Sam J. Ervin, IV | Candidate Questionnaires | Indy Week

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Sam J. Ervin, IV

Candidate for N.C. Court of Appeals, Tyson seat

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Name as it Appears on the Ballot: Sam J. Ervin, IV

Date of Birth: November 18, 1955

Campaign Web Site: www.ervinforcourtofappeals.com

Occupation & Employer: Commissioner, North Carolina Utilities Commission

Years lived in North Carolina: I have been a legal resident of North Carolina all my life, and have actually lived in North Carolina for the vast majority of my life.


1. What in your record as a judge, lawyer and/or public official, or other relevant positions, demonstrates your ability to be effective on the bench? This might include career or community service; be specific about its relevance to this office. When speaking about your legal experience, please be specific about the nature of positions held, and whether you were hired, appointed or elected.

A number of aspects of my record as a lawyer and as a member of the Utilities Commission demonstrate that I can be an effective member of the appellate judiciary. The essential function performed by an appellate judge is to decide whether legal error was committed at the trial court or administrative tribunal level. An appellate judge does not, as a general matter, have the responsibility for designing, developing, or implementing governmental programs. Thus, the critical skill needed to serve on the Court of Appeals effectively is the ability to fairly and impartially decide specific legal issues that arise in specific cases and to draft clear and coherent opinions explaining the basis for the Court's decisions. As an intermediate appellate court, the Court of Appeals is required to address a wide variety of different types of legal issues. During my 18 years as a practicing attorney, I handled a wide variety of cases, including capital cases, other serious criminal cases, personal injury cases, contract disputes, property cases, employment cases, and utility rate matters. In addition, I have had extensive appellate experience, having handled approximately 18 cases in the Supreme Court of North Carolina and more than 20 cases in the North Carolina Court of Appeals. Furthermore, I was appointed to the Utilities Commission by Governor Hunt and have served on that body since 1999. My nine years of service on the Utilities Commission gives me what amounts to judicial experience. The Utilities Commission functions very much like a court. Among other things, it rules on procedural motions, hears evidence, makes evidentiary rulings, decides complicated issues of law and fact, and issues detailed written orders that resemble appellate opinions. The Utilities Commission handles some of the most complex cases decided by any court or administrative agency in North Carolina. I believe that I have developed a reputation as well-informed, thorough, and fair to all parties during my service on the Utilities Commission. As a result, I believe that the breadth of my legal experience and my demonstrated record of deciding complicated cases fairly and impartially as a member of the Utilities Commission demonstrate that I can ably serve the people of North Carolina as a Judge on the Court of Appeals.

2. If you have experience as a judge, please cite at least one majority opinion, and one minority opinion, which you feel best demonstrate your understanding, and interpretation of the law. If you have experience as a lawyer, please cite at least one case that you have argued that demonstrates this understanding (please be specific: provide docket numbers, and—if necessary—include documents.) If you have other legal experience, please point to an article, opinion or other piece of writing that best demonstrates the same. Please indicate why you have chosen this particular opinion, case and/or piece of writing.

Although I have not ever technically served as a judge, the Utilities Commission, on which I have served since 1999, functions very much like a court. During my work on the Utilities Commission, I have written a number of majority orders and dissenting opinions. Although Utilities Commission orders are not issued over the names of individual commissioners, I would point Independent readers to the Order Requiring Provision of Service Subject to Conditions entered by the Utilities Commission on March 20, 2001, and the Order Addressing Contracts and Related Issues entered by the Utilities Commission on April 1, 2002, in Docket No. W-354, Sub 236, as examples of orders addressing cases involving complex legal issues in which I was involved. Both of these decisions were upheld on appeal and can be accessed using the Docket Information and Docket Search functions provided on the Utilities Commission's website (www.ncuc.net). As an example of a case in which I dissented from the majority decision during my service as a member of the Utilities Commission, I would point Independent readers to my separate statement dissenting from the Order Approving Deferred Accounting Treatment for Emission Allowance Expenses entered by the Utilities Commission on January 18 2001, in Docket No. E-2, Sub 769. This decision can also be accessed using the Docket Information and Docket Search functions on the Utilities Commission's website. Other examples of dissenting statements that I have written are attached to the Recommended Arbitration Order entered by the Utilities Commission on March 9, 2001, and the Order Ruling on Objections and Requiring the Filing of the Composite Agreement entered by the Utilities Commission on June 19 2001, in Docket No. P-140, Sub 73 (as an aside, the position that I took in dissent in this case was later found to be correct by the United States Court of Appeals for the Fourth Circuit). These dissenting statements can also be accessed through the Docket Information and Docket Search functions on the Utilities Commission's website. I selected these orders and dissenting statements because they speak to my ability to carefully and thoroughly analyze complex issues of law and fact. As a practicing attorney, I handled numerous appeals to the Supreme Court of North Carolina and the North Carolina Court of Appeals, including State v. Boyd, 332 N.C. 101, 418 S.E. 2d 471 (1992), in which I successfully obtained a new trial for an individual who had been convicted of first degree murder and sentenced to death, and Carrier v. Starnes, 120 N.C. App. 513, 463 S.E. 2d 393 (1995)), in which I successfully defended a judgment rendered in favor of my firm's client in a personal injury case. I selected these cases from the wide variety of cases that I handled in the appellate courts as a lawyer in order to show my ability to successfully argue legal issues before the appellate courts in a variety of contexts.

