By George Olsen
http://stream.publicbroadcasting.net/production/mp3/pre/local-pre-538257.mp3
New Bern, NC – (Complete transcript of interview follows profile transcript)
INTRO - With no presidential, gubernatorial or U-S Senate races this Election Day, the top state-wide race is perhaps the Chief Justice post on the state Supreme Court. Challenging the incumbent Sarah Parker is Superior Court Judge Rusty Duke of Greenville. George Olsen offers a profile of the candidate.
Judge Duke points out his 16 years as a Superior Court judge when explaining what would make an ideal North Carolina Supreme Court justice.
05:41 How can a carpenter review what another carpenter has done if he's never done it? If they've never run a trial, it's very difficult. For an appellate judge to be a truly good appellate judge, that judge needs to have trial judge experience.
The Chief Justice post, however, in addition to reviewing trial court decisions, is in charge of the administration of the state courts an institution Judge Duke believes is underfunded, accounting for less than three percent of the state budget, according to his website. It's a complaint heard before, but as Chief Justice, Judge Duke believes he can start to correct that problem by being pro-active rather than waiting for funding first.
03:01 The chief justice needs to show that the court system is willing to change some things to serve the public better, and when I think the Legislature sees the court system is willing to change some things and serve the public better, then they will be forthcoming with more funding.
Among the ideas he would like to implement is assigning civil cases to individual judges, rather than assigning judges particular weeks when they would hear civil trials, which he says would eliminate inefficiencies. He points to a recent experience of his own adjudicating civil trials.
03:41 But the last week I was in Wilson, all the cases settled but one, I was scheduled for the whole week, I finished on Tuesday afternoon. Now if those cases that had been on that calendar, had I overseen those cases from start to finish, I would've known if they were truly for trial. What happens in this respect is that scheduling civil cases like that frees judges to be in the criminal courts, and almost every jail in this state is full, overcrowded. And we have Superior Court judges assigned to civil weeks where they're free after Monday or Tuesday.
He also wants to see technological advances in state courts specifically, e-filing, where a citizen, for a fee, can go on-line and see their civil or criminal file.
09:05 We need to establish a technological platform in Raleigh. We need to establish characteristics that every county system has to have, and then we need to allow the larger counties to come on right now. Mecklenburg County is ready to come on right now. Cumberland. Pitt County. These larger counties can't afford to wait much longer, and they're building courthouses because we're filling up our courthouses with paper.
Current plans for e-filing have the entire state going on-line at the same time. Judge Duke believes his plan for letting larger counties go ahead once the platform is in place will cost the state a fraction of what the current plan will cost, though he couldn't put a dollar figure on that. Increasing funding for the courts is the priority for Judge Duke. But he also believes as Chief Justice he'll have a bully pulpit to talk about issues of concern.
26:27 But 8 out of 10 people who appear before me or appear before any judge, have one common characteristic, and its not race, its not gender, and its not how much money they have. It is that the defendant has had no relationship or no significant relationship with their biological father.
Judge Duke admits that helping to rectify that situation falls to the executive and legislative branches and not the courts he adds he's not a social engineer, but nevertheless its an issue he hopes to talk about because it finds its way back to the courts.
31:19 I hear so many politicians say we're for the children, we're for the children. Everyone of them. They want to talk about certain problems but they don't want to talk about the structure of the family and the effect that divorce and illegitimacy have had on children and the lives of children children who grow up to be in my court and every other court in this state.
Superior Court Judge Rusty Duke is a candidate for the Chief Justice post on the state Supreme Court. I'm George Olsen.
OUTRO - Tomorrow we hear from the incumbent Chief Justice Sarah Parker. You can hear this profile again and read a complete transcript of our interview with Judge Duke at our website publicradioeast.org
Judge Rusty Duke interview conducted 10/10/06
What was your motivation to run for state Supreme Court Chief Justice? Was there a moment where you saw something occur and thought I could do something about that?
02:15 Well, no, it's been a process over the years of just seeing how things are done in our court system, and thinking they could be done a little differently and more efficiently.
Your web site mentions that less than 3% of the state budget goes to the court. What will you be able to bring to the table to get state funding up? Seems to me former Chief Justices Mitchell and Lake have both made the same assertion, that more money needs to be spent on the court system.
03:01 I think that what we actually need is to show some initiative from the court system. In other words, the chief justice needs to show that the court system is willing to change some things to serve the public better, and when I think the Legislature sees the court system is willing to change some things and serve the public better, then they will be forthcoming with more funding.
What do you think needs to be changed?
