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That Court of Appeals Ballot

Posted on August 14, 2014 by Michael Crowell

In July John Martin, the chief judge of the Court of Appeals, announced his retirement effective August 1^st. Given the timing of his decision, state law requires an election in November to fill the seat but no primary in advance to reduce the number of candidates. It appears that everyone who has ever aspired to be an appellate judge sees this as an opportunity to catch the ring, and 19 candidates have filed. One of them will get more votes than the others, though it may not be very many, and will be elected with no run-off. Nineteen candidates, one vote, one time, most votes wins. Some people may think this is not the best way to choose a judge for an eight-year term on North Carolina’s second highest court. How did we end up with such an election?

Nonpartisan elections

Let’s start with North Carolina’s switch from partisan to nonpartisan elections. Until the late 1990s we elected all state judges in partisan elections. Just like the governor and legislators and county commissioners, judicial candidates ran on political party labels. Each party held a primary to determine its candidates and those party nominees faced off in the general election. If a vacancy opened up too late for a primary, as with Judge Martin’s seat, the executive committees of the parties would choose the candidates for the November ballot, one for each party. A nice neat ballot with no undue clutter of candidates.

Starting in 1998, though, North Carolina moved to nonpartisan election of judges. First to be converted were superior court judges in 1998, then district judges in 2002, and finally appellate judges in 2004. Democrats’ and Republicans’ views on the method of selecting judges tend to fluctuate over time, depending on how they think their party will fare. Several events in the 1980s and 90s, when Democrats still controlled the legislature, started the shift toward nonpartisan elections. Election of superior court judges had to be changed — remember when they were nominated in primaries in their districts but were then subject to a statewide general election? — because of two lawsuits. One was a Voting Rights Act lawsuit claiming that the system discriminated against African Americans, and the other a Republican lawsuit contending party discrimination. Add to the litigation the fact that Republicans started winning some statewide elections and the move to nonpartisan elections began.

With nonpartisan elections, of course, the political parties have no role in nominating candidates. In regularly scheduled judicial elections the November ballot is shortened to two candidates per office by having a nonpartisan primary in the spring. But when a vacancy occurs too late for the primary, as with the Martin seat, the election has to be open to any qualified candidate who wants to run.

Eight-year terms

A second change encouraging candidates to run for vacancies has been the reward of an eight-year term. Until 1995 when a vacancy arose in the middle of a term there would be an election to choose someone to fill the remainder, but only the remainder, of the unexpired term. John Martin was elected to the Court of Appeals in 2008. Under the old system the winner this November would serve only until 2016, that is, just two years, at which time there would be an election for a full eight-year term.

In the early 1990s Governor Jim Martin, taking a different view of the state constitution and statutes on vacancies, issued eight-year commissions to several appellate judges, including Bob Orr, who had been elected to fill unexpired terms. The governor’s position was that constitutionally all elections had to be for eight-year terms. Superior court judge Tony Brannon disagreed and sued when the State Board of Elections did not put Orr’s Court of Appeals seat on the ballot in 1992. The Supreme Court dodged the constitutional issue in Brannon v. North Carolina State Board of Elections, 331 N.C. 335 (1992), but interpreted the statutes to mean a vacancy election was only for an unexpired term. Brannon, thus, won the right to run in 1992. He lost to Orr.

Both political parties — and particularly the appellate judges in both parties — decided the Brannon decision was bad policy, prompting the General Assembly in 1995 to declare that all appellate judicial elections are for eight-year terms, even if prompted by a vacancy. The same rule was extended to superior court vacancies in 1996 (except, for a time, vacancies in some districts that were part of the earlier voting rights litigation).

(If you are wondering, there are no elections to fill vacancies in district court judgeships, which have only four-year terms. Regardless of when the vacancy occurs during the term, the appointed replacement serves the remainder of the term.)

The 2004 election

By 2004, then, the law provided that judicial elections were nonpartisan and that elections to fill vacancies were for full eight-year terms. And under general state law, if a vacancy occurred too late for a primary there would be a single winner-take-all election, most votes wins. When Bob Orr, by this time on the Supreme Court, resigned his seat in the middle of 2004, eight candidates signed up for the November vacancy election. Paul Newby led with 583,000 votes out of almost 2.6 million cast and got a full eight-year term. He had received about 22 percent of the votes.

To some the 2004 result did not seem quite right, that someone should be elected to a full eight years on the state’s highest court with less than a quarter of the votes in a hurry-up election. Consequently the legislature was convinced in 2006 to make a drastic change in voting for such elections.

Instant run-off voting

Instant run-off voting is one of those schemes that delights political scientists but puzzles the average person in the street. As enacted in 2006, if there was a late judicial vacancy there would still be a single election in November open to all qualified candidates. When voters went to the polls, though, they would do something more than just check the name of a single candidate. A voter could place a 1, 2 or 3 next to their top three choices. If no candidate got a majority of 1 votes, the 2s and 3s would be counted in some fashion to figure out who really had the most overall support. The idea of instant run-off voting is to show who might prevail in a run-off without really having a second election. Don’t ask me to explain further.

In 2010 we got to see instant run-off voting in action. When a vacancy arose late for the Court of Appeals, 13 candidates filed. Cressie Thigpen led with 395,000 of the nearly two million votes cast, 100,000 votes ahead of second-place Doug McCullough, but Thigpen was far short of a majority. Consequently, the counting of 2s and 3s kicked in. McCullough ended up the winner, and maybe a few people understood the math.

The 2013 General Assembly

The General Assembly’s recent reworking of election laws included two significant changes in judicial elections. First, the legislature eliminated public funding of appellate judicial elections. Started at the same time as the switch to nonpartisan elections in 2004, public funding allowed appellate candidates who demonstrated a certain level of statewide support through their own fundraising to receive a set amount of public funding — generally just a couple of hundred thousand dollars — in exchange for agreeing not to accept political contributions. The intent was to reduce the influence of special interest groups in judicial elections.

Public funding proved popular with candidates but not with the Republican majority that gained control of the legislature in 2013. The idea of using public funds to pay for individual candidates’ campaigns had always been controversial, and it was repealed.

The second change that was enacted was to eliminate the use of instant run-off voting. There isn’t any clear record why it was dropped. Maybe it just seemed too odd.

