NC BAR ASSOCIATION ANNUAL MEETING

delivered by

CHIEF JUSTICE BURLEY B. MITCHELL, JR.

NORTH CAROLINA SUPREME COURT

June 21, 1997

Asheville, North Carolina


MUCH HAS HAPPENED SINCE I SPOKE TO YOU LAST YEAR. IWILL FIRST MENTION BRIEFLY JUST A SAMPLE OF SOME OF OURINITIATIVES WHICH ARE WORKING.

WE HAVE ESTABLISHED A NEW CRIMINAL DOCKETMANAGEMENT SYSTEM IN TWO PILOT DISTRICTS -- DISTRICT 12(CUMBERLAND COUNTY) AND DISTRICT 13 (BLADEN, BRUNSWICKAND COLUMBUS COUNTIES). BOTH ARE WORKING VERY WELL.EACH MONTH ONE SPECIAL WEEK OF ADMINISTRATIVE COURT IS HELD IN THE SUPERIOR COURTS OF THOSE DISTRICTS TO KEEP ALL PENDING CASES ACTUALLY MOVING TO TRIAL. THE RESULTING EFFICIENCY HAS LED TO SUBSTANTIAL REDUCTIONS IN THE PENDING CASES IN THOSE DISTRICTS. FOR EXAMPLE, FELONY CASES PENDING IN THE SUPERIOR COURT IN CUMBERLAND COUNTY WERE REDUCED BY 9.3% IN FISCAL YEAR 1995 96. THIS WAS A PHENOMENAL ACHIEVEMENT, GIVEN THE FACT THAT NEW CASE FILINGS THERE INCREASED BY 20% DURING THAT SAME PERIOD.

OUR EXPERIMENTAL DRUG TREATMENT COURTS CONTINUETO BE A SUCCESS. WE HAVE EXPANDED THOSE COURTS TO FIVEJUDICIAL DISTRICTS. ALCOHOL AND DRUG ABUSE CONTINUE TOBE THE SINGLE LARGEST FACTOR IN OUR CRIMINAL CASES INNORTH CAROLINA, AS IN THE REST OF THE NATION. THESE DRUGTREATMENT COURTS HAVE ALLOWED US TO REQUIRE THATWHETHER DEFENDANTS ARE PUT IN PRISON OR ON PROBATION,THEY WILL PARTICIPATE IN DRUG OR ALCOHOL TREATMENTPROGRAMS AND REGULAR TESTING. EACH TIME ONE OF THESECOURTS HAS A SUCCESS, A PERSON IS DIVERTED FROM THEREVOLVING DOOR OF SUBSTANCE ABUSE, FOLLOWED BY CRIMINALCHARGES. THESE PEOPLE BECOME TAXPAYERS RATHER THAN TAXBURDENS.

THE CHILD CUSTODY MEDIATION PROGRAM IS NOWOPERATING IN 17 DISTRICT COURT DISTRICTS. WE HAVEEXPERIENCED A 56% RATE OF VOLUNTARY SETTLEMENT OF THECHILD CUSTODY CASES WHICH HAVE BEEN A PART OF THISPROGRAM. NOT ONLY DOES THIS REDUCE OUR PENDINGDOMESTIC COURT BACKLOGS, IT ALSO PROVIDES FOR THE BESTINTERESTS OF THESE CHILDREN IN A NON CONFRONTATIONALSETTING.

WE HAVE ALSO EXPERIENCED SOME SUCCESSES IN THE AREAOF TECHNOLOGY, EVEN THOUGH WE ARE WOEFULLY BEHIND ANDHAVE FAR TO GO. WE HAVE CREATED A NEW COMPUTERPROGRAM FOR DISTRICT ATTORNEYS AND PUBLIC DEFENDERS. ITWILL ALLOW FOR COMPUTER SCHEDULING OF CASES IN OURPROSECUTORS' AND DEFENDERS' OFFICES. IT WILL LET THEMTAKE ADVANTAGE OF DATA ALREADY ENTERED BY CLERKS OFCOURT AND OTHERS WITHOUT THE WASTE OF TIME INVOLVED IN HAVING TO RE ENTER THE SAME INFORMATION SEVERAL TIMES. WE HOPE TO EVENTUALLY INSTALL IT IN ALL OF OUR DISTRICTS.