03:41 First thing the obvious thing to me, is to assign all civil cases to individual judges to oversee from start to finish. There was a blue ribbon commission whose report will be 10 years old this December that recommended that, and what that does is it greatly enhances the efficiency of the courts, because many weeks judges are not busy because the civil cases have settled. For instance, last week I'm on vacation this week but the last week I was in Wilson, all the cases settled but one, I was scheduled for the whole week, I finished on Tuesday afternoon. I was finished for the week. Now if those cases that had been on that calendar, had I overseen those cases from start to finish, I would've known if they were truly for trial. And when they're actually for trial, then they can be scheduled. What happens in this respect is that scheduling civil cases like that frees judges to be in the criminal courts, and almost every jail in this state is full, overcrowded. People sleeping on floors. And we have Superior Court judges assigned to civil weeks where they're free after Monday or Tuesday. That's very inefficient. That's not good service for the public.
You've said that you felt it was important for the Supreme Court to include judges with trial experience.
05:41 The appellate courts review the trial courts and what they do. Let's just take an analogy. How can a carpenter review what another carpenter has done if he's never done it? How can a coach who reviews what his players are doing, how can he adequately review what they're doing and coach them and tell them what they're doing right or wrong if they've never done it? If they've never run a trial, it's very difficult. For an appellate judge to be a truly good appellate judge, that judge needs to have trial judge experience. Now the last chief justice we had that had extensive trial judge experience was Susie Sharp, and she was a great Chief Justice (1974-1979), and everyone recognized her as being a great Chief Justice. She had 14 years of experience on Superior Court, and I've got 16 years. It takes a long time to really figure out the court system.
Tell me about some of your experience as a trial judge. For example, how many cases have you presided over in the last 12 months?
07:46 Probably over the last 18 years I've presided over 1000 jury cases. I tried to estimate that, and that's probably conservative. That varies from district to district according to district attorneys and whether they try cases. The district attorney in Pitt County tries a lot of cases. I've held a lot of court in Goldsboro in Wayne County they try a lot of cases. New Bern in Craven County David McFadyen, he tried a lot of cases. And we have good DA's they need more staff, and they need to have judges who will be there, and that's where the assignment of civil cases comes in.
You've expressed an interest in upgrading court technology. Can you give me a specific example of something you'd like to see? How would that effect me if I was to appear before you in Superior Court?
09:05 It would greatly effect you. We need e-filing. We need courts open to all people. Now, what I mean by that is you ought to be able to go to your computer and, for a fee very nominal, like the federal system, you can go on-line and see everything in your civil file or criminal file. You can do that in the federal court. The middle, eastern and western districts of federal court are currently on e-filing. With our present system that we are operating under right now technologically in state courts, it will be probably 8-to-10 years before we can have e-filing. Now, e-filing we need to upgrade our technology to have e-filing, and that can be done. This same commission I was talking to you about, the Medlin Commission on the Future of our Courts and Justice in North Carolina, 10 years old in December, recommended exactly what I'm saying. We need to establish a technological platform in Raleigh. We need to establish characteristics that every county system has to have, and then we need to allow the larger counties to come on right now. Mecklenburg County is ready to come on right now. So is New Hanover, they'd be ready to go. Cumberland. Pitt County. Wake. Guilford. Durham. Forsyth. Buncombe. These larger counties can't afford to wait much longer, and they're building courthouses because we're filling up our courthouses with paper.
What would be the initial cost to start this project? Have you identified that?
11:06 No, and I'll say this. It will be much less, a fraction of what its going to cost if we continue to proceed the way we are now, because what I'm talking about doing, and the recommendation of this commission was to do it as the counties elect to do it, and spread the cost over years. The current plan is to develop a system that will fit Mecklenburg County and Hyde County at the same time and fit the same shoe on the foot of Hyde or Tyrrell County that you would try to fit on Wake County. That just doesn't make sense. And politically, the reason the powers that be want to do that, is to keep a small county's clerks of court happy that they've got the same system that the larger counties have. Well, somebody has to say that's not going to work. We can't do that. We cannot require these larger counties in the state to wait while the smaller counties get ready for it. To try to do it on the whole state at the same time, number one it would be greatly inefficient, number two it would be totally controlled from Raleigh so anytime the e-mail goes down in Clay County it'll go down in Hyde County 600 miles apart. That's the way it does now. That's no way to run a business.
You're not participating in public funding. One of the arguments for public funding is that if I'm sitting before you and the opposing side's attorney has donated twice the amount to your campaign that my attorney has, there can be the appearance of impropriety. But there are concerns about free speech campaign dollars as speech. How do your balance your concerns about free speech against those concerns of a possible appearance of impropriety?