The 2014 ballot

For 2014, therefore, we are back to where we were before 2006. We have a reprise of 2004 with a mighty host of candidates competing in a single plurality election for an eight-year appellate term. With 19 people in the field — including two former Court of Appeals judges, one ex-superior court judge, at least one sitting district court judge, a former State Board of Elections member, a prominent ex-legislative staffer, and lots of others — it’s unlikely anyone will come close to a majority.

Given the number of candidates, the short time for campaigning, the low attention paid to judicial races, and the drop-off in voting for judgeships, someone is likely to win with a small percentage of votes. In 2012 about 4.5 million North Carolinians voted for president, and over 4.3 million for superintendent of public instruction, but by the time voters got down the ballot to the Supreme Court only 3.5 million were still voting. The number was lower for the Court of Appeals seats. Those were simple one-on-one judicial elections, fairly easy choices. How many voters will skip the Court of Appeals vacancy when they see 19 unfamiliar names? And what percentage of the total votes will any one candidate get?

There is another possibility for the November election, maybe more worrisome. Because of the large field of candidates and the minimal attention the election will receive, it might take only a modest investment by a special interest group to sway the outcome. With no public funding, candidates must resort to traditional fund raising, and some interest groups may see an opportunity. Furthermore, with restrictions lifted on independent organizations’ spending on campaigns, and corporations allowed to contribute to those efforts, an interest group operating essentially anonymously under a vague name — say, North Carolinians For Real Justice — could put a few hundred thousand dollars into the campaign at the last minute in favor of a single candidate, tipping the race and realizing an outsized dose of influence.

North Carolina has struggled for decades to figure out the best way to elect judges. The 2014 Court of Appeals vacancy may prompt additional debate on the subject.

Category: Uncategorized | Tags: court of appeals, elections

Thought You Understood Contempt? Think Again

Posted on June 9, 2014 by Michael Crowell

The murky law of contempt — particularly the distinction between civil and criminal contempt — got even more confusing last month with the Court of Appeals’ decision in Tyll v. Berry. The court said that civil contempt may include a fine, not just imprisonment, and can require the fine to be paid to a private party, not to the state. All this is new and different from what we have been teaching about the law of contempt.

Civil vs. criminal contempt

Let’s start with a refresher on the difference between criminal and civil contempt. Criminal contempt is a sanction for one of the specified acts in G.S. 5A-11, the most common being refusal to obey a court order, disrespect to the court, and failing to follow court schedules. Criminal contempt is used when the contemptuous act has already occurred, is completed, and the court wants to punish the offender. The punishment generally is limited to a $500 fine and/or jail for up to 30 days.

Civil contempt, on the other hand, is intended not to punish the offender but to force the person to comply with a court order. The only act for which civil contempt may be applied is the ongoing violation of a court order and the only sanction, we thought, was for the person to be jailed until they complied. Every civil contempt order has to include a “purge” provision, that is, a clear statement as to what the person has to do to get out of jail. If the contempt was for failure to pay child support, for example, the purge would be to catch up on payments. If the contempt was for refusal to sign over a deed, the purge would be to sign the document.

Joey Berry’s civil contempt

Joey Berry was in contempt for violating a Chapter 50C no-contact order. The district court judge ordered that Berry be locked up for contempt until he purged the contempt by paying $2,500 to the Tylls. The order also said he would be fined an additional $2,500 for each future violation of the no-contact order, apparently for as long as the no-contact order remains in effect. Although the trial court did not specify whether it was using civil or criminal contempt, the Court of Appeals treated it as civil and concluded that the $2,500 fine was lawful.

Lawyers and trial judges often fail to articulate whether they are talking about criminal or civil contempt. One might have thought that Joey Berry was being found in criminal contempt. Civil contempt is supposed to be used to make someone comply with a court order, to do something they were already ordered to do but haven’t done yet; thus it does not really work when the order being enforced forbids the person from doing something. If someone is ordered to not contact someone else, how do you lock them up until they comply by not contacting that other person? If what the court really wants to do is punish the person for disobeying the order sometime in the past, that’s criminal contempt, not civil.

Nevertheless, the Court of Appeals concluded that the trial court was holding Berry in civil contempt. It did so because the Tylls had initiated the proceeding by filing a motion under the procedures of G.S. 5A-23, the civil contempt statutes; the judge’s findings recited the statutory conditions for civil contempt (order still enforceable, willful disobedience, etc.); the judge called the $2,500 payment a “purge”; and the transcript indicated the judge was struggling to find a way to get Berry to comply with the no-contact order.

“As for contempt”

The no-contact statute, G.S. 50C-10, says that a violation is punishable as contempt but does not say whether it’s criminal or civil. In deciding that it is civil, the Court of Appeals cited G.S. 5A-25 which says that “whenever the laws of North Carolina call for proceedings as for contempt, the proceedings are those for civil contempt. . . .” (emphasis added). It appears that the court took that statute to mean that whenever another statute fails to specify whether the contempt is civil or criminal then it is civil. The statute actually is narrower than that.

The key is the term “as for contempt.” Until contempt law was recodified as Chapter 5A in 1977, “as for contempt” was the term of art for civil contempt. In other words, before Chapter 5A was enacted, “contempt” or “for contempt” meant criminal contempt and “as for contempt” meant civil contempt. All that G.S. 5A-25 says is that if there is an old statute that still uses the term “as for contempt” it means civil contempt. But G.S. 50C-10 does not use the term “as for contempt,” it simply says that violation “is punishable as contempt of court,” so it is difficult to see how G.S. 5A-25 helps in construing its meaning.

Given the appellate court’s reading of G.S. 50C-10 and G.S. 5A-25, specifically its determination that “contempt” in G.S. 50C-10 means civil contempt, it appears that criminal contempt is no longer available to punish the violation of a no-contact order.

A fine for civil contempt

More surprisingly, once the Court of Appeals decided that Berry was being held in civil contempt it approved the imposition of the $2,500 fine as a sanction. The only sanction stated in the civil contempt statute, G.S. 5A-21(b), is that the person be “imprisoned as long as the contempt continues.” In approving the use of a fine against Berry, the Court of Appeals quoted several earlier appellate opinions — Jolly v. Wright, 300 N.C. 83 (1980); Oakley v. Oakley, 165 N.C. App. 859 (2004); Reece v. Reece, 58 N.C. App. 404 (1982); Bishop v. Bishop, 90 N.C. App. 499 (1988) — all of which refer to fines for civil contempt. In none of those cases, however, did the trial court actually impose a fine.