OUR NEW CIVIL CASE PROCESSING SYSTEM IS A SIMILARCOMPUTER PROGRAM THAT IMPOSES SOME BURDENS ONLAWYERS BUT THAT WILL ALLOW US TO BETTER MANAGE OURCIVIL CASES. IT WILL PROVIDE ATTORNEYS AND THE PUBLIC WITH QUICK ACCESS TO DETAILED INFORMATION REGARDING THESTATUS OF INDIVIDUAL CIVIL CASES. VERY IMPORTANTLY, IT WILL ALLOW JUDGES TO KNOW OF ATTORNEYS' COURT SCHEDULES, SO THAT WE CAN AVOID SCHEDULE CONFLICTS WHEN CALENDARING CIVIL CASES. THE SYSTEM IS CURRENTLY ON LINE IN 60 COUNTIES.

ALTHOUGH WE HAVE HAD SUCCESSES, I CANNOT LET THISHIDE THE REALITY OF OUR SHORTCOMINGS. MANY OF OURPROBLEMS HAVE BEEN DOCUMENTED IN THE RECENT REPORTENTITLED "WITHOUT FAVOR, DENIAL OR DELAY A COURTSYSTEM FOR THE 21st CENTURY." THIS REPORT WAS FILED LAST DECEMBER BY THE COMMISSION FOR THE FUTURE OF JUSTICE ANDTHE COURTS IN NORTH CAROLINA, CHAIRED BY JOHN MEDLIN,FORMER CHIEF EXECUTIVE OFFICER AND PRESENT CHAIRMAN OF THE BOARD OF THE WACHOVIA CORPORATION. IT MAKESDETAILED RECOMMENDATIONS FOR RESTRUCTURING OUR ENTIRE COURT SYSTEM TO MEET THE CHALLENGES OF THE TWENTY FIRST CENTURY. IT IS VERY THOUGHT PROVOKING AND WORTHY OF YOUR MOST SERIOUS CONSIDERATION.

IN PARTICULAR, I THINK THE SECTION ON TECHNOLOGYDEMONSTRATES THAT OUR COURTS ARE AT LEAST FIFTEEN YEARS BEHIND WHERE THEY SHOULD BE IN COMPUTERIZATION, AND IT SPELLS OUT WITH COMPLETE ACCURACY WHAT MUST BE DONE TO BRING US INTO THE MODERN WORLD.ONE OF THE MOST DRAMATIC REVELATIONS IN THECOMMISSION'S REPORT WAS THE EXTENT TO WHICH THELEGISLATIVE BRANCH OF GOVERNMENT IN NORTH CAROLINA HASENCROACHED UPON THE TRADITIONAL AUTHORITY OF THEJUDICIAL BRANCH. SINCE THE 1 960'S, WE HAVE HEARD ACONSTANT REFRAIN AT BOTH THE NATIONAL AND STATE LEVELSTO THE EFFECT THAT THE COURTS HAVE BEEN INVADING THEPROVINCE OF THE LEGISLATURE BY CREATING LAW. BUT THECOMMISSION'S REPORT MAKES IT ABSOLUTELY CLEAR THAT THE LEGISLATURE HAS TAKEN CONTROL OF MANY OF THE MOST BASIC FUNCTIONS OF THE JUDICIAL BRANCH. IN FACT, THISPHENOMENON IS SO WELL ESTABLISHED THAT IT HAS COME TO BE VIEWED AS NORMAL PROCEDURE BY SOME.

IT IS THE LEGISLATURE WHICH HAS DETERMINED THE SIZE OF EACH OF OUR JUDICIAL AND PROSECUTORIAL DISTRICTS. THE LEGISLATURE HAS CREATED THE VERY RULES OF CIVIL PROCEDURE AND THE RULES OF CRIMINAL PROCEDURE, EVEN THOUGH LEGISLATORS OFTEN BLAME THE COURTS WHEN THE RESULTS ARE PREDICTABLY SILLY. THE LEGISLATURE EVEN WRITES THE RULES OF EVIDENCE TO BE APPLIED BY OUR JUDGES, A MATTER WHICH HAS ALWAYS BEEN VIEWED AS UNIQUELY THE PROVINCE OF THE COURTS IN COMMON LAW JURISDICTIONS. IN MANY STATES AND IN MOST ENGLISH SPEAKING COUNTRIES, ALL OF THESE MATTERS ARE CONTROLLED BY THE COURTS THEMSELVES. THE FUTURES COMMISSION HAS RECOMMENDED THAT ALLSUCH FUNCTIONS BY RETURNED TO THE COURTS. MANY OF THEMEMBERS OF THE COMMISSION ARE RECOGNIZED LEADERS IN THE PRIVATE SECTOR. THEY REACHED THE RATHER OBVIOUSCONCLUSION THAT LAWYERS AND JUDGES COULD NOT FAIRLY BE HELD RESPONSIBLE FOR THE FAILURES OF THE COURTS IN NORTH CAROLINA, SINCE THEY DO NOT HAVE CONTROL OF THOSE COURTS.TAKING A BUSINESS APPROACH, THE COMMISSION RECOMMENDED THAT THE JUDICIAL BRANCH BE GIVEN CONTROL OF THE RULES OF EVIDENCE AND THE RULES OF PROCEDURE AS WELL AS THE SHAPE AND SIZE OF THE JUDICIAL DISTRICTS. IN SHORT, THE COMMISSION RECOMMENDED THAT AUTHORITY AND ACCOUNTABILITY BE PLACED IN ONE INSTITUTION THE COURTS. I FIND IT DIFFICULT TO SEE HOW ANYONE COULD ARGUE WITH THAT SIMPLE PROPOSITION. I WILL RESIST EFFORT TO BLAME COURT PERSONNEL ANY LONGER FOR A SYSTEM OVER WHICH THEY HAVE LITTLE OR NO CONTROL. I BELIEVE THE FUTURES COMMISSION'S REPORT WILL BE A VALUABLE ASSET IN THIS REGARD.

