REMARKS OF

CHIEF JUSTICE BURLEY B. MITCHELL, JR.

SUPREME COURT OF NORTH CAROLINA

to the

NORTH CAROLINA COURTS COMMISSION

December 12, 1997

 

 

THANK YOU FOR INVITING ME TO BE HERE WITH YOU TODAY TO SHARE WITH YOU AN UPDATE ON OUR COURTS. WHEN I BECAME CHIEF JUSTICE IN 1995, I SAID I WOULD CONCENTRATE ON BEING A SPOKESPERSON FOR THE COURTS AND THE LEGAL PROFESSION. I HAVE TRIED TO DO THIS DILIGENTLY IN MY STATE OF THE JUDICIARY SPEECHES TO THE GENERAL ASSEMBLY AND IN SPEECHES AROUND THE STATE . IF THE COURTS ARE TO OPERATE EFFICIENTLY IN THE FACE OF INCREASING CASELOADS, AND IF THE COURTS ARE TO ACQUIRE THE RESOURCES WE MUST HAVE, WE WILL NEED YOUR HELP.

FOR THE PAST THREE YEARS, I HAVE MADE IT MY NUMBER ONE MISSION TO TELL PEOPLE ALL ACROSS THE STATE EXACTLY HOW WELL OUR COURTS ARE WORKING AND WHERE THEY ARE NOT WORKING. I WANT TO BELIEVE THAT IF THE PEOPLE AND THE LEGISLATURE KNOW THE TRUTH ABOUT THEIR COURTS, THEY WILL HELP US SOLVE OUR PROBLEMS.

WE HAVE JUST COME OUT OF A LEGISLATIVE SESSION WHERE WE WERE ONLY ABLE TO GET APPROVAL FOR 6 NEW DISTRICT COURT JUDGES AND NO NEW SUPERIOR COURT JUDGES. WE WERE, HOWEVER, ENCOURAGED BY THE FACT THAT WE WERE GIVEN MONEY FOR A START ON A TECHNOLOGICAL RESERVE FOR A TRUE COMPUTER SYSTEM FOR THE COURTS. THIS WILL ENABLE US TO BEGIN THE PLANNING PROCESS FOR SUCH A SYSTEM FOR OUR COURTS. WE ARE GRATEFUL THAT THE LEGISLATURE ALSO ADDED 100 NEW DEPUTY CLERKS, 54 NEW ASSISTANT DISTRICT ATTORNEYS, AND 60 VICTIM WITNESS ASSISTANTS. BUT WE SIMPLY CANNOT CONTINUE TO KEEP OUR HEAD ABOVE WATER WITH OCCASIONAL, ONE-TIME INFUSIONS OF NEW PERSONNEL.

IT SEEMS THAT EACH WEEK WE ARE CONFRONTED WITH A NEW "HOT" ISSUE AND ASKED TO MAKE IT OUR FIRST PRIORITY. ONE WEEK IT IS DOMESTIC VIOLENCE; THE NEXT WEEK IT IS REPEAT DWI OFFENDERS OR TERMINATION OF PARENTAL RIGHTS, OR EQUITABLE DISTRIBUTION AND CHILD CUSTODY. IN EACH INSTANCE, THE CONSTANT REFRAIN IS "THE COURTS NEED TO HEAR THESE CASES FIRST" OR "WE SHOULD SCHEDULE MORE COURT" TO ADDRESS THIS WEEKíS POLITICAL HOT TOPIC. I SIMPLY CANNOT KEEP TELLING OUR COURT OFFICIALS TO DO MORE WITHOUT ADDITIONAL JUDGES, COURT REPORTERS, COURTROOM CLERKS, AND OTHER NEEDED PERSONNEL. WE ARE FUNCTIONING ABOUT AS WELL AS WE CAN, GIVEN OUR TREMENDOUS LACK OF PERSONNEL AND OUTDATED TECHNOLOGY.