It looks, therefore, like Tyll v. Berry is the first instance of a North Carolina appellate court approving the actual imposition of a fine for civil contempt. We have been teaching judges that fines are not allowed, that a fine is punishment and is inconsistent with the purpose of civil contempt. We’ll now tell them they have another option.

The fine as a purge condition

The trial judge made payment of the $2,500 fine a purge condition. This does not fit with the idea that a purge condition has to be tied to the original order being enforced by contempt. That is, because the purpose of civil contempt is to force compliance with a court order, not punishment, a proper purge was thought to be something essential to the original order. For example, if a judge was jailing someone for civil contempt for not complying with an order to sign over a deed, the only appropriate purge condition would be to sign the deed, that’s the only act that would achieve compliance with the original order. Based on Tyll v. Berry it appears that a purge condition may be something independent of complying with the original order.

In allowing a purge condition that adds to the original court order the payment of a fine, the Court of Appeals notes that earlier decisions have allowed trial judges to add payments of attorney fees as a part of civil contempt. It is indeed correct that attorney fees have been approved as part of civil contempt in some categories of domestic cases, as an exception to the general rule that attorney fees are not allowed in contempt. Fees have been allowed in civil contempt proceedings for failure to pay child support or alimony or noncompliance with an equitable distribution order. The basis for allowing attorney fees in those kinds of cases generally has been that such fees can be awarded for the underlying action resulting in the order being enforced by contempt and, therefore, are appropriate for enforcement of the order as well. The fine allowed by Tyll v. Berry, though, does not appear to be linked to the original action in any way, apparently opening the door for a new category of sanctions.

Another unusual aspect of the $2,500 fine as a purge condition is that it continues indefinitely into the future, as long as the no-contact order is renewed. The “purge” might arise two years from now if the no-contact order has been renewed and Berry makes a prohibited contact. That sounds different than what we’ve thought a purge was.

A fine that doesn’t go to the schools

To distinguish cases holding that civil contempt may not include an award of costs or damages, the Court of Appeals made clear that the $2,500 represented a fine rather than compensation to the Tylls for any loss or injury they suffered or their costs. It is not obvious how that distinction fits under Article IX, § 7 of the State Constitution. That is the section requiring that the proceeds of all fines and forfeitures go to the public schools, and it’s been the subject of considerable litigation over the last several decades. In those cases the courts seem to have recognized a dichotomy between restitution and penalty. If the money is to be paid to a party and is intended to compensate them for a loss, it is restitution; otherwise it is a penalty and belongs to the schools.

What, though, about a “fine” that is specifically held not to be restitution, to not be for the purpose of compensating a party, but is paid to a private individual rather than to the state? This looks like a new animal and it will not be surprising to see school boards contend that the constitution requires the money to be paid to them.

Conclusion

All in all, then, Tyll v. Berry, is an intriguing and apparently groundbreaking decision. The case itself was remanded to district court because the judge failed to include a finding that Berry had the present ability to pay the $2,500. Regardless of what finally happens to Mr. Berry, though, the decision seems to create a new range of monetary penalties for civil contempt. Even though it appears criminal contempt will no longer be available for violations of no-contact orders, the new, expanded civil contempt option should be attractive to trial judges. If the judge had found Berry in criminal contempt for his past violation of the no-contact order, the maximum fine would have been $500 and the maximum imprisonment would have been 30 days. Instead, by using civil contempt, the judge was able to fine him $2,500 (and apparently more, if the judge had wanted) and have him imprisoned indefinitely until he paid — even though the sanction really is for a past violation of the no-contact order rather than ongoing disobedience.

(A summary of the law of contempt, not yet revised to account for Tyll v. Berry, can be found on the School of Government’s Judicial Authority and Administration website.)

Category: Procedure, Uncategorized | Tags: berry, contempt, tyll

Trial De Novo

Posted on May 30, 2013 by Michael Crowell

Two cases this month from the Court of Appeals, one published and one not, offer different perspectives on the meaning of an appeal for a “trial de novo” in superior court. Neither of the cases speaks directly to what a trial de novo is, but they offer an opportunity to think about the difference between an ordinary appeal and an appeal for a trial de novo. It also is an opportunity to note that lawyers and courts seem to confuse the concept of trial de novo when it comes to appeals of contempt.

To remind you, misdemeanors are first tried before a judge in district court. If the defendant is acquitted, that’s the end of the case. If convicted, the defendant may appeal to superior court for a trial de novo, this time with a jury. The state saves considerable money and time in prosecuting misdemeanor cases because the district court trial is without a jury or court reporter and most defendants accept the verdict there, while the constitutional right to a jury is preserved by the option of carrying the case to superior court.

But what exactly is a trial de novo? It doesn’t take much Latin to understand that de novo means new, so the concept is a new trial. It’s still an appeal, though, so does that limit how new the new trial is to be?

The answer is no. The most commonly stated explanation of appeal to superior court for a trial de novo is that “it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507 (1970). Or, put another way, “The judgment appealed from is completely annulled and is not thereafter available for any purpose.” Id. The appeal to superior court, unlike an appeal to the Court of Appeals or Supreme Court, is not an appeal on the record. It is not an appeal based on error in the district court; it is an appeal of right. The appeal is available even if the defendant pled guilty in district court. “It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of the District Court.” State v. Brooks, 287 N.C. 392, 405 (1975).

The United States Supreme Court has characterized the verdict in the lower court in a trial de novo system as “no more than an offer in settlement” of the state’s case. Colten v. Kentucky, 407 U.S. 104, 119 (1972). The defendant is free to either accept the offer or appeal and seek the decision of a jury in superior court. As the North Carolina Supreme Court has said:

The purpose of our de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a ‘speedy trial’ in the District Court and to offer them an opportunity to learn about the State’s case without revealing their own. In the latter sense, this procedure can be viewed as a method of ‘free’ criminal discovery.

Brooks, 287 N.C. at 406.

Because the appeal is a trial de novo and the slate is wiped clean of the district court proceedings, the superior court may impose a harsher sentence than the defendant received below. Colten v. Kentucky, supra; State v. Sparrow, supra. The defendant may not be questioned about having pled guilty in district court. State v. Overby, 4 N.C. App. 280 (1969). Nor may the defendant be asked about failing to testify in district court. State v. Ferrell, 75 N.C. App. 156 (1985). On the other hand, the state is no longer bound by a plea bargain which allowed the defendant to plead to a lesser charge in district court; it may proceed on the original charge in superior court. State v. Fox, 34 N.C. App. 576 (1977).

