Courts, Legislation, and the Law.  North Carolina Law Talk Policy and Legal Issues 2016

North Carolina Law Talk Host, Bill Powers, and Raleigh Criminal Defense Lawyer John Fanney, discuss legal policy and trends in the courts of North Carolina.

• DWI Impaired Driving Laws
• Upcoming Legislative Term
• Trends in the North Carolina Judicial System

 

See More:  DWI Sentencing in North Carolina

 

 

 

Modified Transcript of “North Carolina Law Talk Policy and Legal Issues 2016” for the Hearing Impaired

 

Bill:	Hi, I’m Bill Powers. I’m the Host of North Carolina Law Talk, and I am joined with my friend and fellow Attorney, John Fanney.  How are you doing, John?
John:	Bill, I’m doing great. Thanks for having me again today.
Bill:	How are things in Raleigh?
John:	Well, it is a lovely day. Business has been brisk. Justice has been served in some respect, so things are going very well. Thank you for asking.
Bill:	Good, good. Well, as our viewers know, if you watch us regularly, North Carolina Law Talk is a policy format, I guess, to discuss trends in North Carolina law. They could be civil law. It could be criminal law. It could be general policies that we see the governor and the legislature enacting, and John, I appreciate you getting on the horn, and since I’ve got someone from Wake County, Raleigh, right down the street from the North Carolina General Assembly, let’s talk about that. I would think that Wake County, you kind of see things maybe a little bit more quickly than you do the rest of us in the hinterlands, away from the capitol.
John:	Well, that’s probably true. I’ve been here for 25 years, practicing law, and I can say that practicing law in Wake County has always has a very political edge to it. Our judges tend to be more politically astute. They have their finger on the pulse of what’s going on, in terms of how the Legislature is doing things and it’s a tough place to practice law. What we see all the time, here in Wake County, is just the constant push to find some way to carve out some Constitutional protection, so we can get some more people convicted of DWIs. Don’t get me wrong. Judges are being fair, but you understand the pressure. It’s a very difficult subject matter.
Bill:	Well I think it’d be interesting because Raleigh, to us, is a million miles away. When you talk about an appellate case in North Carolina Court of Appeals, or you talk about the Supreme Court in North Carolina, an opinion from Justice whomever, or you talk about opposing counsel being at the Attorney General’s office, it’s this somewhat nebulous, far away type of deal. Heck, you maybe go down the road, downtown Raleigh, and you see them all having lunch together, so I think it’s go to be a little bit more interesting, for lack of better term. You get to know them, a little bit more.
John:	That’s exactly right. As a matter of fact, I was at lunch yesterday, at one of our famous longtime spots in Raleigh, and in walked about half the Court of Appeals, including one of our newest justices, Wendy Melton, who was a classmate of mine at Campbell University.
Bill:	You don’t think about those things. There are elections coming up, and occasionally come down to Charlotte. I don’t know if people realize this, this a good policy discussion, because there’ve been some recent changes to the law in North Carolina, but our Judicial races, at least some of them, not all of them, are political, meaning that some of them have the R or the D, or I guess the I for Independent, next to them. In fact recently, there was a race where it was uncertain which was it was going to go. Let me ask you, that’s a good point. Everyone has a different opinion on this. I’ve gone back and forth myself. What is your view on Judicial elections? Let’s start in District Court, Superior Court, and then Appellate Court.
John:	The unfortunate thing about Judicial elections is you don’t have voters who really understand who the candidates are and what they stand for. It’s a good thing that Judicial elections are supposedly nonpartisan, but …
Bill:	Right
