Court sessions canceled because number of judges reduced
Published August 4, 2017
by Melissa Boughton, NC Policy Watch, August 3, 2017.
The General Assembly’s recent budget decision to slash the state’s corps of emergency judges has started to take effect.
According to the latest lists released by the Administrative Office of the Courts (AOC), there are now only 10 active emergency superior court judges and 25 emergency district court judges. Prior to the July 1 effective date of the Fiscal Year 2018 budget, there were 42 emergency superior court judges and 72 emergency district court judges. The new list reflects an overall reduction of 69.2%.
According to emails obtained by NC Policy Watch, the cuts were causing concerns in the court system even days after the budget was passed.
“Unfortunately, this is what we were concerned would happen,” Judge James T. Hill wrote in an email to Rep. Pat Hurley (R-Randolph). “As you see, effective yesterday afternoon, AOC recalled the Emergency Commission for next week for Asheboro Family Court and ‘cancelled’ the session from 7/11/17 forward.”
Hill goes on to describe the conundrums he is faced with because of the cancellation and adds “My understanding is that this is going on all across the State.”
“I hope there will be solutions to these concerns because they are real,” she wrote.
AOC spokeswoman Sharon Gladwell did not immediately respond to a request asking how many court sessions have been cancelled or rescheduled since the changes affecting the use of emergency judges.
There is no limit to the number of inactive emergency judges, and any emergency judge who has been designated to hear complex business cases was not affected by the budget.
David Hoke, assistant director of the AOC, wrote a memo to superior and district court judges explaining how the active list of emergency judges was chosen.
“The criteria used to determine which emergency judges will be placed on the active lists and available for assignment include: the handling of Rule 2.1 cases and other exceptional matters, a judge’s experience and subject matter expertise, statewide geographic distribution of judges, unique needs of specific judicial districts, and recommendations by the Chief District Court and Senior Resident Judges,” the memo states.
The list appears, however, to be somewhat arbitrary, as Hoke notes in the memo that it could change at any time based on the scheduling needs of the district and superior courts.
The budget specifies that an emergency judge may be used only in the following circumstances: death of a sitting judge; disability of a sitting judge; recall to active military service of a sitting judge; retirement or removal of a sitting judge; and existence of a court case-management emergency.
The definition of “disability” mimics the basic framework of the Family and Medical Leave Act, which includes care for a new child and recovery from a serious illness or injury, according to the memo.
AOC Director Marion Warren decides what is and is not a “court case-management emergency” if a judicial district is understaffed by the AOC workload formula and there is a case backlog.
“While every effort will be made to limit court disruption, it is possible that future sessions of court will be cancelled or rescheduled due to shortages of available judges,” Hoke wrote in the memo. “With the Chief Justice’s approval, my office can move emergency judges between the active and inactive lists in order to help meet our district and superior court scheduling needs. Emergency judges who are commissioned into service will receive timely notice of their assignments, and their active status will remain in place for the duration of their assignments.”
Nancy Gordon, who has been an emergency judge since 2015 but who did not make the active list, said she feared the reduction would have a negative impact on the citizens of North Carolina.
“We need more access to the courts, not less,” she said.
Gordon wrote a letter to Warren, Hoke and State Supreme Court Chief Justice Mark Martin asking to be on the active list. She said she has worked at least a couple days every month for the last 12 months, “so somebody needed me.”
She also questioned who was behind the budget cut provision and said it seemed to come out of nowhere.
Who’s behind the cut?
It remains unclear who exactly asked for the reduction in emergency judges but it appears from emails that Sen. Shirley Randleman (R-Stokes, Surry, Wilkes) is behind the budget provision.
In one email, in which Warren is cc’d, she directs Kristine Leggett, of the General Assembly Fiscal Research team, to “modify the emergency judge provision to add an allowance, in an emergency situation …”
The emails obtained by NC Policy Watch date back to April 6 with AOC legislative liaison Mildred Spearman first telling Hoke and another employee about a request she received.
“I have a request for the number of emergency judges with active or pending cases at this time. Can you let me know?,” she asked. “This probably is related to the bill seeking to eliminate emergency judges (S617).”
Randleman introduced Senate Bill 617, which would have eliminated emergency judges altogether.
The same day Spearman sent her email, AOC lobbyist Tom Murray sent a request to Warren from Brent Woodcox, special counsel to the General Assembly. Woodcox asked the same question that Spearman emailed about and the email was sent on behalf of Sen. Tommy Tucker (R-Union), though he is not listed as a sponsor to SB617.
Warren responded that he was “already on it.”
At the time, there were nine emergency judges assigned to pending cases. Collectively, those judges were handling about 98 cases, including 90 Rule 2.1 (complex) cases, five motions for appropriate relief, two business court cases and one homicide.
There are a number of emails between members of the AOC staff and Leggett regarding the process of using emergency judges and the cost.