Remember that the appeal for trial de novo to superior court is an appeal as a matter of right; it is not based on legal error in the district court. Consequently, procedural defects in the district court, even constitutional violations, are irrelevant to the new trial in superior court. Thus, for example, it does not matter whether the defendant was denied the right to introduce evidence in district court; the trial de novo provides that opportunity and preserves the defendant’s rights. State v. Williams, 41 N.C. App. 287 (1979).

Now, to this month’s two opinions from the Court of Appeals. The first, State v. Macon, is consistent with all we have just said about the meaning of a trial de novo. Macon — about which my colleague Shea Denning already has blogged for other reasons — actually was about a mistrial and whether at the new trial the judge was bound by a ruling of the judge in the first trial on jury instructions. The Court of Appeals said no, the rule about one trial judge not overruling another (discussed in excruciating detail in this bulletin), did not apply in this situation because “’the new trial is “[a] trial de novo, unaffected by rulings made therein during the [original] trial.”’” (quoting Burchette v. Lynch, 139 N.C. App. 756, 760 (2000)). That explanation of a trial de novo following a mistrial is exactly what one would expect from the case law about trial de novo on appeal to superior court.

The second Court of Appeals opinion, the unpublished one, however, is hazier on the trial de novo concept. In re Foster involved an Asheville lawyer who apparently missed all those classes on professionalism and civility and also apparently learned just enough about the First Amendment to think she could say anything she wanted anytime she wanted. She got this case started by repeatedly cursing a magistrate at the county jail, generously mixing in the f-word with other insults. The magistrate responded by summarily holding the lawyer in criminal contempt (and then overreacted by setting a $10,000 cash-only bond when the lawyer announced she was appealing the contempt).

Under the criminal contempt statutes an appeal from a magistrate is to superior court for a hearing de novo. That is, a new trial altogether. When the appeal went to superior court, however, the testimony covered the magistrate’s behavior as well as that of the lawyer, including whether the magistrate had warned the lawyer about being held in contempt and given her a chance to respond. Even when direct criminal contempt is being dealt with summarily, the judicial official has to pause, tell the defendant that contempt is on the table, and give the defendant a chance to respond why sanctions should not be imposed.

The superior court found the lawyer in contempt, but the Court of Appeals reversed. It did so because the magistrate failed to give the lawyer the opportunity to say why contempt sanctions should not be imposed. But missing from the briefs and from the opinion is discussion of why the magistrate’s handling of the contempt mattered if the lawyer got a hearing de novo in superior court. Remember, an appeal to superior court for a trial de novo is not an appeal on the record, it is not based on error by the magistrate. It is an altogether new proceeding, one purpose of which is to protect any rights denied at the original hearing. The defendant lawyer’s right to explain why contempt was not appropriate was preserved by the new hearing in superior court.

The unusual circumstances of Foster probably explain why the Court of Appeals viewed the appeal to superior court more like an appeal on the record than a de novo proceeding. Upon being held in contempt by the magistrate on Saturday evening the lawyer was taken straight to jail and could not post the $10,000 cash bond. She remained locked up until the bond was changed Monday morning by a judge. Thus, even though the subsequent contempt hearing in superior court was de novo, she already had served part of the five-day contempt sentence. Indeed, when the superior court found her in contempt the judge ordered that she be jailed for 48 hours but then gave credit for that amount of time already served.

Given those facts, it is not surprising that everyone involved in the appeal to the Court of Appeals focused on the propriety of the magistrate’s original decision on contempt rather than on the de novo aspect of the superior court proceeding. Still, the case creates some confusion about the meaning of an appeal for a trial de novo. And it reinforces my perception that lawyers handling appeals of contempt from magistrates and district court often want to argue about the procedure followed by the magistrate or district judge even though the superior court hearing is de novo. Apparently it is the immediacy of the contempt sanction, the fact that the offender may have already sat in jail for a while, that triggers the sense that one cannot really start over.

(As a footnote, a bill pending in the General Assembly would require review of the bail bond within 24 hours of the defendant being jailed for criminal contempt. The bill met the crossover deadline and remains eligible for final action this session.)

Category: Procedure, Uncategorized | Tags: appeals, contempt, de novo, foster, trial de novo

Contempt and Cellphones

Posted on May 1, 2013 by Michael Crowell

A couple of this blog’s recent Friday News Roundups have linked offbeat stories about contempt and cellphones. In the first a Michigan judge held himself in contempt and ordered a $25 fine when his cellphone rang in court. The second story was the federal Sixth Circuit upholding a 30-day contempt sentence for a courtroom spectator caught texting in federal district court. Actually it was more than that, as he later admitted to also using his phone to photograph his friend being sentenced. After all, what are friends for?

Some readers might be wondering about contempt and cellphones in North Carolina courtrooms. In the Tar Heel state you might be held in contempt if your phone goes off, though not necessarily. Here is a brief primer on contempt and some observations about cellphones.

There are two kinds of contempt, civil and criminal. Civil contempt is used only when a person is currently disobeying a court order, and its only sanction is to lock up the person until they comply with the order. The most common example is the deadbeat father not paying child support. He does not get a set sentence; he stays in jail until he pays, and he gets out just as soon as he catches up on the support.

Criminal contempt can be for any of a number of behaviors listed in the statute. The most common are disrupting or showing disrespect for the court, not following the court schedule, refusing to testify. It’s shouting at the judge, cursing, refusing to sit down, coming late to court — the stuff people usually think about when they hear the word “contempt.” Refusing to obey a court order also may be criminal contempt, just as it may be civil contempt. But it can’t be both, the judge has to choose one, either civil or criminal contempt. The difference between the two is that criminal contempt is used to punish the person for past behavior; civil contempt is used to get the person to comply. Criminal contempt carries a set punishment which can be a fine of up to $500 and/or jail for up to 30 days; civil contempt is jail until the order is complied with.

The ringing cellphone in court, or texting or taking photos, would be criminal contempt, not civil. Contempt is being used to punish the person for something they’ve already done wrong, not to get them to obey a court order. The ringing phone could be contemptuous either because it disrupts the court or because it is disobedience of a court order to not bring a phone into the courtroom or to turn it off. Using a phone to take photographs or record what’s happening in court also would violate the rules about cameras in the courtroom.