13:45 You know, with tax payer funded elections for instance, my opponent is a participating candidate. She took the taxpayer funds. Yet, she had to raise some private campaign contributions to qualify, almost all of which came from lawyers, and the percentage of the campaign funds that I have received are 10-12% from lawyers. Hers is like 98%, mine is 12%. I don't think lawyers contribute to judges expecting anything in return, but if they do, and the other side, the opponent, objects, the judge will recuse him or herself. That's done every day. And if someone brought that issue to me before me in my court, I would certainly recuse myself. You're correct. It should not be the appearance if someone does not feel they're on a level playing field, it should be leveled. And it needs to appear level, and it's always been level in my court. And I think almost every judge as a lawyer, I can tell you it does not feel good when you're not on a level playing field, and it's a very lonely feeling.
Did you spend time as a trial attorney?
15:22 Oh yes. For about 12 years.
Tell me how your time as a trial attorney helped shape your view of the judiciary.
15:34 What really shaped my view of the judiciary was Dean Carroll Weathers at the Wake Forest law school. He was a great man and had a wonderful heart for the law. The next person who shaped my view of the judiciary was Judge John Larkins. He was a federal judge from Trenton and he was a great man just a wonderful heart about him. He was a good man tough judge, but compassionate. Now, over the next few years I practiced law before many judges, and those judges had something everyone of them, even the ones I didn't think were particularly good judges and the one that I thought I wasn't on a level playing ground. Those judges shaped the way I look at the law and the way I look at my role as a judge, and I have strived to be fair and listen, and then I apply the law. I'm known as a tough, no nonsense judge. I'm tough, but I also look at people with compassion, and we have to consider the victims, we have to consider the community, the peace of the community. There are a lot of things judges have to look at when they're passing a sentence, when they pronounce a judgment. We just can't always be one way or the other. Every situation is different.
You've said you're not a judicial activist. In the event there is a public concern that the people feel that the legislative and executive branches of government have not acted on, isn't it up to the third branch of government the judiciary to act on the matter if it comes before them?
18:24 The judges are bound by the law. They are bound by written documents. They are sworn to uphold two written documents the constitution of the United States and the constitution of North Carolina not inconsistent with the constitution of the United States. That's their sworn duty. So no matter what the public need or public wants, that makes no difference. Judges are not policy makers and they're not social engineers and they're not social workers. They merely are people who are instruments, basically, to administer the law to see that justice is done within that law. And if they perceive personally that justice can not be done within the law, and they get this feeling and not thought, but feeling, emotion that they want to solve this wound, this hurt, this problem, that's not their role. Their role is to rule on the law before them. And every case is a fact situation, and there are two litigants usually. And if the judge starts to try to solve societal ills with just two litigants in the room, just their lawyers, with no one else having the right to debate, no one else having the right to raise their hand and say wait a minute judge, I'd like to be heard on that, this is a democratic republic if the judge thinks he can make that decision in that closed forum where there is no debate, its an open courtroom but its not open to everybody if you're not a litigant in the case you don't have a right to be heard so for a judge to take that small group with those small lawyers and make the decision, just empowers lawyers, just empowers judges. It makes us high priests, and that's not what our system is designed to be. Our system is a democratic republic, and when judges remove the cultural, societal, economic those issues, remove them from public debate, by making the decision themselves, then that's the end of democracy.
What opinion do you have about judicial elections? Federal judges are appointed, and some have called for a similar system in North Carolina.
21:44 I can tell you this. The appointed system that the federal government uses is much more political than the elective system. It's incredible. It's a disgrace, to put those people through what they put them through. Good people good solid judges, and just attack them have Kennedy up there, who's it's just incredible to me. I'll take my chances with the people, and I'll tell you something else about electing judges. You haven't had any wacko decisions from the North Carolina Supreme Court or appellate courts, and I think one of the reasons is judges know they're going to be held accountable in the next election, so if the judges in this state decide for the people an issue that ought to be left to the people, then in the next election they may be returned to the practice of law, and they know that, and I think that they apply the law. This state has a very good record of judges just following the law, and I think that elections have a whale of a lot to do with that.
There have been various boundaries put on judges in recent years structured sentencing, three-strikes laws. Do those help or hinder you in doing your job effectively?