I WILL CONTINUE TO REMIND THE PUBLIC AND THE LEGISLATURE THAT WE ONLY HAVE ABOUT 45 EMERGENCY SUPERIOR AND DISTRICT COURT JUDGES, AND WE SCHEDULE ALL OF THEM TO HOLD COURT ALMOST EVERY WEEK. I WILL ALSO CONTINUE TO POINT OUT THAT WE HAVE HAD TO CANCEL SEVERAL SESSIONS OF COURT RECENTLY BECAUSE OF A LACK OF COURT REPORTERS. IN SHORT, WE HAVE REACHED OUR LIMITS.

FRANKLY, OUR REQUESTED BUDGET INCREASE THIS YEAR WAS SUBSTANTIAL, BUT THERE WAS A REASON. NORTH CAROLINA HAS HAD A HISTORY IN RECENT YEARS OF UNDER-FUNDING THE COURT SYSTEM WHILE IMPOSING NEW DUTIES ON THE COURTS. AS CASELOADS INCREASE, WE SIMPLY CANNOT TACKLE THESE NEW DUTIES WITHOUT THE RESOURCES AND INFRA-STRUCTURE NEEDED TO DO THE JOB. IF WE WERE TO BRING THE CASELOADS IMPOSED ON OUR COURT OFFICIALS TODAY DOWN TO THE LEVELS OF 13-14 YEARS AGO, WE WOULD HAVE TO IMMEDIATELY ADD 492 NEW DEPUTY CLERKS OF SUPERIOR COURT, 79 NEW DISTRICT COURT JUDGES, 21 NEW SUPERIOR COURT JUDGES, 121 NEW ASSISTANT DISTRICT ATTORNEYS AND 329 NEW MAGISTRATES. WITHOUT SUCH DRAMATIC INCREASES, WE WILL NOT BE ABLE TO PERFORM THE FUNCTIONS WE HAVE ALWAYS UNDERTAKEN, MUCH LESS UNDERTAKE THE NEW DUTIES WHICH HAVE BEEN THRUST UPON US BY THE LEGISLATURE IN THE PAST DECADE. SIMPLY PUT, ALL OF THE LEGISLATION PASSED IN RECENT YEARS TO GET TOUGH WITH DRUNK DRIVERS, TO CRACK DOWN ON DEADBEAT PARENTS, TO ADDRESS THE PROBLEM OF DOMESTIC VIOLENCE, TO PROVIDE EXPANDED RIGHTS FOR VICTIMS OF CRIME AND TO DEAL WITH MANY OTHER SOCIAL ISSUES IS JUST ONE MORE STRING OF HOLLOW POLITICAL PROMISES AND POSTURING. NO ACTION REALLY CAN BE TAKEN UNLESS THE NEEDS OF THE JUDICIAL BRANCH FOR PERSONNEL AND TECHNOLOGY ARE MET. I AM NOT PREPARED TO JOIN ANY GROUP OR INDIVIDUAL IN PRETENDING OTHERWISE.

EVERYONE WHO HAS LOOKED INTO THE MATTER AGREES THAT THE COURT SYSTEM IS AT LEAST 15 YEARS BEHIND IN INFORMATION TECHNOLOGY, AND WE AGREE. THIS YEAR THE GENERAL ASSEMBLY APPROPRIATED $3.6 MILLION FOR THE REPLACEMENT OF OUTDATED EQUIPMENT AND $4.3 MILLION TO A TECHNOLOGY RESERVE. THIS IS A WONDERFUL START, BUT WE HOPE IT IS ONLY THE FIRST INSTALLMENT ON THE $14.9 MILLION WE WILL NEED TO CREATE A STATEWIDE COURT COMPUTER SYSTEM. THE GENERAL ASSEMBLY ALSO GAVE US 15 TECHNICAL SUPPORT PEOPLE, AND WE ARE GRATEFUL, BUT WE ASKED FOR AND WILL NEED AT LEAST 46 TO CARRY OUT THIS PROJECT.

