by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last spring, Rep. Justin Burr, R-Stanly, filed a bill that would establish new judicial and prosecutorial districts throughout the state and specify the number of judges and prosecutors for each (House Bill 717, Revise Judicial Districts). While the bill didn’t come to a vote during the regular session, Rep. Burr has indicated that he will try to have it considered during this week’s special session. Commenting on the bill in a Carolina Journal piece last month, Becki Gray offered, “Kudos to Rep. Burr … for bringing the issue forward,” but she also warned that, “[C]hanges to the judicial system that affect every North Carolinian deserve careful thought, advice from experts, thorough review, tough scrutiny, and thorough debate.” Becki is surely right on both points.
Regarding the need for comprehensive judicial and prosecutorial redistricting, Rep. Burr may well be correct. For more than 50 years, the legislature has been making piecemeal, ad-hoc adjustments to existing judicial and prosecutorial districts in an attempt to keep up with legal, demographic, and political changes, but, despite those efforts, imbalances still exist in terms of resource allocation and access to justice. However, there are several reasons why, instead of attempting to redraw judicial and prosecutorial districts itself the way it does with legislative districts, the General Assembly would be well-advised to assign the task to a nonpartisan commission.
Unlike legislative redistricting, where the standards to be applied are at least clear in principle — i.e., “one person one vote,” compliance with federal voting rights laws, etc. — the standards for judicial and prosecutorial redistricting have never been clearly articulated. Before such redistricting begins, therefore, there needs to be some sort of formal consideration of the principles that are to guide the effort and of the standards that are to be met.
In addition, judicial and prosecutorial redistricting is a technically challenging problem. Unlike legislative redistricting, it’s not simply a matter of ensuring that each district has approximately the same number of people (and a racial breakdown that will meet federal standards). Instead, it requires detailed projections of future caseloads across districts, in terms of numbers and types of cases, and a detailed analysis of how best to allocate judicial and prosecutorial resources to ensure that North Carolinians have equal access to an efficient court system.
Moreover, accusations of racial and political gerrymandering have already been made regarding H.B. 717. It’s all too easy to imagine these leading to the same kind of controversy and litigation that has followed each of the General Assembly’s recent attempts at redrawing legislative districts, with all of the attendant costs, disruption, and bad publicity. As the John Locke Foundation has frequently pointed out, all of that could be avoided if the task of redistricting were assigned to a nonpartisan commission, but neither Democrats nor Republicans have been willing to give up the opportunity to engage in political gerrymandering when in power. Judicial and prosecutorial districts, however, are much less important politically, which ought to make a nonpartisan commission more palatable.
Finally, there already exists a nonpartisan commission that would be ideally situated to undertake the task of judicial and prosecutorial redistricting — the North Carolina Courts Commission. When it created the commission in 1979, the General Assembly declared that:
It shall be the duty of the Commission to make continuing studies of the structure, organization, jurisdiction, procedures and personnel of the Judicial Department and of the General Court of Justice and to make recommendations to the General Assembly for such changes therein as will facilitate the administration of justice.
In fulfilling that duty, in recent years the Commission has been preparing to undertake the task of redistricting. In 2015, James Drennan from the UNC School of Government made a presentation to the commission about the reconfiguration of judicial and prosecutorial districts, and, last year, Brad Fowler, who is a planning and organizational development officer with the Administrative Office of the Courts, presented information on criteria for consideration by the Commission in any future effort to study the reorganization of judicial and prosecutorial districts. All of which suggests that the Courts Commission is ready and willing to undertake the task.
Curiously, in June the following provision was added to H.B. 717:
SECTION 4. The Administrative Office of the Courts, the Courts Commission, and the Legislative Services Commission shall study and determine quantifiable workload assessments, by county, for prosecutorial, district, and superior courts to assist the General Assembly in dividing the State into a convenient number of districts and divisions for the administration of the judicial branch. The Courts Commission shall make a report to the 2019 Regular Session of the General Assembly on or before December 15, 2018, with any recommendations of the study.
While this provision is hard to reconcile with the preceding sections that provide detailed definitions of the new districts and divisions, it nevertheless sounds like the way to go.
The process of redistricting has gone through the House committee process with much less fanfare and on a much faster timetable than it should have. These changes could affect every North Carolinian’s access to justice for decades and deserve a more deliberative process.
Why not expand Section 4 of the bill to give the Courts Commission clear instructions about how to proceed and scrap the rest of the legislation?