Before using criminal contempt, the first question a judge would need to ask is whether a warning is required. Some behavior, like shouting and cursing, is inherently contemptuous and needs no warning from the judge. Everyone knows it is wrong and it may be punished the first time a person does it. For much other conduct, though, a newcomer to court might not know the rules. So, before someone can be held in contempt for that revealing dress or reading a newspaper, they have to be warned.

Given the unfortunate world in which we live in which loudmouths feel free to talk on their phones everywhere, not everyone will know that a cellphone is not allowed in court. And they may not know the rules for that particular courtroom because practices on cellphones vary from judge to judge. Some allow no electronic devices in court at all; others say it’s okay but they have to be turned off; some allow texting while others do not. Consequently, before someone can be held in contempt for cellphone use in the courtroom they have to be told it is wrong. Usually that is accomplished by a sign prominently displayed at the entrance to the courtroom or by an announcement by the bailiff.

The next question a judge would need to ask about criminal contempt is whether the act was willful. An action cannot be criminal contempt unless it is done willfully, and the court has to find the willfulness beyond a reasonable doubt. If the cellphone owner thought it was turned off, is surprised when it rings, then the act is not willful and contempt is not appropriate.

That is what happened in State v. Phair, 193 N.C. App. 591 (2008). During a criminal trial in Lee County a lawyer’s cellphone started ringing. A notice on the courtroom door and an announcement by the bailiff had said to turn off cellphones. The ringing phone interrupted the trial and the judge found the lawyer in criminal contempt. The evidence, though, was that the lawyer thought she had turned off her phone and was apologetic when it happened. As the Court of Appeals said, “Although defendant admits that she knew from years of practicing law the she should turn her cell phone off while court is in session, it seems clear that defendant merely made a mistake in not turning her cell phone off before entering the courtroom.” Based on that record, the Court of Appeals reversed the contempt, saying the act was not willful.

The other point to keep in mind about criminal contempt is the difference between direct and indirect contempt. Almost always a cellphone violation in the courtroom will be direct criminal contempt. Direct criminal contempt is contempt that occurs in the judge’s presence, in the judge’s sight or hearing. When contempt is direct, the judge may act summarily to punish the offender right then and there. There is no need to issue a show cause order and schedule a hearing because the judge already has witnessed the conduct and does not need to hear from witnesses, as would be the case if the contempt was indirect, not in the judge’s presence.

What trips up judges sometimes is that the offender has to be given a chance to be heard even when it is direct criminal contempt. Although no witnesses are needed, both the contempt statute and due process require that the judge tell the cellphone user that the judge is considering contempt and give the user a chance to explain why contempt is not appropriate. In State v. Randell, 152 N.C. App. 469 (2002), for example, the Court of Appeals reversed the direct criminal contempt conviction of a spectator for refusing to stand at the call of the bailiff, because the judge failed to give the person a chance to explain.

A Winston-Salem police officer drew attention several months ago when he attempted to text a message to the prosecutor while on the stand testifying. A local newspaper columnist took the judge to task for not immediately confiscating the phone and holding the cop in contempt, as you can read here. Newspaper columnists generally are not experts on contempt, though, and this one was wrong in thinking the judge could act on the spot. Although the officer was texting while on the stand, the judge did not see it and did not learn about it until told later. Thus the texting was not in the judge’s sight or hearing and he could not use the summary procedure available for direct contempt, he had to issue a show cause order and schedule a hearing as in any other case of indirect criminal contempt. The key was that the judge needed witnesses to testify to what happened.

The punishment for criminal contempt is censure (rarely used), a fine or up to $500 or jail for up to 30 days, or any combination of those. Typically judges have the bailiff take the offending cellphone and hold it for a while. That is probably okay as part of the court’s authority to stop the interruption of the proceeding and bring the contempt to an end. But the phone ought to be returned to the owner when court is over, if not earlier, unless it is the very rare case where the cellphone is needed as evidence of the contempt. There is no statutory authority for forfeiture of the phone and the sheriff won’t be able to figure out how to dispose of it if ordered to keep it. Although it is clearly wrong and beyond their authority, there still are a few judges who will order the cellphone held until the owner contributes $50 or so to a local charity.

In sum, a ringing cellphone — or texting or taking photographs — is not automatically contempt, but can be criminal contempt if proper warning has been given. The violation has to be willful and the judge may punish the person on the spot if the judge saw or heard the phone. Still, the person has to first be given a chance to explain. The maximum punishment is $500 and 30 days in jail, but the offense seldom would seem to justify anything more than a minimal fine.

Category: Procedure, Uncategorized | Tags: cell phones, cellphones, contempt

Abolishing Judgeships: Can They Do That?

Posted on February 13, 2013 by Michael Crowell

One of the livelier issues in last week’s General Assembly was the Senate’s move to abolish 12 of the 15 special superior court judgeships. Senate Bill 10, which would affect important executive branch boards as well, passed the Senate easily and was sent to the House, but questions remain about the authority to cut judges’ terms short.

May the General Assembly abolish a judgeship during the middle of a term? The answer is a clear “probably not, but maybe.”

Let’s start by recalling what special superior court judgeships are. Article IV, Section 9 of the North Carolina Constitution empowers the General Assembly to divide the state into “a convenient number” of superior court districts and specify the number of judge to be elected in each. These are regular superior court judges who, pursuant to Section 16, are elected by the voters and serve eight-year terms.

Section 9(1) also says the legislature “may provide by general law for the selection or appointment of special or emergency Superior Court Judges not selected for a particular judicial district.” The constitution is silent on the terms of special judges and how they are to be chosen. Special judges do not follow the rotation of regular superior court judges between districts for holding court. Specials are assigned on a week-by-week basis to any county in the state as needed to fill in for a sick judge or one who is finishing a case elsewhere; to handle a case when local judges have a conflict; to help reduce a backlog; to preside over a troublesome case; or otherwise to fill in when a regular judge is not available or extra assistance is needed.

There currently are ~~112~~ 97 regular superior court judges and 15 specials, for a total of 112 judges.

The number of special superior court judges has varied over time, as have the terms of their offices — all of which have been set by statute. The legislature always has chosen to have them appointed by the governor. Four-year terms used to be common, but all the judgeships established under current GS 7A-45.1 are for five-year terms that begin when the judge takes the oath of office. The 15 specials are serving terms that expire at different times over the next several years. Four terms expire this year between January 9^th and March 14^th and the two latest ones do not end until December 31, 2017.[1]

Senate Bill 10 would immediately abolish 12 of the 15 special superior court judgeships, leaving only the three who are assigned to the business court.