3. Have you ever recused yourself from a case or, as a lawyer, faced a conflict of interest? Please explain.

I have recused myself from participating in several cases during my service as a member of the Utilities Commission. For example, I declined to participate in cases involving one of my former clients for a period of time after taking office in order to avoid the appearance of impropriety. I believe that I have also recused myself from participating in decisions in which I had appeared as counsel. Finally, I have recused myself on at least one occasion because I had personal knowledge of disputed evidentiary facts. In addition, I declined to represent certain clients during the time that I was in private practice in order to avoid conflicts of interest. As a result, I have demonstrated the ability to recuse myself or to decline to undertake the representation of clients in appropriate instances.

4. In the case of N.C. v. Frank Delano Washington, which came before the North Carolina Court of Appeals, all charges against Washington were dropped because, the appellate court determined, Washington's right to a speedy trial was denied. What is your interpretation of a defendant's right to a speedy trial, and what are the implications of releasing a convicted felon, in an effort to preserve that right? Please provide your opinion of the case, and the role you see judges playing in preserving constitutional rights, versus preserving public safety.

As a member of the Utilities Commission, I am subject to the provisions of the Code of Judicial Conduct. G.S. 62-10(i). According to Canon 3.A(6), "[a] judge should abstain from public comment about the merits of a pending proceeding in any state or federal court dealing with a case or controversy arising in North Carolina or addressing North Carolina law . . . ." As a result of the fact that the time within which the State is allowed to seek review of the Washington decision by the Supreme Court of North Carolina has not expired, I do not believe that it is appropriate for me to comment directly on the merits of the Court of Appeals' recent decision in that case. As a general proposition, the federal constitutional principles applicable to speedy trial claims are discussed in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1971), and its progeny, which rely on a four factor balancing test that focuses on the length of the delay, the reasons for the delay, the extent to which the defendant asserted his or her right to a speedy trial, and the prejudice to the defendant resulting from the delay. A similar analysis is employed in evaluating speedy trial claims asserted under Article I, Section 18 of the North Carolina Constitution. State v. Flowers, 347 N.C. 1, 489 S.E. 2d 391 (1997). The role of the appellate courts in which criminal defendants assert that their rights under the federal or state constitutions have been violated is to ascertain the proper construction of the constitutional provision under consideration and to determine whether a violation of the provision in question, as properly interpreted, occurred given the facts of the particular case under consideration. In the event that an appellate judge concludes that a constitutional violation occurred, he or she should not hesitate to grant the required relief, including ordering the defendant's release, in order to uphold the relevant constitutional provision. On the other hand, if an appellate judge determines that no violation occurred, he or she should not hesitate to vote to uphold the defendant's conviction.

5. This year, the U.S. Supreme Court ruled, in a 5-4 decision, that enemy combatants held in the United States Naval Base at Guantanamo Bay, Cuba, have a right to file habeas corpus petitions under the federal court system. What is your opinion of Bourmediene v. Bush? More generally, what is your opinion of granting constitutional rights to enemy combatants captured in the "War on Terror"?

The nature and extent of federal habeas corpus jurisdiction in cases involving individuals suspected of involvement in terrorist activities is a matter for Congress and the federal courts rather than for the Court of Appeals. In other words, I do not believe that the exact issue raised by this question is subject to control by the Court of Appeals. As a general proposition, I have declined to comment on issues that are not subject to the control of the Court of Appeals, since I do not believe that they are really relevant to a particular candidate's qualifications for election to the Court. Furthermore, I do not believe that it is appropriate for me to comment on the correctness of specific decisions of the United States Supreme Court. To the extent that the Court of Appeals is called upon to decide a case governed by a particular United States Supreme Court decision, the Court of Appeals is bound by that decision. In other words, the Court of Appeals is not free to disregard or seek to minimize the impact of a decision of the United States Supreme Court simply because the members of the Court of Appeals disagree with that decision. At bottom, the job of a Judge of the Court of Appeals is to fairly and impartially decide the cases that come before the court for decision on the basis of existing law. A litigant relying on the principles enunciated in a particular decision of the United States Supreme Court could reasonably believe that an appellate judge who had publicly expressed an opinion about the correctness or lack of correctness of that decision could not fairly decide his or her case. As a result, I do not believe that it is appropriate for me to comment directly on the issues raised by this question.