LET ME MAKE IT CLEAR THAT WE ARE NOT ASKING FOR ADVANCED OR CUTTING EDGE TECHNOLOGY IN OUR INFORMATION SYSTEMS SUCH AS THAT USED BY ENGINEERS OR SCIENTISTS. WHAT WE ARE ASKING FOR IS SIMPLE TECHNOLOGY THAT EVERY CITIZEN HAS BEEN USING IN OTHER PURSUITS FOR DECADES. WE ARE SEEKING THINGS AS SIMPLE AS BAR CODES LIKE THOSE THE GROCERY STORE USES SO THAT WE CAN KEEP TRACK OF OUR CASE FILES MORE EASILY. OUR MOST COMPLEX SYSTEMS WOULD INVOLVE TECHNOLOGY LITTLE MORE ADVANCED THAN THE WORD PROCESSING AND SPREAD SHEET COMPUTER PROGRAMS USED BY BANKS FOR YEARS.

ONE PROBLEM WE FACE WHEN WE ASK FOR COMPUTER TECHNOLOGY IS THAT, JUST AS WITH PERSONNEL, WE TEND TO GET ONE TIME BURSTS OF MONEY. FOR EXAMPLE, THE LEGISLATURE HAS GIVEN US MONEY TO PUT SOME COMPUTERS IN THE HANDS OF SOME OF OUR COURT OFFICIALS. HOWEVER, WE HAVE NOT BEEN PROVIDED FUNDS TO MAINTAIN THOSE COMPUTERS, TO UPDATE THE SOFTWARE WHEN NEEDED, OR TO TRAIN THE USERS. WE MUST HAVE A STEADY AND DEPENDABLE SUPPLY OF RESOURCES IF WE ARE TO ADEQUATELY SUPPORT LOCAL COURTS. WE ARE GRATEFUL FOR WHAT WE HAVE RECEIVED, BUT WE CANNOT MAINTAIN AN EFFICIENT COURT SYSTEM WHICH IS ABLE TO KEEP UP WITH A GROWING CASELOAD IF OUR FUNDING IS A HIT OR MISS PROPOSITION EACH YEAR.

LIKE ANY ENTERPRISE, WE NEED A CONSISTENT, DEPENDABLE AND RECURRING SOURCE OF FUNDING. LET ME GIVE YOU AN EXAMPLE. SEVERAL YEARS AGO OUR OLD MAINFRAME COMPUTER WAS OPERATING AT NEAR CAPACITY AND WE WERE FACING IMMINENT OVERLOAD AND SHUTDOWN. IT APPEARED THAT THE COST TO UPGRADE TO THE NEXT LEVEL WOULD BE $6.1 MILLION. WE ASKED AND THE LEGISLATURE APPROPRIATED $1.9 MILLION PER YEAR FOR 3 SUCCESSIVE YEARS FOR A TOTAL OF $5.7 MILLION. BY WISELY GIVING US NONREVERTING MONEY THAT WE DID NOT HAVE TO SPEND OR LOSE WITHIN A YEARíS TIME, THE LEGISLATURE SIGNIFICANTLY INCREASED OUR BUYING POWER. WE WERE ABLE TO PURCHASE MORE COMPUTER CAPACITY FOR LESS MONEY. THIS GAVE OUR COURTS AND THE TAXPAYERS SIGNIFICANTLY MORE "BANG FOR THEIR BUCK".