THE FUTURES COMMISSION ACCEPTED AND PERFORMED THE TASK OF OUTLINING THE NEEDS OF THE COURTS IN THE TWENTY-FIRST CENTURY. MY FIRST DUTY, HOWEVER, IS TO DEAL WITH THE SEVERE IMMEDIATE NEEDS OF OUR COURTS. PLEASE BEAR IN MIND THAT THE ONLY DUTY PLACED UPON THE JUDICIAL BRANCH OF GOVERNMENT BY OUR CONSTITUTION IS THE DISPOSITION OF CIVIL AND CRIMINAL CASES IN OUR COURTS. THIS FUNDAMENTAL OR CORE CONSTITUTIONAL DUTY IS AND MUST BE OUR FIRST CONCERN, DESPITE THE FACT THAT THE GENERAL ASSEMBLY HAS, FOR BETTER OR WORSE, ASSIGNED MANY OTHER DUTIES TO THE JUDICIAL BRANCH. I WANT TO FOCUS THE REST OF MY REMARKS ON THIS CORE FUNCTION.

IN 1995,1 TEMPORARILY HALTED THE CONSTITUTIONALLYREQUIRED ROTATION OF OUR SUPERIOR COURT JUDGES AND SENT THEM ALL TO THEIR HOME DISTRICTS FOR THREE MONTHS TO DEAL WITH THEIR PENDING BACKLOGS OF CASES. I DID THE SAME THING AGAIN IN 1996, SENDING THE SUPERIOR COURT JUDGES TO THEIR HOME DISTRICTS FOR SIX MONTHS. AS A RESULT OF THESE AND OTHER SHORT TERM EFFORTS, WE WERE ABLE DURING FISCAL YEAR 1994-95 AND AGAIN IN 1995-96TO SIGNIFICANTLY REDUCE THE NUMBER OF CASES PENDING IN OUR SUPERIOR COURTS. I AM PROUD OF OUR TRIAL COURTS. THEY DID ALL OF THIS WITH ALMOST NO INCREASES IN PERSONNEL OR EQUIPMENT.

UNFORTUNATELY, I HAVE NOW RUN OUT OF EVERY SUCH SHORT TERM TECHNIQUE FOR INCREASING CASE DISPOSITIONS THAT I HAVE LEARNED OVER NEARLY THIRTY YEARS IN OUR TRIAL ANDAPPELLATE COURTS. WHEN LOOKING AT ALL OF OUR DISTRICT AND SUPERIOR COURT CASES, BOTH CIVIL AND CRIMINAL, THE PROBLEM BECOMES CLEAR. IN FISCAL YEAR 1995-96 WE DISPOSED OF MORE TOTAL CASES (2,599,861) THAN IN ANY OTHER YEAR IN THE HISTORY OF NORTH CAROLINA'S COURTS. BUT IN THAT SAME FISCAL YEAR, WE HAD EVEN MORE NEW CASE FILINGS (2,716,758) THAN EVER BEFORE.

LADIES AND GENTLEMEN, I CAN NOW SUMMARIZE IN ONE SENTENCE ALL OF THE STATISTICS CONCERNING THE JUDICIAL BRANCH'S PERFORMANCE OF ITS CORE CONSTITUTIONAL DUTY. WE ARE DECIDING AN ALL TIME HIGH NUMBER OF CASES. BUT OUR COURTS WILL SOON BEGIN TO FALL BEHIND AGAIN.

