<< Back 5/29/02 Merit selection of judges is long overdue By Marshall Frank Picture this scenario. Judge Sylvester Harumph is presiding over a civil case involving allegations of impropriety. Thousands of dollars are on the line. The case is a cliffhanger, to be decided by judicial discretion. Attorney “A” represents the plaintiff. He donated $500 to Judge Harumph’s campaign. Just a coincidence, of course. Attorney “B” represents the defendant. He donated $500 ... uh, to Judge Harumph’s opponent. Guess who wins. Cynical? Yes. Without question. That is but one example of what’s wrong with the system of electing judges. Every eight years, judges run for election in all three major court systems in the state of North Carolina. Supreme Court and Appellate Court judges run in partisan elections, Superior Court in non-partisan. That means candidates must raise money, accept campaign contributions and get their names out there on every poster and billboard they can afford. Politics is politics. Anytime money is paid, favors are owed. That, by itself, corrupts a judicial system that is supposed to be beyond reproach. There are three ways in which the average voter can assess a candidate to be a judge. First, if a voter has had a case before that judge in court. Of course, that will be a subjective vote, depending on how that person’s case was decided. It, by no means, is an accurate measure of a judge’s level of competency or honesty. Second, by name recognition. Candidates with the most cash can saturate telephone poles, billboards and television ads so that you’ve heard the name so much, you feel that you already know the person. In fact, it tells you nothing about a candidate’s ability or judicial temperament. Third, if the voter takes the time and effort to research a candidate’s record on the bench, or in other matters of public office. This is ideal, but I seriously doubt if even one percent of voters go through the trouble, leaving the other 99 percent to elect complete boobs to the bench. How is Joe Citizen to know if Appellate Court Judges K. Edward Greene or James A. Wynn Jr. are worth being re-elected? They haven’t a clue. Then, there are the roving Superior Court Judges who render verdicts in districts where they do not even answer to the voters at all. Just over one year ago, I wrote feature which appeared in this newspaper about the Honorable (ahem) Loto G. Caviness of the 29th District (Marion) who visited Haywood County just in time to release the arsonists who burned down the Back Door Bar & Grill. The owners, caught red-handed, pled guilty to hiring two thugs who torched the bistro in the middle of the night for insurance money, jeopardizing the lives of scores of firefighters and cops, costing multi-thousands of dollars to the taxpayer, not to mention defrauding the insurance company. The judge slapped them on the wrist with a small fine and probation, thus earning the appropriate sobriquet, “Let ‘Em Go Lo.” She’ll undoubtedly run for office and get re-elected in her district by voters who have no idea how incompetent she really is. In a recent poll, 76 percent of American voters said they believe that campaign contributions made to judges have some influence on their decisions. That’s appalling. The overwhelming majority of voters feel there are two systems of justice in America, one for the rich and powerful, one for everyone else. This view is also supported by 80 percent of judges themselves. Look no further than O.J. In another poll, 70 percent of voters in America would support the appointment of judges by merit selection and retention. In order to purge corruption — or the perception of corruption — from the bench, merit selection is the only way to go. At present, only 21 states (including North Carolina) still adhere to the system of electing all levels of judges, while 19 have gone exclusively to a merit selection system. Another 10 states employ a mix, relegating the higher level judges to merit selection and lower levels to the voters. How does it work? Merit selection is a way of choosing judges that uses a non-partisan commission of lawyers and non-lawyers to locate, recruit, investigate and evaluate applicants for judgeships. A commission submits the names of the most highly qualified candidates (usually three) to the appointing authority, often the governor, who then makes the final selection. For subsequent terms, judges are evaluated for retention either by a commission or by the voters in an uncontested election. Commissioners are usually chosen by panels of public officials, attorneys and private citizens. While no system is totally perfect, this is one where judges are rated more on their qualifications and not on political, social and financial clout. And it sure eliminates the continuing problem of lawyers practicing before judges who get preferential treatment based on campaign contributions. I learned about the dilemma early on in my career. As a young uniformed cop, I arrested an attorney named Mike Zarowny for DUI. A giant of a man, bald as Mr. Clean, Zarowny was driving at 3 in the morning on the wrong side of the street. He reeked of alcohol and staggered like a common drunk. Handcuffs barely fit around his wrists. Three months later, I stood in amazement as an elected judge by the name of John Strickland acquitted Zarowny, saying the breathalyzer machine had not been property calibrated. As Zarowny marched out of the courtroom smiling, the judge leaned over the elevated bench and looked down his granny glasses at me, whispering, “Didn’t you know who that was, Officer Frank?” We must have an honest and fair system for judicial selection. Without it, the system fails. U.S. Supreme Court Justice, Anthony Kennedy said, “If there is the perception or the reality that courts are influenced in their decisions based upon campaign funding sources, we will have a crisis of legitimacy, a crisis of belief, a crisis of confidence.” A former Texas Supreme Court Justice said it better: “If you don’t dance with them that brung you, you may not be there for the next dance.” (Marshall Frank is a retired Metro Dade deterctive and a novelist. He lives in Maggie Valley and Florida. He can be reached at mlf283@aol.com)