The State Constitution itself says nothing about the abolition of judgeships. Nor is there much modern case law, in North Carolina or elsewhere, on the issue. Most of the cases stem from 19^th century power struggles among the three branches or later court reorganizations more related to court workloads and economy.

The standard statement of the law, here as in other states, is that the legislature may abolish a legislatively-created office at any time but may not alter a constitutional office. In Mial v. Ellington, 134 NC 131 (1903), while approving the elimination of a legislatively-created office of county road superintendent, the North Carolina Supreme Court said:

“It will save any possible confusion or misunderstanding to say that nothing said by us in regard to the power of the Legislature applies to offices provided for by the Constitution. These are beyond the power of the Legislature to affect, either in respect to the term, or, except within the limitations fixed, the salary.”

In two cases in the early 1940s, Efird v. Board of Com’rs for Forsyth County, 219 NC 96 (1941), and Brown v. Board of Com’rs of Richmond County, 223 NC 744 (1943), the Supreme Court upheld the termination of local judgeships during the judge’s term. Those decisions, however, came before the state constitution was amended in the 1960s to provide for a uniform statewide court system. The judgeships had been created by the legislature pursuant to its pre-1960s constitutional authority to establish “such other courts inferior to the Supreme Court” as it wished. The offices were legislatively created. Consequently, as the court said in Efird: “That the General Assembly had authority to abolish the Court cannot be gainsaid. ‘If the Legislature had the right to create the court, it had the right to abolish.’” (quoting Queen v. Com’rs of Haywood, 193 NC 821 (1927). Our appellate courts have not had to confront a legislative decision to abolish a constitutionally-recognized judgeship in mid-term.

Is a special superior court judgeship a constitutional office such as to insulate the incumbents from having their terms cut short? The office is constitutional in the sense that it is recognized and authorized by Article IV, Section 9(1). If the law is understood to mean that any tinkering with an office listed in the constitution threatens separation of powers, special superior court judgeships qualify.

On the other hand, the constitution does not specify the number of special judgeships, nor their terms of office, nor their method of selection. Those matters clearly are left to the discretion of the General Assembly. Special judges, consequently, do not share all the characteristics of other clearly constitutional offices. Obviously the General Assembly could not eliminate the office of chief justice or one of the associate justices of the Supreme Court, because the constitution specifies that there will be a chief justice and at least six associates and specifies their terms of eight years. What, though, when the constitution leaves it up to the legislature to decide the number of superior court judges — and, for specials, their term of office?

The few decisions from other states are divided. In the late 1800s, for example, the Tennessee Supreme Court in State ex rel. Halsey v. Gaines, 70 Tenn. 316 (1879), said the legislature could terminate a circuit court (comparable to our superior court) in the middle of the incumbent’s term as part of a court reorganization. The Tennessee Supreme Court emphasized that the state constitution gave the legislature discretion as to the number of circuit courts; the constitutional provision on eight-year terms did not override that authority. Otherwise, the court said, the legislature would be stuck with maintaining a judgeship and paying a salary for some years after it had determined that the position was unnecessary. The court went on to say that the legislature could not force a disfavored judge out under the guise of court reorganization — apparently a violation of separation of powers — but there was no suggestion that the realignment of circuits was a pretext.

In contrast to that Tennessee decision, the Indiana Supreme Court in the much more recent decision of State v. Monfort, 723 NE2d 407 (Ind. 2000), said a court reorganization had to await the completion of an existing superior court term, even though the term had been established by statute rather than the constitution. The Indiana Supreme Court recognized the legislature’s authority to abolish the judgeship, but held that it could not do so before the sitting judge’s term expired. To allow the legislature to cut judges’ terms short would violate separation of powers, would “put the official life of every judge . . . at the mercy of the legislature,” and would “utterly destroy all judicial independence.”

The only recent statement of the North Carolina Supreme Court about judicial terms came in State ex rel. Martin v. Preston, 325 NC 438 (1989), and suggests that the justices would not approve abolishing a superior court judgeship in the middle of a term. Preston was a challenge to the legislature’s realignment of superior court judges’ terms to settle a voting rights case. The General Assembly had extended the terms of some judges in multi-judge districts to put all judges in the district on the same election schedule, giving African American voters more opportunity to elect candidates through single-shot voting. In upholding the one-time extension of terms to satisfy the federal Voting Rights Act the Supreme Court noted that it was the only way to realign terms because “staggered terms could not be eliminated by shortening some existing terms of office.” There was no other discussion of the issue, and the one case cited in the opinion was not really on point, but the quote indicates a view that the term of a superior court judgeship may not be reduced by the legislature.

The 1987 legislative act that realigned superior court terms to resolve voting rights issues, SL 1987-509, also abolished the special superior court judgeships existing at that time. It did so, though, without having to face the issue of cutting terms short. The eight special judges were all serving four-year terms that were due to expire June 30, 1987, anyway. The General Assembly, acting just before the terms expired, simply set the special judges’ new terms to begin July 1, 1987, and expire at the end of 1988.

In sum, we do not know for certain whether the General Assembly constitutionally can abolish the 12 special superior court judgeships. The only clues from North Carolina Supreme Court cases would suggest that the legislature cannot cut short the incumbents’ terms, but the court never has faced this issue directly. Considering the case law from other states, the elimination of the special judgeships would have a better chance of approval if it were part of a larger, clearly defined court reorganization. That context would enhance the argument that the legislature was doing no more than exercising its constitutional authority to align the structure of the trial court with needs and resources. If the legislature, however, abolished these judgeships just to give the governor a chance to name his own judges it would make the separation of powers objection stronger.

[1] Questions can arise about the actual terms of special judges for two reasons. First, the acts establishing the judgeships are unusual, saying that the term of the initial term begins when the judge takes the oath of office, rather than on a day certain. Second, in practice governors often have not appointed replacements at the end of the initial judge’s term, sometimes waiting for months after the five-year term has expired.

Category: Uncategorized | Tags: abolishing judgeships, sb 10, special superior court judges

Anonymous Juries

Posted on September 20, 2012 by Michael Crowell

At the Oklahoma City bombing trial of Timothy McVeigh jurors’ names were kept private. So, too, in the corruption trials of former governors Edwin Edwards of Louisiana and Rod Blagojevich of Illinois. Likewise in the recent Chicago trial for the murder of Jennifer Hudson’s mother and other family members. And last year Maryland’s courts adopted rules saying jurors are to be referred to by numbers, not names, and authorizing the trial judge to order that names and addresses be withheld from everyone except counsel when there is substantial danger of harm or undue influence.