John:	… in practice, that is not always the case. Yes, nonpartisan because you go in. You don’t know who’s associated with what party. There’s good and bad in looking at it two ways. We’ve talked a lot about retention elections in the past, where judges don’t have to run for their office so much, as they’re in, and they have to justify why they should stay. I certainly never want to take the right to vote away from anyone. I think it’s obviously the cornerstone of our Democratic process, and our Republican form of government, that you get to pick your leaders. The general public just does not know what goes on in court, on a day in/day out basis. I would really like to see maybe some type of hybrid system in place, where those who know the judges, IE lawyers, and maybe even the people who’ve had to appear in front of them, that they be given an opportunity to weigh in on that judge’s performance. For example, Superior Court Judge elections, you have Superior Court judges who travel all over the state, not just in Mecklenburg County. Gosh, we’ve got six or eight here in Raleigh. I don’t know how many you have in Mecklenburg County, but they all have their own little district and the only …
Bill:	Go ahead, John.
John:	The only people that …
Bill:	Sorry.  Connectivity Issue.
John:	… are the people in their district. Well, those people probably never get in front of that judge so the truth of it is in judging. Good judge or not so good judge, is how they deal with things, day in and day out, in court, how they treat the people in front of them, and how they apply the law, and how they’re willing to listen to the litigants, not some other party somewhere. That’s been a big topic of discussion with the whole School of Government thing. Maybe there should be some weight given to the people that actually are in front of these judges, and let them be the ones who make the decisions about whether they stay or whether they get replaced by someone.
Bill:	For the record, all the judges that you and I appear in front of are considered the good ones, and the not so good ones are in areas where we’ve never practiced.
John:	That’s right
Bill:	I think you make a good point, because I go back and forth on this. I absolutely believe in the electoral process and the need for the community to speak up on things. I get worried when you have retention elections because that ends up being a, basically, a lifelong appointment, but for something very odd or unusual happening. I also worry that the average voter … I get calls all the time asking me about different judges and their philosophies, and I do my best to explain what I think. Judges are really supposed to be above the partisan fray. Judges aren’t supposed to be making rulings based on what’s popular with the Democratic movement, versus the Republican movement at all.
	In fact, I think the best judges would be ones where it’s hard to say what party they belong to. They’re not interested in party, or necessarily policy, as much as they are about just doing the right thing, and enforcing the law, without bias towards towards one side or the other. That’s when I get concerned about … we had Citizens United,  We deal with these issues for dark money. We have forces outside of North Carolina coming in and putting in millions, literally, potentially millions of dollars in our elections, and it kind of shows the power that you have in the upper level courts, where people from other states are concerned about what happens in North Carolina, because North Carolina has issues like, well, we’re a purple state. We may have districts set for Congress and the Senate and we’ve got all these interesting, complicated social issues, like House Bill 2 HB2 and I think North Carolinians understand what they want. I worry sometimes the infusion of money from outside sources can subvert what I think an average North Carolinian would think would be right in the election process.
	Now, District Court Judges, Superior Court Judges, presently do not have a party monicker. It’s just name and that can be even more difficult for people, because I’ve heard people say, “Well, if there’s a party affiliation,I know more generally what their philosophy is,” and in the past, we’ve done it both ways. It’ll be interesting to see how this develops. I think reasonable minds can differ. I think even you and I may be able to argue both points and say, “I don’t know, it’s a tough decision.” I do think it’s interesting, though, one of the issues I’m always talking about on North Carolina Law Talk is the under-funding of our courts.

