But the changes in North Carolina are broad ones, reflecting a desire on the seven-member court to open up the electoral process and allow judicial candidates to say what they please about legal issues and to seek campaign contributions directly from contributors.
Judicial elections in this state have changed significantly in recent years, gradually moving to a nonpartisan basis for both trial and appellate courts. In the next election, the state will have an experiment in public funding of elections for N.C. Court of Appeals and Supreme Court if candidates voluntarily agree to strict expenditure limits.
Those changes were debated long and often loudly in the N.C. General Assembly in 2001 and 2002 before their adoption last fall.
But the Supreme Court’s changes to the state Code of Judicial Conduct were handed down quietly on April 2 and posted on the court’s Web site www.aoc.state.nc.us. The code sets out in seven canons the standards that trial and appellate court judges are expected to meet. Some are obvious: “A judge should uphold the integrity and independence of the judiciary,” Canon 1 reads, and “A judge should avoid impropriety in all his activities,” Canon 2 says.
Some are more pointed. Canons 5 and 6 relate to a judge’s finances and seem to restrict a judge from earning income for settling an estate other than for immediate family, and require judges to disclose sources of outside income.
Then there’s Canon 7, governing political activity, which is dramatically different from the standard governing judicial candidates for decades in this state. The old canon prohibited a judge from raising money from contributors, but allowed a committee to raise money in his behalf. It also prohibited a judge from making pledges or promises of conduct in office.
That was before the June, 2002 U.S. Supreme Court decision that struck down Minnesota’s restriction on judicial candidates’ announcing their views on disputed legal or political issues. The high court said it was a violation of candidate’s First Amendment rights to require them to run for judicial office but prohibit them from speaking out on real issues.
The U.S. Supreme Court ruling struck down only the so-called “announce” clauses that restricted judicial candidates from announcing their positions on specific issues. North Carolina’s judicial code has long been interpreted to mean candidates ought not get down to specifics, leaving many wondering about the wisdom of a system where candidates have to campaign for votes but cannot say anything useful beyond what a swell person they are.
That’s changing, with new freedoms that seem to go well beyond what the U.S. Supreme Court struck down.
The new Canon 7 allows judicial candidates to directly seek contributions from individuals, allows judicial candidates to endorse candidates for judicial office and does away with the old “pledges or promises” clause.
Under Canon 7 a judicial candidate could not raise money for a political party or for another candidate, but beyond that it gives judicial candidates in the state a lot of freedom to raise money and talk about issues.
This worries some and pleases others. One state judge who was not involved in the drafting of the rules thought the court went too far in opening the process. “The Supreme Court said in the Minnesota case that the bridle can come off the horse, but with these rules our court has taken off the saddle, the bridle, the blinders, the straps, the stirrups and left the barn door wide open.”
But Raleigh lawyer A.P. Carlton, president of the American Bar Association and a driving force in judicial reform, thought the court’s revised code of conduct was a natural extension of the U.S. Supreme Court’s decision striking down restrictions on free speech.
What’s vexing to some is the possibility that some judicial candidates will abuse the ability to talk about issues at the same time they’re using the newfound ability to seek campaign contributions. A judge asking for a political contribution from a donor may find himself asked to say how he’d rule on an issue, or at least what he thought about a subject.
A wise candidate would decline to even give a hint in such a setting, but the temptation would be intense for the candidate to at least give a satisfactory wink and a nod. It’s hard to see how that’s an improvement over the old system.
Jack Betts is a Charlotte Observer associate editor based in Raleigh. Reach him at (919) 834-8471 or at jbetts@charlotteobserver.com.