LIKE YOU, I KNOW THAT SOME OF OUR COURT OFFICIALSWORK HARDER THAN OTHERS. NEVERTHELESS, NORTH CAROLINA CONSISTENTLY RANKS AMONG THE VERY TOP STATES IN JUDICIAL PRODUCTIVITY. OUR DISTRICT ATTORNEYS ALSO CONSISTENTLY RANK AMONG THE MOST PRODUCTIVE IN THE NATION. I TELL YOU NOW THAT AS A COURT SYSTEM. WE HAVE ABOUT REACHED OUR MAXIMUM LIMITS. WE CANNOT DO MORE OR EVEN CONTINUE THE PACE WE HAVE SET IN THE LAST TWO YEARS WITHOUT SUBSTANTIAL INCREASES IN PERSONNEL AND OTHER RESOURCES.

AS I TOLD THE LEGISLATURE IN MY STATE OF THE JUDICIARY ADDRESS THIS YEAR, WE IN THE JUDICIAL BRANCH OF GOVERNMENT WANT TO PERFORM OUR CONSTITUTIONAL DUTY. IT IS OUR LIFE'S WORK AND WE ARE SWORN TO CARRY IT OUT. WE CAN AND WILL DO OUR PART IN ANY STATE POLICY TO CRACK DOWN ON DEAD BEAT PARENTS, BUT ONLY IF WE ARE GIVEN THE NEEDED PERSONNEL AND RESOURCES. WE CAN AND WILL DO OUR PART IN BEARING DOWN ON VIOLENT JUVENILES AND MAKING OUR SCHOOLS SAFE, BUT ONLY IF WE ARE GIVEN THE NECESSARY PEOPLE AND RESOURCES. OUR DISTRICT AND SUPERIOR COURTS CAN AND WILL IMPLEMENT EACH YEAR'S NEW WAVE OF LEGISLATION TO GET EVER TOUGHER WITH DRUNK DRIVERS, BUT ONLY IF WE ARE GIVEN THE PEOPLE AND RESOURCES. WE CAN EVEN REDUCE PLEA BARGAINING IN OUR CRIMINAL COURTS IF THAT IS WHAT THE PUBLIC DEMANDS, BUT ONLY IF WE ARE GIVEN A MASSIVE INFUSION OF NEW PEOPLE AND RESOURCES. WE WANT TO DO OUR DUTY, BUT ANY CALLS FOR LEGISLATION CREATING NEW CRIMES OR GIVING VICTIMS NEW RIGHTS WILL SIMPLY BE DEMAGOGUERY AND ONE MORE UNKEPT POLITICAL PROMISE IF NOT ACCOMPANIED BY ADEQUATE INCREASES IN COURT RESOURCES.

TO GIVE YOU JUST ONE CONCRETE EXAMPLE, I POINT TO THE VICTIMS' RIGHTS AMENDMENT TO OUR STATE CONSTITUTION WHICH THE VOTERS PASSED IN THE GENERAL ELECTION OF 1996. IF THE PROPOSED IMPLEMENTING LEGISLATION PASSES IN ITS CURRENT FORM, I REGRET TO TELL YOU THAT WE SIMPLY WILL NOT BE ABLE TO COMPLY WITHOUT A SUBSTANTIAL INCREASE IN PERSONNEL.

IN ITS CURRENT FORM, THE PROPOSED ENABLINGLEGISLATION WOULD REQUIRE THAT ALL VICTIMS OF MOSTCLASSES OF FELONIES BE CONTACTED BY THE DISTRICT ATTORNEY AND NOTIFIED OF THEIR RIGHTS TO BE PRESENT AT EVERY PROCEEDING INVOLVING THE DEFENDANT IN THEIR CASES. ADDITIONAL NOTICES TO VICTIMS WOULD BE REQUIRED FOR EACH OF THOSE INDIVIDUAL COURT PROCEEDINGS. THIS WOULD INVOLVE MORE THAN 44,000 SUCH VICTIMS EACH YEAR AND COUNTLESS PROCEEDINGS. ACCORDING TO OUR RATHER CONSERVATIVE ESTIMATES, WE WOULD NEED TO ADD 72 VICTIMWITNESS ASSISTANTS AND 19 ASSISTANT DISTRICT ATTORNEYSJUST TO CARRY OUT THIS PART OF THE ENABLING LEGISLATION.IT IS ALSO PROPOSED THAT ALL DOMESTIC VIOLENCEVICTIMS BE GIVEN SUCH NOTICES. BY VERY CONSERVATIVE ESTIMATES, THIS WOULD REQUIRE AN ADDITIONAL 50 VICTIM WITNESS ASSISTANTS. THUS, A TOTAL OF 122 VICTIM WITNESS ASSISTANTS WOULD BE NEEDED TO COMPLY WITH THE LEGISLATION.