	People don’t realize it, that we have a system of government, not just on the federal level, which is United States Government, but the state level, where we have the Executive branch. Governor McCrory is the Governor. That’s the Executive branch. We’ve go the Legislative branch in North Carolina, where you’ve broke it up into two separate Houses. You have the North Carolina House and North Carolina Senate. You have the Judicial branch, and they’re said to be co-equal. Unfortunately, the Legislature is the one that doles out the money. “Here are my tax dollars.” I pay them the money, and then they kind of decide who gets the money, and I am perpetually, I guess, flummoxed, by the lack of proper funding in our courts. John, you have traveled a lot. I travel a lot around the state. You’re kind of the in-trenches law dogs, litigators. What do you see in the court? Where are we going on the cheap, or you just disagree with me and say, “Hey, we got plenty of money, we’re fine.”
John:	No, unfortunately our Judicial system is woefully underfunded. The disturbing trend in the legislature has been to make this kind of a user pay system. You have a lot of people who get the, “You’re the one who’s fingered with violating the law, in some respect, so you’re the one on whose back all the cost is going to be transferred.” I don’t agree with that. I don’t know how you remedy that, other than maybe you have a special fund allocated to the Judicial branch, guaranteed, and it’s reviewed by the Legislature and go, “Well, you need more money.” I will say this, there have been some good improvements in how the Judicial branch is operating. My good friend, Marion Warren, is the head of AOC now, the Administrative offices of the Courts, and he and Justice Mark Martin, Chief Justice Martin, have been looking at a lot of ways to improve things. There are some improvements. Apparently, the computer technology’s been upgraded. Heck, there’s even a time when some districts couldn’t even communicate with each other with computer technology, and that’s being worked out. It’s still underfunded.
	Maybe one other way of fixing this … we talked about money and elections, is take the pressure off of the judges. Set a limit. Give them the money. Use public funds and go, “Here’s your money. You’re running for judge. Here’s what you can spend.” This is kind of funny. I was involved with campus politics when I was at Carolina, a lot, and that’s the way they did it. You got a certain amount of money from the school and that’s all you could spend. That would be a good way of removing some pressure from it. All in all, there are some improvements. There are some counties who aren’t getting the funds that they need. I see it in a lot of the more rural areas, where I go. I’ve been to 20 something counties, now, most of them in the Eastern part of the state. I know that you like to travel around the mountain areas or the Charlotte area. We could be doing a better job. We really could.
Bill:	I worry, because sometimes I feel like our Legislature thinks we’re a cash register or a cash cow. The courts bring in a lot of fees. Now, it’s not justices.  The courts is expensive to run, but gracious … When I first started practicing law, and John, it may be a hyperbole. It may be me, just getting old. I want to say the court costs were, I don’t know, under $40, like $35, somewhere in that range.
John:	I remember when $65.
Bill:	When it went to $65 … That was a big deal, like, “Oh gracious,” from now, we’re pushing $200, just …
John:	That’s for a simple speeding ticket.
Bill:	Right and then that’s not including court costs or if you’re doing a improper equipment or something. You’re dealing with the fees with that and the average person, I don’t know if they get the ticket and they’re just like, “Are you kidding me? Just to take care of the ticket, the court costs and the fines and fees could cost me more than $200.” I think what happens is people think, “Well, I can’t pay for a lawyer on top of all that.” They try to take care of it themselves. Sometimes it works out. Sometimes it doesn’t. I see people in Traffic Court that, they do a great job, and actually are people that … It’s sort of like giving yourself your own haircut or extracting your own tooth. It doesn’t go so well.
	I also worry about the funding for the computers. You brought that up. I know we’re working on it, but we are so far behind on having a centralized database that can be … There are a hundred different counties in North Carolina. There aren’t that many Judicial districts, but there are a hundred different counties. Some of the Judicial districts are larger than others. For example, if you go west of Asheville, so you go to Waynesville, that district … and, they separate between District Court, Superior Court, and the different elected positions, but that Prosecutorial district, maybe that’s the best way to put it, goes from Waynesville to Georgia, goes to the edge of far western North Carolina, Cherokee County, in the mountains. Similarly in the Eastern part of the state, up towards where you’re from. You’re in, obviously, it’s Roanoke Rapids?
John:	Roanoke Rapids
Bill:	That northeastern part of the state, Lord that’s a big district, as well. You’ve got Pasquotank. Is it Persimmons? You know all the counties.
John:	Persimmon is a fruit Bill, Pasquotank …
Bill:	I always tease you about that, sorry.
John:	Camden, Pasquotank. I’m trying to think out loud, but all the counties, Dare County, there’s about 5 counties in 1 district t