Then last month the federal Fourth Circuit Court of Appeals weighed in on the subject. In United States v. Dinkins, No. 09-4668, 09-4669, 09-4755 (August 14, 2012), the court approved the use of an anonymous jury in a murder/drugs/firearms trial in Baltimore. The Fourth seems to be the last federal circuit court to rule on anonymous juries, and there now is fairly uniform agreement among the federal courts on when they are permitted. It is worthwhile to review what the federal courts say since there is little useful state law, and state courts generally tend to follow federal precedent on issues with First and Sixth Amendment implications.

(There appears to be only one North Carolina appellate case that even touches on the issue of anonymous juries, and it is a glancing blow. In State v. Garcell, 363 NC 10 (2009), the Supreme Court said that the trial judge did not have to investigate possible juror exposure to external influence just because the jurors sent a note to the judge asking to be referred to by number rather than name. The opinion does not say whether the judge granted the jury’s request to use numbers.)

First, let’s be sure we know what we mean by an anonymous jury. Anonymity usually begins during jury voir dire and continues throughout the proceedings. The degree of anonymity can vary. Sometimes it means withholding the names of jurors from the public and referring to jurors or prospective jurors in the courtroom by number rather than name — though the lawyers still have names, addresses and other identifying information. At other times the anonymity may be broader, shielding the jurors’ names and addresses not just from the public but from the defendant, defendant’s counsel and the prosecutor as well. The court might also withhold certain biographical information such as the identity of the juror’s employer.

In the Baltimore case the charges against the defendant included murdering an informant who was to be a key witness on drug trafficking and on the murder of another informant. The trial judge kept from the lawyers the names, addresses, spouses and employers of the jurors. However, the jury questionnaire which the lawyers had was extensive and included information about the employment of the jurors and their spouses, albeit without naming the employers. The lawyers also got jurors’ counties, neighborhoods and zip codes.

The basic message of the Fourth Circuit is that, yes, anonymous juries are permitted when (1) there is strong reason to decide that jurors need protection from interference or harm, or if without anonymity the integrity of the jury function will be compromised, and (2) the court takes safeguards to minimize interference with the rights of the defendant. The defendant’s rights needing protection are the right to an impartial jury, for which effective voir dire is essential, and the right to be presumed innocent, which can be affected by a suggestion that jurors need to be protected from the defendant.

Like the other federal circuits, the Fourth says the “Ross factors” — from United States v. Ross, 33 F.3d 1507, 1520 (11^th Cir. 1994) — should be used to determine whether there is strong reason to believe an anonymous jury is needed:

“(1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.”

By statute, anonymous juries are allowed in federal capital cases only when it is shown by a preponderance of the evidence that disclosure of names and addresses will jeopardize someone’s life or safety. 18 U.S.C. § 3432. For non-capital cases, the test is whether “the interests of justice” require anonymity. 28 U.S.C. § 1863(b)(7). The Ross factors inform the decision in both kinds of cases.

Emphasizing that the Ross factors are not exclusive, and that the trial court must always engage in a context-specific inquiry, the Fourth Circuit found sufficient basis for an anonymous jury in the case before it. The defendants belonged to an extensive and violent drug trafficking organization; one of the charges was murdering a former gang member who had turned informant and was to be a witness against them; other gang members were at large; still other members were also being tried for murder; and defendants were facing potential sentences of death or life imprisonment.

To safeguard the defendants’ rights the trial judge had offered to give the jurors a non-prejudicial reason for the anonymity — that the court just wanted to protect them from unwanted media attention. Additionally, jurors were not told that biographical information was being withheld from the lawyers. And even though names, addresses and spouses’ and employers’ identities were withheld, the lawyers did get zip codes, neighborhoods and considerable other information, including the nature of jurors’ and spouses’ employment, from the jury questionnaires. Consequently, the Fourth Circuit said, the defendants’ rights were preserved. The trial court was ready to explain the anonymity in a way that avoided labeling the defendants as dangerous, and their lawyers were not unduly handicapped in conducting an effective voir dire.

Although there is no United States Supreme Court decision on anonymous juries, the circuit courts’ views are consistent with the high court’s approach to First and Sixth Amendment rights to open proceedings. The court has recognized both a First Amendment right of the public to attend jury voir dire (Press-Enterprise Co. v. Superior Court of California, 464 US 501 (1984)) and a Sixth Amendment right of the defendant to have voir dire be open (Presley v. Georgia, 558 US 209 (2010)), but allows the proceedings to be closed when necessary to serve an overriding governmental interest — e.g., protecting witnesses — so long as the narrowest available restriction is used.

While there is no North Carolina law, statutory or otherwise, approving anonymous juries there also does not seem to be anything that would prevent their use in the kind of circumstances described by the Fourth Circuit. The statutes on jury lists address only the master jury list prepared by the jury commission annually or biannually, depending on the county, and, as rewritten in 2012, provide that addresses are confidential. N.C. Gen. Stat. § 9-4, as amended by SL 2012-180, § 4. The statutes, therefore, would not seem a barrier to withholding information about jury panel members. And while state case law acknowledges a potential First Amendment right of access to court records, at least when the records in question historically have been open to the public, that right may be overridden by a higher interest such as protecting a defendant’s right to a fair trial or protecting witnesses. (For more information about the case law, see Access to Court Records in North Carolina and Judicial Privilege, Administration of Justice Bulletin No. 2012/01.)

It would seem, then, that North Carolina case law does not present a barrier to employing anonymous juries in the right circumstances. And it would seem that the Fourth Circuit’s decision in United States v. Dinkins is a good guide to the right circumstances — and to the precautionary steps that need to be taken to preserve the defendant’s rights.

I would be interested to hear from anyone who has experience with anonymous juries.

Category: Procedure, Uncategorized | Tags: anonymous juries, dinkins, fourth circuit, judicial administration

What Is a Judge’s Commission?

Posted on June 20, 2012 by Michael Crowell

Every now and then someone asks about the significance of a trial judge’s commission. Just what is a judge’s commission, when is it needed, where does it come from, and what difference does it make?

If a question about a commission is ever to arise, it most likely will be in superior court and is largely a byproduct of the system of rotating superior court judges who, remember, have jurisdiction to hold court anywhere in the state. So we first need to review the system of rotation.

