In Part I and Part II of this three-part series revisiting the landmark calendaring case, Simeon v. Hardin, 339 N.C. 358 (1994), I explored the key issues of pretrial delay and fair notice and order in the trial calendar. In this final installment, I will discuss the third major concern the plaintiffs raised: judge shopping.
The plaintiffs asserted that the way in which the Durham District Attorney ordered cases on the trial calendar, called cases, and declined to call cases allowed the DA to all but select the judge that presided over a given case. The plaintiffs cited to a study conducted by the National Center of State Courts in which prosecutors were interviewed and admitted to using calendaring authority to select judges favorable to the state. See Plaintiff-Appellants’ New Brief in Simeon, No. 267PA93.
The chief case the plaintiffs relied on in arguing that the DA’s use of its calendaring power to select the judge constituted a due process violation was State v. Simpson, 551 So.2d 1303 (1989), a decision out of the Supreme Court of Louisiana.
The Simpson opinion is brief and direct- it fits on one page. The Supreme Court of Louisiana did not devote much analysis to the question, readily concluding that fundamental fairness requires that neither party have the power to determine the presiding judge. The court held that some procedure must be instituted whereby judges are assigned to criminal cases “on a random or rotating basis” to avoid vesting the district attorney with the power to choose the judge. The court noted that the “size and diversity” of the district at issue in the case may create scheduling problems, but these challenges could not “justify a system which is facially unfair.” Id. at 1304. (In a footnote, the court noted that 18 districts in Louisiana already had rules requiring “random allotment”. Id. at n. 2.)
However, in weighing the plaintiff’s claims in Simeon, the North Carolina Supreme Court did not reach the issue of judge shopping squarely, noting the parties in Simpson stipulated that the prosecutor was selecting judges in criminal cases as a matter of course, whereas the North Carolina statutes in effect at the time did not grant this power on their face. The Simeon court appeared receptive to the argument that systematic judge shopping was improper, but found that the record below was not sufficiently developed to determine whether the district attorney was selecting judges in practice. Simeon,339 N.C. at 376-77. The court thus ruled that summary judgment against the plaintiffs was appropriate as to that specific issue (the plaintiffs defeated the summary judgment motion on other issues, as discussed in prior posts).
It is rare that direct evidence establishes that judge shopping has occurred; more commonly, the circumstances indicate improper purpose. The concern in Simeon that persists today is that if the State is allowed to place certain cases in front of certain judges during a session where multiple judges are presiding, this creates an unfair opportunity to select specific arbiters for the various legal issues and matters scheduled to be heard. Other practices such as unilaterally resetting matters, placing cases in indefinite limbo with no trial date, and placing cases on a “parking lot” date (a holding date not intended to be an actual trial date), similarly give rise to concerns that the state has an unfair advantage in influencing which judge will preside over a given case. Notably, as discussed in this blog on unilateral reset, the above practices do not appear to comport with G.S. 7A-49.4.
Of course, the defense also has some influence over which judge presides over a given case, in that both parties are able to request continuances, oppose continuances, and seek particular trial dates in an effort to jockey over which judge is assigned. It cannot be said that the defense has no influence over the determination of the judge, and it is similarly problematic for the defense to select a judge. The concern on the defense side also has an equitable component in that clients with means may be able to afford savvier and more experienced lawyers who “possess unique insights into particular judges.” See Commonwealth v. Gebo, 489 Mass. 757, 769 (2022).
The principle espoused in Simpson is that neither side should be able to choose the judge, but rather the judge selection should be made by “random or rotating” process or by some other procedure “which does not vest the district attorney with power to choose the judge to whom a particular case is assigned.” See Simpson, 551 So.2d at 1304.
North Carolina’s system of rotation whereby superior court judges generally sit for six months at a time in a given district may help buffer against judge shopping or may exacerbate it depending on the circumstances. See N.C. Const. Art. IV, Sec. 11 (“the principle of rotating Superior Court Judges among the various districts of a division is a salutary one and shall be observed”). Where multiple superior court judges sit during the same session in a larger judicial district, some process must be employed to determine which judges preside over which cases. My anecdotal sense is that this process varies from district to district, with judges, prosecutors, judicial assistants, and trial court administrators having varying influence. Due process concerns remain where the state has greater influence than the defense.