LAST YEAR WE HAD TWO SUGGESTIONS FOR THE LEGISLATURE. FIRST, THAT ANY INCREASE IN COURT COSTS BE USED TO FUND THE COURT SYSTEM AND SET ASIDE IN A SPECIAL NON-REVERTING TECHNOLOGY FUND. OUR SECOND IDEA WAS TO ALLOW ELECTRONIC PUBLIC ACCESS TO OUR DATABASES FOR A FEE, WITH THE MONEY GOING INTO THE SAME NON-REVERTING TECHNOLOGY FUND. OUR THOUGHT WAS THAT ALL THOSE CREDIT COMPANIES AND OTHER PERSONS WANTING TO CHECK JUDGMENTS OR DO CRIMINAL RECORD CHECKS FROM THEIR OFFICES WOULD GLADLY PAY A REASONABLE FEE. THIS WOULD REDUCE THE COST TO THE TAXPAYERS IN PROVIDING SUCH PUBLIC ACCESS TO OUR COMPUTER SYSTEMS. IT WOULD ALSO REDUCE THE ANTICIPATED COST OF UPGRADING AND EXPANDING THOSE SYSTEMS AS NEEDED. IN OTHER WORDS, WE WOULD MAKE COURT "COSTS" PAY FOR JUST THAT -- THE COSTS OF RUNNING THE COURTS -- WITH THE FUNDS RAISED BEING DEDICATED TO THE SPECIFIC PURPOSE OF UPGRADING COURT INFORMATION TECHNOLOGY. NEITHER OF THESE SUGGESTIONS PASSED, AND WE CONTINUE TO DIG OURSELVES FURTHER AND FURTHER INTO A HOLE.

WE KEEP GETTING ONE-TIME MONEY, AND WE ARE GRATEFUL. BUT BUYING A COMPUTER DOES NOT MAINTAIN IT, KEEP UP THE PHONE LINE, OR UPGRADE THE SOFTWARE, AND IT DOES NOT TRAIN THE USER.

THERE ARE TWO OTHER FACTORS THAT MAKE OUR RESOURCES INADEQUATE. THE FIRST IS SUBSTANTIVE LEGISLATION THAT PLACES ADDED DUTIES ON THE COURT SYSTEM WITHOUT GIVING US ANY ADDITIONAL RESOURCES. THIS IS A LONG STANDING AND RECURRING PRACTICE AND A MAJOR REASON WE HAVE LOST GROUND IN RECENT YEARS IN ATTEMPTING TO MEET OUR EVER EXPANDING DUTIES.

A SECOND MAJOR AREA OF UNFUNDED MANDATES FROM THE LEGISLATURE INVOLVES NEW DATA COLLECTION AND REPORTING REQUIREMENTS. LET ME GIVE YOU A COUPLE OF EXAMPLES. A NEW CHILD SUPPORT ENFORCEMENT LAW (1997 SLH33) REQUIRES THAT THE SOCIAL SECURITY NUMBERS OF CHILDREN AND PARENTS BE RECORDED FOR THE "COURT RECORD." IT ALSO ESTABLISHES A LIEN FOR NON-PAYMENT OF CHILD SUPPORT AND REQUIRES CLERKS OF SUPERIOR COURT TO DOCKET THOSE LIENS.

ANOTHER EXAMPLE IS A NEW LAW (197 SL379) WHICH INCREASES THE TIME FOR CIVIL REVOCATION OF DRIVERSí LICENSES FOR DRIVING WHILE IMPAIRED FROM 10 TO 30 DAYS AND ALLOWS, FOR THE FIRST TIME, A LIMITED DRIVING PRIVILEGE. LAST YEAR THERE WERE 63,000 SUCH CASES.

ANOTHER NEW LAW (HB183) PROVIDES FOR INDEFINITE CIVIL REVOCATION OF THE LICENSE OF A DRIVER WHO ALREADY HAS A PENDING DWI CHARGE, BUT AGAIN ALLOWS A LIMITED PRIVILEGE. NOW OUR JUDGES WILL HAVE TO KEEP UP WITH WHO HAS MULTIPLE CHARGES, ADD HEARING TIME FOR PROCEEDINGS FOR LIMITED PRIVILEGES, ESTABLISH THE RECORD, AND NOTIFY DMV.

YET ANOTHER NEW LAW (1997 SL138) ALLOWS EXPUNGEMENT OF DRIVING VIOLATIONS BY 19 AND 20 YEAR OLDS. THIS INVOLVES MORE THAN 5,000 CASES PER YEAR.