THE LAST NUMBERS I SAW FROM THE LEGISLATURE HAD US RECEIVING ONLY ABOUT 40 SUCH POSITIONS -- ONLY ONE THIRD THE NUMBER NEEDED TO CARRY OUT THE NOTIFICATION REQUIREMENTS TO BE LOADED UPON THE COURT SYSTEM.

THIS NEW VICTIMS' RIGHTS PROVISION OF THECONSTITUTION WILL BE TURNED INTO A FALSE PROMISE IF WE ARE NOT GIVEN THE RESOURCES NECESSARY TO CARRY OUT THE IMPLEMENTING LEGISLATION. AT PRESENT, IT APPEARS THAT IS EXACTLY WHAT IS GOING TO HAPPEN.

WE ALSO NEED TO DESIGN AND PUT IN PLACE A TRUECOMPUTER SYSTEM BY WHICH OUR COURTS CAN TAKE ADVANTAGE OF THE INCREASED EFFICIENCY COMPUTERS HAVE'BROUGHT TO MUCH OF THE PRIVATE SECTOR. THIS WAS THE CONCLUSION OF THE FUTURE'S COMMISSION IN THE TECHNOLOGY SECTION OF ITS REPORT, AND I RECOMMEND THAT YOU READ THAT SECTION OF THE REPORT PARTICULARLY. TRACKING THE RECOMMENDATIONS OF THE FUTURE'S COMMISSION ON THIS POINT, WE ARE REQUESTING AN ADDITIONAL 6.7 MILLION DOLLARS THIS YEAR TO BEGIN THE PLANNING AND IMPLEMENTATION OF SUCH A SYSTEM WHICH WILL REQUIRE SEVERAL YEARS OF EFFORT.

IN NORTH CAROLINA, THE JUDICIAL BRANCH HAS ALWAYSBEEN A SEPARATE AND INDEPENDENT BRANCH OF GOVERNMENT,BUT IT RARELY HAS BEEN TREATED AS AN EQUAL BRANCH OFGOVERNMENT. IN RECENT YEARS, THE JUDICIARY HASCONSISTENTLY BEEN LIMITED TO AN APPROPRIATION OF ONLYABOUT 2.5% OF THE STATE'S GENERAL FUND BUDGET.SINCE 1983, WE HAVE ALMOST DOUBLED OUR PRISONCAPACITY, BUT WE HAVE HAD NO SUBSTANTIAL INCREASE INJUDGES. IT IS ALARMING TO NOTE THAT, EVEN IF WE RECEIVEEVERYTHING WE HAVE ASKED FOR THIS YEAR, WE WILL MERELY BE BACK TO OUR 1983 LEVELS OF PERSONNEL.

FAILING TO PROVIDE ADEQUATE RESOURCES TO THE COURTS AND THE RESULTING OVERLOAD INSURES THAT THE PUBLIC IS FRUSTRATED AND ANGRY. SUCH PROBLEMS IN NORTH CAROLINA AND IN OTHER STATES ARE IN LARGE PART RESPONSIBLE FOR INCREASED ATTACKS UPON OUR COURTS. THIS SHOULD STRIKE FEAR INTO THE HEARTS OF EVERY ONE OF US, AS IT IS ONLY THE RULE OF LAW WHICH SEPARATES US FROM THOSE NATIONS IN WHICH THERE IS NO FREEDOM.

I CLOSE NOW BY THANKING YOU MEMBERS OF THISASSOCIATION FOR YOUR UNFAILING SUPPORT FOR THE RULE OFLAW AND FOR OUR COURTS. ONCE AGAIN, WE CALL ON YOU FORYOUR HELP IN PRESSING THE MEMBERS OF THE GENERALASSEMBLY AND THE MEMBERS OF THE GENERAL PUBLIC TOADEQUATELY PROVIDE FOR THE FUNCTIONING OF THE COURTS.THE STAKES ARE NO LESS THAN THE SURVIVAL OF THE RULE OFLAW. I AM CONFIDENT THAT ONCE AGAIN YOU WILL COME TOOUR AID. THANK YOU VERY MUCH.