Category Archives: Judges

NC legal system — invest or divest?

In the past year the North Carolina legislature enacted cuts or reductions (or proposed to) in the following, which might be characterized as the infrastructure of North Carolina’s legal system.

The number of trial court judges (emergency judges)

               The number of appellate judges

The budget (therefore staff) of the Department of Justice

Funds (therefore staff) for Legal Aid of North Carolina (formerly taken from filing fees)

Funds for the UNC Law School

Dues (paid by lawyers) that fund the North Carolina State Bar.

In periods leading to this year, North Carolina’s population has grown and its economy has grown. Commerce has picked up and unemployment has dropped. The State has pursued a policy of promoting trade and business investment in North Carolina by companies outside the state and outside the United States.

Unless North Carolina’s legal system was overfunded in the past, the conclusion might be reached that more, not fewer, resources are needed to maintain what we’ve got.

The American justice system is credited as a core element of the economic and cultural success of the United States. Enforcement of obligations (commercial and other) —predictably, impartially, efficiently and effectively — is a big part of what made America great.

And, actually, we are at a time when improvements are needed.

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Window into NC lawyers in the 19th Century, Kemp P. Battle’s memories

Kemp Plummer Battle

Kemp Plummer Battle

At the second-hand bookstore in the Raleigh-Durham airport the other day, I came across a copy of Memories of an Old-Time Tar Heel, the compendium of Kemp Plummer Battle’s memories and anecdotes. Himself a lawyer (also a railroad president, university president, Edgecombe County farmer, and more), so were his father, William Horn Battle, and others in his family.

So Battle’s memories include many a lawyer story. Those stories are windows into the North Carolina Bar in the mid-nineteenth century. Below is a good one that shows lawyers and also Battle’s densely-packed style.

Judge Thomas Ruffin, the younger, had probably the ability of his father. In his younger days, he was not a hard student of legal principles, although he gave his whole mind to the trial of his cases. Indeed, so eager was he for victory that there were accusations of sharp practice. But I personally had no evidence of this. On the contrary, when thrown intimately with him for a day or two once, I was struck by his high-toned principles. I remarked to one of the best of men, his law partner Judge Dillard, “Ruffin is a lawyer who can be relied on for utter fairness.” Dillard smilingly said, “He is a rascal like the rest of us.” He meant only that in the hot excitement of trials he might take positions which non-lawyers might think not strictly fair. But it should be remembered that lawyers giving their minds to the cause of their clients, studying mainly the arguments for their side, necessarily become biased. It is impossible for them to act as impartial judges. This is illustrated by what Judge James C. MacRae told me about a trial over which he presided. A certain lawyer made a speech advocating a construction of the law which did not meet the judge’s approval and he said, “Surely you do not claim that to the be the law?” “Well, Judge, I can’t say that I do, but I did not know how it would strike your Honor.”

Come to think of it, this practice may have survived the 19th Century.

Henry Frye’s portrait at Supreme Court alongside Thomas Ruffin’s

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Brooks Pierce photograph of Henry Frye

Henry Frye’s portrait was unveiled at the North Carolina Supreme Court last Tuesday afternoon. It will be hung in the courtroom, as portraits of every other North Carolina Chief Justice have been since Chief Justice Ruffin’s was put up in 1858.

Chief Justice Thomas Ruffin was among the most distinguished North Carolinians of his day. He was a jurist of the first rank. Authorities such as Chief Justice William Howard Taft and Justice Felix Frankfurter ranked him as a pioneer in adapting the English common law to the quasi-frontier conditions in the United States.His decisions were followed more than any others by the southern and western courts. Roscoe Pound rated him one of the ten foremost jurists in the United States.

Mathew Brady photograph of Thomas Ruffin

Mathew Brady photograph of Thomas Ruffin

Today though, Justice Ruffin is most often remembered for his opinion in State v. Mann (1829), on the incidents of slavery. In short, he concluded that a slaveholder was not liable for abusing an enslaved person and was within his rights to beat a slave savagely without cause. Contemporary scholars have concluded that Ruffin, himself a slaveholder and at one time a slave trader, was actively seeking to protect the institution of slavery in State v. Mann and other opinions, and was, in his personal life, a cruel slave master.

Justice Ruffin’s is the earliest portrait in the courtroom. Justice Frye’s will become the latest.