6. One of the most controversial issues in this election year is illegal immigation. Recently, several N.C. counties—including Alamance, Johnston and Wake—have employed the 287(g) program, which streamlines local law enforcement and federal immigration enforcement. What is your opinion of these counties' handling of this program? Critics say that sheriff's departments in these counties are arresting non-citizens for petty offenses in order to enter them into federal deportation hearings, while local law enforcement agencies insist that they are following the rule of law. As someone who, if elected, will interpret the law, what is your legal assessment of these arguments? More generally, can there be discretion in deciding when to apply the law?

All governmental agencies, including local law enforcement agencies, exercise some degree of discretion in the manner in which they carry out their duties. For example, it is well-established that prosecutors have considerable discretion in deciding what charges, if any, to bring against particular suspects in criminal cases. As long as governmental officials exercise their discretion within appropriate legal bounds, they have the freedom to act in accordance with their best judgment. I do not believe that it is appropriate for me to comment on the appropriateness of the manner in which certain counties have implemented the 287(g) program. As I have indicated earlier, the essential function of the Court of Appeals is to decide specific cases that come before it for decision on the basis of existing law. I have declined, for the reasons set out above, to comment on issues that are not within the scope of the Court of Appeals' jurisdiction, such as the wisdom of particular policy decisions made by the General Assembly or Congress. Except to the extent that local enforcement practices raise federal constitutional issues, the Court of Appeals has no say in the manner in which local law enforcement agencies implement the Section 287(g) program. To the extent that such implementation decisions raise federal constitutional issues, I do not believe that it is appropriate for me to comment on them since such issues might come before the Court of Appeals and since I do not wish to impair my ability to fairly and impartially decide such cases by commenting on any federal constitutional issues that might arise in connection with the implementation of the Section 287(g) program. As a result, I do not believe that it is appropriate for me to directly comment on the issue posited by this question.

7. In Kimbrough v. U.S., the U.S. Supreme Court ruled that the mandatory minimum sentencing laws for the possession of crack cocaine were unconstitutional. What is your opinion of this ruling, and on mandatory minimum sentencing laws in general? Should judges have more or less flexibility in the sentencing process that currently allowed under North Carolina law? Finally, do you feel that state judges can ever apply discretion in interpreting cases differently than the federal guidelines mandate? Please provide examples.

As I indicated in response to an earlier question, I have consistently declined to comment on the correctness or lack of correctness of specific decisions of the United States Supreme Court during the course of my campaign in order to avoid creating any risk that I will be perceived as unable to fairly and impartially decide future cases in the event that I am elected to the Court of Appeals. Furthermore, the extent, within constitutional limits, to which judges should have more sentencing discretion than is afforded under current North Carolina law is a decision for the General Assembly and not the Court of Appeals. The federal sentencing guidelines do not now and have never applied to the imposition of sentences in the North Carolina courts. Instead, the General Assembly has adopted a completely separate sentencing system for use in the state courts. To the extent that constitutional challenges may be asserted against the existing North Carolina sentencing system, I do not believe that it is appropriate for me to comment on the potential merit of such challenges in order to avoid impairing my ability to be perceived as able to fairly and impartially decide the cases that might come before the Court of Appeals in the future. I believe that I am able to fairly and impartially decide cases coming before the Court of Appeals dealing with sentencing issues.

8. Does the North Carolina Constitution afford more rights than the federal Constitution, or the same?

The scope of the rights granted under the federal and state constitutions as construed by the United States Supreme Court and the Supreme Court of North Carolina varies from provision to provision. As a result of the fact that the language of Article I of the North Carolina Constitution differs from the language found in the Bill of Rights to the federal constitution, the subjects addressed in the two documents are not necessarily the same. Secondly, the Supreme Court of North Carolina has held that cases decided by the United States Supreme Court construing particular provisions of the North Carolina Constitution are not necessarily binding on the Supreme Court of North Carolina for purposes of construing similar provisions in the North Carolina Constitution. Instead, the Supreme Court of North Carolina makes such decisions on a case-by-case basis. In some instances, such as the speedy trial example discussed above, the Supreme Court of North Carolina has concluded that the speedy trial provisions of the United States and North Carolina Constitutions should be construed in the same manner. In other instances, the Supreme Court of North Carolina has concluded that similar provisions of the United States and North Carolina Constitutions should be construed differently. As a result, it is not possible to answer this question definitively one way or the other; instead, the answer to this question varies from clause to clause.