Bill:	Man, one time we had the Judicial district that went from the edge of Thomasville, which was Lexington Davidson County, across the North Side of Mecklenburg County, so it included Iredell County and then Iredell included Alexander County and then it also included right out to the edge of the mountain, so it went from the top center portion of the state. I hope out Legislature looks at these different issues, maybe some consolidation of Judicial districts. It costs a lot to … as pretty as Marshall, North Carolina is, I’m not picking on them. They’ve got one of the prettiest courthouses in the state. It’s kind of expensive to keep that all up. The cost of court, if you ever look at the cost bill, I think people are surprised it goes to some retirement funds for the law enforcement. Some employees are county employees. Some employees are employees of the state, and it’s complicated. I think it’s fair to say, and you tell me if you disagree, that our courts are underfunded and a Legislature doesn’t always treat them like a coequal branch of the government.
John:	I think you’re dead on in that assessment. When it comes time for the budget, they’ve all got their hands out, but if we’re going to pour money into a very important function of law enforcement, which admittedly we have to have in a civilized society, then we need to be putting the same amount of money into the administration of the law, what happens after the law is allegedly violated and enforced, when the law is actually carried out in court. We need to find a way to work through all these idiosyncrasies. We need to find a way to streamline a few things, not to the detriment of people charged with crimes, but in an effort to make it a very user friendly system. We need to get the pressure of politics out of the Judicial system, which is very difficult. One way of starting with that, get it to the point where there are dedicated funds.
	You’re not going to get below X amount. There’s nothing a legislator can do about it. You could even consider a Constitutional amendment. Go ahead and put it in the North Carolina constitution, that the Legislature shall fund and fund it to the extent, of recommendations by the Chief Justice of whomever, so that these implementations can be carried out.
Bill:	One of the other things, I think, is to make sure you get the best and brightest on the benches. Pay a salary commensurate with the level of importance of the position.
John:	Oh, absolutely… You and I both joked if they would double the salary, we’d probably be judges, ourselves.
Bill:	Assuming we could get elected.
John:	Assuming we’d get elected, right.
Bill:	I always like to tell people, “I’m a defense lawyer, but I always think that a good lawyer could take either side.” I’ve always thought that if I won the lottery, I could easily prosecute a case. I’d be more than willing to do that. I think you probably feel the same way, that we have jobs. We have roles, but that doesn’t mean we don’t have … We’re members of society and don’t have views on things I think there’re some things that maybe as defense lawyers, we may be a little tougher on.
John:	The trend, really I’ve seen, you get lawyers who’ve been defense lawyers and they get on the bench, and they tend to be a little tougher than other folks. I don’t say that’s good or bad, but as lawyers we have to be subjective, what side we play. Judges should only have one side to play, and that’s the side of truth and justice. What right thing to do? What does the law require? Yes, you know, as defense lawyers, we have to play an unpopular role. Nobody likes defense lawyers. We’re always looking for an angle “to get someone out.” The angles that people talk about, these loop holes that you hear about, are really just bedrock Constitutional principles and rights.  We’re not only the defenders of individuals, we are in a sense … We’re defenders of the system, of the purposes of the system, to make sure it works like it’s supposed to work for everyone, not just one side.
Bill:	Well, I like to say, I’m so conservative that I believe the government needs to be held to the same standards as the rest of us. I’m a true believer in the system. I believe in the jury system. I don’t like the fact that we’ve taken the power away from the jury, on civil cases. I think what’s good for the goose is good for the gander. Well, John I really appreciate your gift of time. I don’t know if we solved any of the world’s issues, but it does bring up some points. People have been involved in the system for … Gosh, you and I are pushing, collectively, almost 50 years of practicing law. I think I just started my 25th year and you may have just started your 26th year.
John:	26th.
Bill:	The system isn’t as bad as some think. It’s not as good as others suppose it may be. It’s something, a work in progress. I know I donate my time to the practice of law. I’m more than willing to go to high schools and different schools, churches, and talk about the courts. I assume you do the same thing. If people want to reach you and have you discuss how court works, or what to expect, you willing to do that?
John:	Absolutely, I always enjoy opportunity to educate folks on the legal system. It is the, in my view, the most important branch of our government, because it really is what people come and interface with what decisions are being made, not just on a policy level, but on a very individual level. We all have possibilities as attorneys to educate the public, to give of our time, to tell them the ins and outs, and what you should know, and kind of dispel some myths about how things work, and I’m always available to do that, looking for-
Bill:	Well, in our system of society, where we live with one another and have disputes, this is where disputes are settled, the courts. John, what’s your e-mail address, if someone has a question or would like you to speak somewhere?
John:	Sure, the e-mail address is john@fanneylaw.com.
Bill:	If any of our viewers have topics of discussion, or general questions … We will not answer a specific legal inquiry on North Carolina Law Talk, but we will talk policy. Some would say we talk policy to death. You can e-mail me at bill@powmac.com Thanks again, John, and thanks again for watching us on yet another episode of North Carolina Law Talk.
John:	Thank you, Bill.