23:32 Number One, you do want to get repeaters off the streets, and there are a lot of them, but you do not want to do an injustice. I had a case in Duplin County once where a fellow stole a lawnmower, and he stole it out from under a garage that was attached to the house and that was breaking and entering, that was a felony. Took a lawnmower. Now the prosecutor brought it with habitual felon, and I was required under the law to sentence him to something over nine years. Now, I had to follow the law. I had to do what the law required me to do. I did it, but the case still bothers me. It's just not justice. Now, what would be justice in that case? I don't know, but I don't think its nine years. There are other cases like that. If you're going to have habitual felon cases, it ought to be a serious case. It ought to be an affront to the community. Mandatory sentencing I'm not sure if I can go along with that because I've seen instances of injustice. Now, structured sentencing, minimum/maximum sentences, I think that's great. I think we're doing a good job with that. I think judges are now more uniform. You don't have one judge who'll put someone in prison for a long, long, long time and another who'll put someone on probation or whatever. Now the judge who would put them on probation is required to give them a minimum sentence, it's going to have to be somewhere within months of what every other judge would do, and the judge that would hammer somebody is required to restrain and do within that structured sentencing guideline. I think that's a good thing. Some people don't like it but I do.
You just mentioned a case where you didn't like the sentence you had to hand out but you did nevertheless. Do you think that's a good illustration of who you are as a judge willing to mete out the required sentence though not always happy about it?
26:07 If the judge doesn't follow the law, how can anybody else be expected to do that. That's my question. You have to be held to a higher standard.
Would you like to see the habitual felon laws reviewed again?
26:27 I think they're going to be. I think they're going to HAVE to be. There's someone who stole a lawnmower occupying prison space for a long time, and, I don't know if that's the best thing. I gave him work release. This man was not used to working. Almost everyone of those cases, look back at my record, I recommend in those judgments work release, because most of the people we run into, they're not used to having a job, and under work release they get the experience of having a job in a very structured environment. Over a period a time they learn I like this. I get a sense of accomplishment. I'll tell you, and we're getting into another subject now, but 8 out of 10 people who appear before me or appear before any judge, have one common characteristic, and its not race, its not gender, and its not how much money they have, because I've seen them all. It is that the defendant has had no relationship or no significant relationship with their biological father. And the percentage is even greater in the prisons of those who would say they had no relationship with their biological father. So you have to look at these people and I'm not saying this is an excuse. There is no excuse for crime. There is no excuse for criminal conduct, but a judge has to know who he's looking at when he sentences somebody, and that's the experience of, I estimate, at least 8 out of 10 of them. To solve the crime problem, we have to solve the family problem. To say that it takes a village is absolutely idiocy. It takes a village idiot to say it takes a village. It takes a family made up of a man and a woman who instructs the child and gives that child a sense of worth, and I've arrived at these conclusions I've come from a person who has seen, I've witnessed the damage to people's lives of broken families. I'm not saying that everyone that has a bad relationship with their father or comes from a broken home is going to end up in jail or in court. If that were the case, we couldn't build enough courthouses. I'm not saying that at all, and I'm not saying that single mothers cannot raise successful children. We all know that can be done. I'm just saying of the people I see, that's the characteristic they carry, and we've got to do something. When we get tired of building prisons and we get tired of crime, we're going to have to turn our attention to strengthening the family structure.
But is that something that can come about from the bench, or isn't that more of a legislative question?
30:00 That's a legislative issue. That's a people's issue.
This isn't something I can do from the seat I hold, but it's something I've seen.
30:12 That's right. I am not a social engineer. But I can say this. As chief justice, that person, that position has a bully pulpit, and that issue needs to be talked about. That needs to be talked about. We need to know what the problem is before we can solve it, and there are a lot of people who are disoriented, lost, have no connection to the community, have no connection to the people because they don't have any family structure and they commit crimes, and many of them commit very violent crimes. They don't think they're worth anything, so they think anyone they're looking at isn't worth anything.
Is that the first issue you address from your bully pulpit or will it be your belief that the court system is underfunded?
31:19 That's my job, the more funding for the courts business. That's the number one priority. No, I think this is something we need to put on the table for discussion by the legislature, by the Governor. I hear so many politicians say we're for the children, we're for the children. Everyone of them. Yet they don't really talk about how the children are being raised and the situation of the family. And that's where the children are. The school system people look at the school system and criticize it, saying oh, the school system is this bad and they're not doing this right, etcetc. But how are they going to educate a kid who has been up all night long listening to loud music or whatever. How are they going to educate that child? What kind of attitude is that child going to have when they get to school? Are they going to be wide awake and vibrant and ready to learn? Yet people want to criticize the schools. I don't understand that. They want to talk about certain problems but they don't want to talk about the structure of the family and the effect that divorce and illegitimacy have had on children and the lives of children children who grow up to be in my court and every other court in this state.