Speakers last Tuesday (Chief Justice Martin, Governor Hunt, US Court of Appeals Judge Wynn, and Brooks Pierce partner, Jim Williams), celebrated Chief Justice Frye as one of the most distinguished North Carolinians of his day, and also a first rank jurist.

Henry Frye is North Carolina’s first African American Chief Justice. He was the first African American member elected to the North Carolina General Assembly in the 20th Century. He is a champion of voting rights for African Americans and disenfranchised people; and Tuesday’s speakers universally affirmed that, in his person, Henry Frye is a gentle man.

Esse quam videri. Ruffin and Frye.

 

Supreme Court of North Carolina

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Partisan election of judges has led to assassination plots, cannibals & pirates in NC courts

We have gotten past the elections now, if not their consequences. So this may be a good time for me to say that I believe judges should be selected on the basis of merit and competence rather than elected, reflecting membership in a political party or adherence to a political ideology.

Albion Tourgee

Albion Tourgee

The vast preponderance of decisions that judges make – about contracts, torts, crimes, etc. – have nothing at all to do with politics. Justice flows from judges who are independent, unbiased, able and wise – and appear to be so.

I like seeing judges come from all quarters and without labels. And, on the other hand, I am able to identify idiots in every political party. (In fact, this is a talent of mine, and I can do it on very short notice.)

Several years ago, I visited my thoughts about this on the Greensboro Bar Association, in the context of 19th Century Greensboro lawyer and judge Albion Winegar Tourgée and the judicial partisanship in his day. What I said follows, changed only a little.

Judge Tourgée, was the carpetbagger, radical and crusader for racial justice who moved to Greensboro immediately after the Civil War. Ultimately, Greensboro citizens ostracized, threatened and drove him from town. For a time though, Tourgée, the Republican Party and their allies enjoyed political sway here, and during that period Tourgée was elected to the bench.

Judge Tourgée was roundly despised by his political opponents. In the extremely partisan election campaign for his seat, one newspaper characterized Tourgée as “a shallow-brained revengeful yankee.” Another opined that he was “the meanest looking man it has ever been our misfortune to meet.” Not content with that general observation, it went on to say

The pirate; the cutthroat; the despicable, mean, cowardly, crawling, sneaking villain have been portrayed by nature … in every lineament of his countenance. The mark of infamy is stamped indelibly on his brow in the shape of a large protuberance that strikes the beholder with ineffable disgust.

Still others saw in him “a cannibal, a gorilla, the wandering Jew, a Ku Klux or Anti-Christ” and charged (falsely) that he had served time in a penitentiary.

And yet, he was elected to the bench.

Tourgée’s opponents did not desist in their opposition to him after the election. To the contrary, a plot was hatched to assassinate him in his Guilford County courtroom as he presided over criminal proceedings against members of the KKK. The plot was not consummated, but surely a planned assassination betokens an extreme of partisanship.

Despite all the invective, even Tourgée’s opponents at the bar credited him as an able, fair and, most amazingly of all, an impartial judge.

Interestingly, in Tourgée’s time politicians divided up along generally the same lines as they do today; except, in Tourgée’s time it was the Republicans and their Whiggish allies who advocated for an activist government, loose interpretation of the Constitution and levying taxes as needed to support their activist program. Democrats on the other hand, decried government participation in commerce, supported strict constructionism and abominated taxes.

Clearly, deeper wisdom has since come to both parties and they have re-wrought their ideologies accordingly. But it makes you wonder about the merits of partisanship as a guide to enduring truth.

Now, I am not suggesting that partisan judicial elections lead to assassination plots or pirates on the bench. But … that is exactly what did happen once upon a time in old Guilford County.

Just saying . . .

Repose Not the Destiny of Lawyers

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Oliver Wendell Holmes, Jr.

My partner, Mark Prak, first made me aware of the following, which comes from “The Path of Law,” an article Oliver Wendell Holmes, Jr. published in the Harvard Law Review in 1897. Mark and I have had many occasions to observe that this is the prime fundament underlying law practice  management:

The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. … And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is an illusion, and repose is not the destiny of man.

I might add a comment but, already, I see the error of that.

Partisan Election of Judges

Partisan election of judges now and then. By me. No charge.

By “the President” they mean “of the Greensboro Bar Association.” Which I was. In 2011.