not believe that it is appropriate for me to comment on the two issues addressed in this question.

  • Candidate for N.C. Court of Appeals

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