This blog from the Yale Journal of Regulation gathers cases from across the country in which courts have weighed in on judge shopping. The common theme is disapproval of the practice:
Commonwealth v. Gebo, 489 Mass. 757, 768 (2022) (where the defendant requested a waiver of his right to a jury on the day of trial after learning the identity of the trial judge, the request gave “the appearance or the inkling of judge shopping;” the appellate court upheld the judge’s denial of the waiver request and declared that the practice of judge shopping is “inherently unfair to other litigants, undermines public confidence in the judiciary, and properly has earned the condemnation of courts across the country”);
Grievance Adm’r v. Fried, 456 Mich. 234, 244 (1997) (on review of a decision by the Attorney Discipline Board, the Supreme Court of Michigan held that an alleged scheme in which lawyers with family relations to tougher judges were retained with the express aim of obtaining recusal of those judges was “conduct that a majority of lawyers would find offensive on its face;” conduct was valid ground for ethical discipline);
United States v. August, 745 F.2d 400, 402 (6th Cir. 1984) (three judges were assigned to bankruptcy cases through a randomized process involving shuffled index cards; lawyer and courtroom clerk in a romantic relationship were convicted of federal crimes for conspiring to tamper with the randomized process to avoid a particular judge);
Tyson v. Trigg, 50 F.3d 436, 438-42 (7th Cir. 1995) ( “if Congress were to pass a law which provided that the U.S. Attorney in each district shall designate the federal district judge to preside in criminal cases, or even that the Environmental Protection Agency shall designate the federal district judge to preside in civil cases under the Clean Air Act, the law would raise profound issues under the due process clause”).
Notably, in federal courts, judges are generally selected by random drawing, though considerations of expertise and geography also enter the equation. The court is responsible for assigning judges to particular cases, rather than allowing either party to engage in choice of judge. In March 2024, the Judicial Conference of the United States acted to strengthen its policy regarding random case assignment. Chief Justice John Roberts raised related concerns in his 2021 Year-End Report on the Federal Judiciary.
Such a randomized selection process does not exist for criminal matters in North Carolina state courts to my knowledge. Would it be possible, in state court, in circumstances where either the defense or the prosecution has a concern about fairness, for a party to file a motion requesting that a judge be assigned randomly pursuant to Simpson? Alternatively, a party could request that the court select the trial judge without influence by either party. Although such requests might require some creativity in devising an appropriate process, the logistics do not seem prohibitive given that randomized methods are regularly used throughout the country. Of course, a systemic fix may be preferable to promote uniformity and universal fairness.
Conclusion
The Simeon v. Hardin case remains compelling and relevant today in the way it implicates so many legal issues within the larger challenge to the status quo calendaring culture of the time. Though it led to the enactment of a new statute, G.S. 7A-49.4, which addressed some of the concerns raised in the litigation, my sense is that the statute is not consistently followed.
When I taught this subject at a recent Public Defender Conference, I took an informal poll as to which of the Simeon issues are most concerning for defenders today. It was apparent that significant concerns remain, but the issues vary quite a bit from county to county. In some parts of the State, defenders observe that very little is placed on the trial calendar while in-custody defendants are eager to have their day in court. Elsewhere, an overwhelming number of matters are placed on the calendar, leading to concerns about a lack of opportunity to prepare and a lack of predictability. Defenders also noted general problems with pretrial delay, pretrial incarceration, and judge shopping.
Though this post concludes my three-part series on Simeon,I plan to address other calendaring topics on the blog in coming months, such as motions for speedy trial or discharge on a felony under G.S. 15-10, and the requirement that a case not be tried the week it is arraigned under G.S. 15A-943(b). If there are other topics you would like me to address or if you have any questions, please reach out at spiegel@sog.unc.edu.