The total budget (legal services and travel) for emergency judges each year for the past five years, according to the AOC, was: $564,218.97 in 2012; $582,405.28 in 2013; $592,170.73 in 2014; $802,341.26 in 2015 and $1,000,830.52 in 2016.
When Leggett asked about the increase in spending, Spearman told her that the FY 2015-16 amounts should not be viewed as an increase, given that expenditures for emergency judges in FY 2008-09 were approximately $1.76 million.
“Because of severe budget cuts in the intervening years, NCAOC made a concentrated effort to limit the use of emergency judges despite the negative impact on court operations,” she wrote. “Now that there is some light at the end of the tunnel, NCAOC has resumed the use of emergency judges to improve efficiency and to meet emergent needs.
“As you know, the Chief Justice daily commissions emergency judges as needed. Emergency district court judges are vital to the large volume of cases handled in district courts, where they have reduced backlogs statewide, including DWI backlogs in Guilford and Johnston Counties, as well as backlogs of domestic cases in Wake and Henderson Counties. Emergency superior court judges typically handle 2.1 cases that require special time, attention and expertise. They also handle conflict cases, which often need a judge who is not regularly assigned to a particular county or courthouse so as to avoid even an appearance of favoritism or special treatment. Finally, emergency judges fill in gaps created by illness, maternity leave, military leave, vacancy or other reasons that would affect the court’s ability to operate as required.”
Leggett asked Spearman about how a retired judge becomes an emergency judge, noting that there was some confusion about it. She also asked about how much money the AOC spent on continuing education for emergency judges, and specifically how much was spent on University of North Carolina School of Government training.
The UNC SOG holds an annual judges’ conference to provide continuing judicial education.
Travel expenses associated with attendance at the judicial conferences for FY 2015-16 were approximately $21,420 for emergency superior court judges and $55,083 for emergency district court judges, according to the AOC.
Judges’ reactions
Judge Jackie Lee, of Harnett, Johnston and Lee counties, was tasked with putting together a list of implications of SB617 but a number of judges also emailed the AOC with concerns about eliminating or reducing emergency judges.
Like Gordon, a few were worried about access to the courts.
“Due to the size of our county, it is not uncommon for potential conflicts to arise,” Judge Bill Tucker wrote in an email. “Although every effort is made to avoid conflicts, they sometimes do arise when concern is expressed by parties that there could be the appearance of a conflict. Emergency judges have played a very important part in handling such matters.”
Tucker, who presides in Anson and Richmond counties, described two pending cases in which emergency judges were called upon numerous times because of the ongoing nature of family law litigation.
“Emergency judges in these types of cases have been crucial to a cessation of ongoing litigation, because it is possible to arrange that the same judge hear ongoing and often related issues,” he said.
In a second email, he wrote that the proposed amendments/exceptions to SB 617 were the same considerations addressed by AOC when an emergency judge is requested.
“No district is seeking coverage for benign reasons,” he wrote. “Many districts are under the number of judges necessary for their caseloads. Others require coverage for many reasons for months at a time. An emergency judge was required in this district for three months due to election of a district judge to the superior court.”
Judge Wayne Michael, of Davidson and Davie counties wrote that emergency judges were needed for vacancies, for conflict cases and for other special situations. Resolution of cases, he wrote, would be delayed without emergency judges.
Several judges wrote about their concerns about cancelled court and the negative impact on litigants.
Other judges expressed concern about the lack of funding for continuing education.
Chief District Court Judge Regan A. Miller, of Mecklenburg County, asked if the provision would ultimately affect attendance at SOG special topics trainings for judges.
“I have always believed that continuing education is a necessity to maintaining our effectiveness on the bench,” he wrote in an email. “It is even mandated as part of our professional ethics. I am dismayed that the statutory restrictions on the use of emergency judges did not acknowledge this requirement.”
Judge Phil Howerton, who has been an emergency judge holding court in Gaston County for the last two years, said in a phone interview that he also was concerned about not being reimbursed for continuing education.
“It would cost me a lot of money to go to the judges conferences,” he said.
Howerton wanted to be an active emergency judge but was placed on the inactive list. He said the move has forced him to consider quitting altogether. He also emailed the AOC about the situation.
“The larger issue – and I don’t think anyone knows what’s going to happen – is the AOC going to be able to fill the vacancies across the state with 25 active retired emergency judges on the list?,” he asked during the phone interview.
Judge Joseph Turner also wanted to be on the active emergency judge list.
“When I retired I thought I would be able to hold court periodically and now I’m told I cannot,” he said during a phone interview.
He, like Howerton, questions why the legislature has been antagonizing the judiciary this session.
“It’s waging a war that doesn’t need to be waged,” Turner said. “What judges do is so apolitical.”
He currently runs a mediation practice part-time in Greensboro. He said the reduction in emergency judges can have an effect on North Carolinians in different ways and that he would expect elected leaders to have “a little more understanding of the system than what’s been shown.”
“It’s taking its toll on the judiciary,” he said, adding, “It does make you feel less valued.”