Article IV, § 11 of the North Carolina Constitution honors the tradition of judges riding circuit and requires that it be maintained through rotation: “The principle of rotating Superior Court Judges among the various districts of a division is a salutary one and shall be observed.” The same section gives the chief justice the duty of assigning judges: “The Chief Justice of the Supreme Court, acting in accordance with rules of the Supreme Court, shall make assignments of Judges of the Superior Court and may transfer District Court Judges from one district to another for temporary or specialized duty.”

By statute (G.S. 7A-345), the assistant director of the Administrative Office of the Courts ― currently David Hoke ― assists the chief justice in assigning judges. Another section (G.S. 7A-47.3) declares that judges are to be assigned to effectuate the constitutional provision on rotation.

Rotation, as the constitution says, is based on judicial divisions. The state currently is divided into eight divisions ― many of us recall when it was still just four ― and each superior court judge travels among the districts within the judge’s division. The principal method of assigning superior court judges is the Master Calendar, the Fall 2012 version of which may be found here.

The Master Calendar shows where each superior court judge is assigned for a six-month period. If the judge is assigned to a district comprised of a single county, like the 10^th (Wake County), the judge will spend the entire six months in that one county. If the six-month assignment is to a multi-county district the judge will hold sessions of court in different counties of the district according to the schedule in the Master Calendar. A judge assigned to the 9^th District, for example, might be in Granville County one week, Vance the next, Warren the week after.

Now, back to judges’ commissions.

For regularly scheduled sessions of superior court the Master Calendar itself serves as the assignment, meaning no individual commissions are issued. Things do not always work out as planned, however, and the Master Calendar never meets all the needs for assignment of judges. Judges get sick, they have to recuse themselves from cases, some trials run for weeks on end, or there simply is too much work and new sessions of court need to be scheduled. Consequently, Mr. Hoke spends a fair amount of time swapping judges from their original assignments, cancelling sessions or scheduling new ones, and sometimes has to bring retired judges back for temporary service. In each instance this means issuing a commission confirming the new assignment.

When an assignment changes from the Master Calendar, or a new session is scheduled, Mr. Hoke prepares and sends a commission to the judge, the clerk’s office, and to various designated officials such as the judge’s judicial assistant and, for criminal sessions, the district attorney.

Questions about a superior court judge’s commission are rare and are likely to arise only when the judge is holding court outside the Master Calendar schedule. The validity of the judge’s commission was disputed, for example, in the defendant’s appeal of his murder conviction in State v. Eley, 326 N.C. 759 (1990). Special assignments are common in murder cases because of the length of the trials, making it difficult to fit them in regular court schedules, and because of the need for a seasoned judge to preside. In this instance Judge Beaty of Winston-Salem was assigned to a special session of court in Hertford County starting in June 1988. After conviction it was discovered that there was no commission on file for Judge Beaty to be in Hertford.

The Eley opinion quotes extensively from the affidavit of Dallas Cameron, who then occupied the position now held by David Hoke, describing the assignment and commission process. The court concluded that Cameron had issued a commission but it simply had never been received. Thus, despite the missing commission, Judge Beaty still was authorized to hold court. The opinion included this:

“Judge Beaty’s jurisdiction, power, and authority as a superior court judge flowed from the Constitution of North Carolina and his appointment and commission by the Governor as a superior court judge. N.C. Const. art. IV, § 9. His assignment by the Chief Justice of this Court pursuant to article IV, § 11 of the Constitution of North Carolina, to preside at the 6 June 1988 special session of Superior Court of Hertford County was merely the mode by which he was directed to preside at that session of court. The issuance of a commission by the Chief Justice . . . does not endow the judge with jurisdiction, power, or authority to act as a superior court judge. The commission so issued merely manifests that such judge has been duly assigned pursuant to our Constitution to preside over such session of court.” Eley, at 764.

The court also held that the chief justice could, as he did, issue a commission to Judge Beaty nunc pro tunc in October 1989 assigning him to the June 1988 session.

One should not read the court’s language above as saying that a commission does not matter. Keep in mind that the holding in the case was that the chief justice had assigned Judge Beaty to the session and that a commission actually had issued, it just could not be found. If Judge Beaty had never been assigned to the Hertford session his acts would have been void, regardless of his statewide jurisdiction.

That was the result in Vance Construction Company, Inc., v. Duane White Land Corporation, 127 N.C. App. 493 (1997). While assigned to a session of Warren County Superior Court, Judge Brown of Edgecombe County decided a case about construction of a boat storage facility. When questions later arose about a credit against the judgment the parties returned to Judge Brown, now back in Edgecombe County. Unfortunately, the judge was no longer assigned to Warren County, did not have a commission to hold court in Warren County, and did not have in-chambers jurisdiction as a resident judge of Warren County, so his order was void.

Commission issues can arise in district court as well. District court judges generally have jurisdiction only within their district, and their assignments to sessions of court are made by the chief district judge. As the constitutional provision quoted above says, though, the chief justice may transfer a district judge from one district to another for temporary duty. In those situations a commission must be issued, just as for a superior court judge, and questions may arise about the judge’s authority.

In Lockert v. Lockert, 116 N.C. App. 73 (1994), for example, Judge Neely of Asheboro was assigned to hear an equitable distribution case in Rowan County because of the local judges had disqualified themselves. An initial hearing was held in September 1990, then the trial itself began in November and concluded in December. The losing side challenged the judgment, claiming that Judge Neely’s commission was defective. The argument was that the commission only assigned the judge for a one-day session on September 11^th and thus everything occurring after that was void. Well, the actual wording of the commission was that Judge Neely was assigned for the period of “one day or until the business is disposed of.” The Court of Appeals can read English as well as you and I can and held that the judge clearly had jurisdiction beyond the one day as necessary to complete the case. The “until the business is disposed of” phrase is common in judges’ commissions.

The lesson in all this is that commissions can be important, especially when superior court judges are assigned outside the Master Calendar, but the key is whether the chief justice has properly assigned the judge to the session of court and the commission itself is only evidence of that assignment.

If you have read all the way to this point, you also may be interested in the issues covered in the riveting 2008 Administration of Justice Bulletin entitled “Out-of-Term, Out-of-Session, Out-of-County.” It can be found on the School of Government’s Judicial Authority and Administration webpage.

Category: Uncategorized | Tags: commissions, judicial administration

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