I DO NOT QUESTION THE WISDOM OR DESIRABILITY OF ANY OF THESE NEW PROVISIONS OF LAW. BUT IT IS LUDICROUS TO THINK THAT OUR ALREADY OVERLOADED COURTS CAN ENFORCE THEM WHILE CONTINUING TO PERFORM THEIR EXISTING DUTIES, WITHOUT ADDITIONAL JUDGES, COURT PERSONNEL AND RECORD-KEEPING ABILITY.

MEANWHILE, LOOMING ON THE HORIZON IS THE VICTIMS RIGHTS LEGISLATION WHICH WILL SOON PASS AND WHICH UNQUESTIONABLY WILL PLACE AN ENORMOUS NEW BURDEN ON OUR COURT PERSONNEL. I AM AFRAID TO EVEN GUESS AT THIS POINT JUST HOW MUCH ADDITIONAL RECORD-KEEPING WILL BE MANDATED OR HOW MANY ADDITIONAL COURT PERSONNEL WILL BE REQUIRED TO COMPLY WITH ANY SUCH ENABLING LEGISLATION. I CAN SAY WITHOUT DOUBT, HOWEVER, THAT A MASSIVE INFUSION OF TECHNOLOGY AND PERSONNEL FOR THE COURTS WILL BE REQUIRED. IF IT IS NOT FORTHCOMING, THE ENTIRE PROMISE OF THE VICTIMíS RIGHTS AMENDMENT PASSED BY OUR LEGISLATURE AND APPROVED BY THE PUBLIC WILL HAVE BEEN A CYNICAL FALSE PROMISE WITH NO DELIVERY.

I BELIEVE THAT YOUR CONCERTED EFFORT TO GAIN SUPPORT FOR COURT REFORM, MAY MAKE A BIGGER DIFFERENCE THAN ANYTHING WE DO. ALL OF US MUST SPEAK OUT ABOUT THE RESOURCES THE COURTS NEED IF THEY ARE TO CARRY OUT THE ADDITIONAL DUTIES THRUST UPON THEM BY EACH SESSION OF THE LEGISLATURE.

THE NEED FOR ADDITIONAL RESOURCES IS NOT THE ONLY DIFFICULTY FACED BY THE COURTS. LAST DECEMBER, THE COMMISSION FOR THE FUTURE OF JUSTICE AND THE COURTS IN NORTH CAROLINA, CHAIRED BY JOHN MEDLIN, CHAIRMAN OF THE BOARD OF THE WACHOVIA BANK SYSTEM, RELEASED ITS FINAL REPORT MAKING RECOMMENDATIONS FOR COURT REFORM IN NORTH CAROLINA. ITS RECOMMENDATIONS WERE DRAMATIC AND INCLUDED THE RESTRUCTURING OF OUR TRIAL COURTS, A NEW METHOD FOR SELECTING JUDGES AND NUMEROUS OTHER RECOMMENDATIONS. I WILL CONCLUDE BY DISCUSSING ONE VERY CRUCIAL PROBLEM WHICH THE COMMISSION HIGHLIGHTED INVOLVING THE ISSUE OF THE GOVERNANCE OF THE COURT SYSTEM.

THE COMMISSIONíS REPORT DOCUMENTS THE FACT THAT IN NORTH CAROLINA -- UNLIKE THE SITUATION IN MANY IF NOT MOST STATES -- JUDGES, OTHER COURT PERSONNEL AND LAWYERS ARE BEING HELD ACCOUNTABLE FOR A SYSTEM OVER WHICH THEY HAVE LITTLE CONTROL. THE COMMISSION POINTED OUT THAT IT IS THE LEGISLATURE AND NOT THE JUDICIAL BRANCH WHICH CONTROLS THE RULES OF PROCEDURE IN BOTH THE CIVIL AND CRIMINAL COURTS AS WELL AS THE RULES OF EVIDENCE APPLIED IN THOSE COURTS. ADDITIONALLY, IT IS THE LEGISLATURE AND NOT THE JUDICIAL BRANCH WHICH SETS THE SIZE AND THEREBY DETERMINES THE EFFICIENCY OF THE JUDICIAL DISTRICTS OF NORTH CAROLINA. THE COMMISSION MADE THE COMMON SENSE OBSERVATION THAT IT IS UNFAIR AND SIMPLY WRONG TO HOLD COURT PERSONNEL RESPONSIBLE FOR ANY MALFUNCTIONING IN A SYSTEM OVER WHICH THEY ARE NOT GIVEN CONTROL. THE COMMISSION MADE THE OBVIOUS MANAGEMENT RECOMMENDATION THAT ACCOUNTABILITY AND AUTHORITY BE PLACED IN THE SAME HANDS. THE COMMISSIONíS RECOMMENDATION WAS THAT SINCE ACCOUNTABILITY FOR THE COURTS SHOULD RIGHTLY BE PLACED UPON THE JUDICIAL BRANCH, ALL OF THESE FUNCTIONS SHOULD BE TURNED OVER TO THE JUDGES AND LAWYERS WHO MUST MAKE THE COURTS WORK, IF THEY ARE TO WORK PROPERLY. I URGE ALL OF YOU TO FAMILIARIZE YOURSELVES WITH THE COMMISSIONíS RECOMMENDATIONS.

I AM CONVINCED THAT THE PUBLIC IS DEMANDING AND WILL HAVE COURT REFORM. I THINK IT IS TO OUR ADVANTAGE TO SERIOUSLY CONSIDER THE RECOMMENDATIONS OF THE MEDLIN COMMISSION -- A COMMISSION COMPOSED OF CITIZENS, MOST OF WHOM ARE NOT LAWYERS. ITS THOUGHTFUL RECOMMENDATIONS DESERVE CLOSE ATTENTION.

IN CONCLUDING, LET ME REMIND YOU THAT EVERY YEAR OUR JUDGES IN NORTH CAROLINA DISPOSE OF MORE CASES PER JUDGE THAN THOSE OF ALMOST ANY OTHER STATE. AT THE SAME TIME, WE OPERATE OUR COURTS WITH FEWER JUDGES PER CAPITA THAN ALMOST ANY OF THE OTHER STATES. THE LAST AVAILABLE NATIONAL FIGURES INDICATE THAT ONLY TWO STATES OPERATE THEIR COURTS WITH FEWER JUDGES PER CAPITA AT THE SUPERIOR COURT LEVEL THAN NORTH CAROLINA. FURTHER, ONLY ALASKA HAD FEWER JUDGES PER CAPITA AT THE DISTRICT COURT LEVEL THAN NORTH CAROLINA. IT IS ACCURATE TO SAY THAT WE ARE OPERATING WITH FEWER JUDGES WHO ARE MORE PRODUCTIVE THAN THOSE OF ALMOST ANY OTHER STATE. NOW, THOUGH, WE HAVE REACHED OUR LIMITS. ANY SUBSTANTIAL IMPROVEMENT WILL ONLY COME THROUGH COURT REFORM AND A DEDICATION OF THE NEEDED RESOURCES TO OPERATE OUR COURTS.

IT IS UP TO OUR PEOPLE AND THEIR LEGISLATORS TO DECIDE WHETHER THEY ARE REALLY WILLING TO PAY THE PRICE OF THE EFFICIENT COURT SYSTEM THEY PURPORT TO WANT. THEY ARE NOT PAYING IT NOW. YOU MEMBERS OF THE COURTS COMMISSION CAN SHOW THEM HOW TO REACH THAT GOAL IF THEY ARE WILLING TO DEVOTE THEMSELVES TO IT. I AM HOPEFUL THAT THE PEOPLE OF NORTH CAROLINA WILL COMMIT THEMSELVES TO THIS GOAL AND STRONGLY INDICATE THAT CHOICE TO THEIR LEGISLATORS. I AM CONFIDENT THAT YOU WILL DO YOUR PART. I THANK YOU FOR YOUR DEDICATION AND YOUR SERVICE TO THE PEOPLE OF NORTH CAROLINA. I AM HONORED TO APPEAR BEFORE YOU TODAY.