9. Do you think that drug courts and mental-health courts have a place in the North Carolina system? What is your opinion on "alternative sentencing" and restorative justice? Have you ever issued judgments, or advocated for judgments, that emphasize a mutual resolution between victims and defendants, and or judgments that emphasize treatment over punishment? Please be specific.

The extent to which drug courts and mental-health courts are employed in North Carolina is a decision for the General Assembly and other branches of the court system and not for the Court of Appeals. Similarly, the rules governing the imposition of sentencing, including the availability of "alternative sentencing" and "restorative justice," are, subject to constitutional limitations, established by the General Assembly rather than the Court of Appeals. Finally, except to the extent that a legal issue arising from the imposition of a particular sentence is brought before the appellate courts for decision, the actual sentencing process is conducted by the trial courts rather than the appellate courts. As a result of my decision, for the reasons stated above, to refrain from commenting on what are essentially public policy issues rather than issues relating to the functioning of the Court of Appeals, I do not believe that it is appropriate for me to comment on the extent to which the use of drug courts and mental-health courts should be expanded or whether the sentencing laws should be amended to focus on "alternative sentencing" or "restorative justice." I have, during my time as a practicing lawyer, certainly advocated for sentencing decisions that emphasized mutual reconciliation between victims and defendants and have sought to obtain drug and mental health treatment for my clients in appropriate instances.

10. What is your interpretation of the purpose of bail?

Although the primary purpose of bail is to ensure the presence of a defendant at trial, the United States Supreme Court held in United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697 (1987), that there is no absolute right to bail in all cases and that bail can be denied under the excessive bail clause of the Eighth Amendment to the United States Constitution if such a step was supported by a compelling and properly proven governmental interest, including the need to protect the public safety. As a matter of North Carolina law, G.S. 15A-533(b) provides that individuals charged with the commission of non-capital crimes are entitled to have conditions of release established. However, bail shall be denied to individuals charged with non-capital crimes who are subject to valid involuntary commitment orders, G.S. 15A-533(a), and may be denied to individuals who have been previously convicted of committing certain serious criminal offenses and have been charged with committing a drug trafficking offense while on pretrial release related to another drug trafficking charge. G.S. 15A-533(d). Bail may also be denied to individuals charged with manufacturing methamphetamines who have been proven to have a methamphetamine habit. G.S. 15A-534.6. Finally, bail may be denied for a period of time in certain domestic violence, G.S. 15A-534.1, and impaired driving, G.S. 15A-534.2, cases. As a result, while the principal purpose of bail is to ensure the presence of the defendant at trial, other factors can be taken into account in determining whether bail is appropriate and in identifying the terms and conditions under which bail should be granted under existing state and federal law. For the reasons I have set forth at length above, I do not believe that it is appropriate for me to state any opinions I might have as to the correctness or appropriateness of existing law in the area of bail.

11. Do you favor or oppose applying a plain error review to all alleged errors in capital cases? Do you favor or oppose mandating appellate review in post-conviction capital cases to help avoid arbitrariness in review of post-conviction capital cases by superior court judges? Please explain.

The North Carolina Court of Appeals has no role in the review of capital cases. Instead, direct appeals and requests for appellate review of trial court rulings on motions for appropriate relief in capital cases are handled by the Supreme Court of North Carolina. The Supreme Court of North Carolina conducts plain error review of legal claims that were not properly preserved in the trial court on direct appeal. The General Assembly has prescribed the process by which Superior Court rulings in capital postconviction proceedings are reviewed by the Supreme Court. As a result of the fact that the Court of Appeals has no role in the review of capital cases and the fact that it lacks authority to change existing law as determined by the General Assembly and the Supreme Court, I do not believe that it is appropriate for me to comment on the two issues addressed in this question.

12. Do you favor or oppose public financing of judicial races? In particular, how do you view Canon 7 of the N.C. Judicial Code of Conduct regarding the personal solicitation of campaign contributions, taking positions on issues and endorsing candidates for other offices? What changes would you make to the current system? Please explain.

I support the current public financing system that is applicable to races for seats on the appellate courts. In fact, were it not for the public financing system, I could not have mounted a serious campaign for a seat on the Court of Appeals. In my opinion, the public financing system serves a number of useful purposes. For example, it helps to minimize the public perception that campaigns for judicial office are funded by lawyers and special interests that are seeking particular results from the courts, thereby enhancing the legitimacy of the court system in the eyes of the public. Moreover, the voluntary spending limits that are part of the public financing system, coupled with the availability of rescue money, helps to depoliticize judicial campaigns to some extent. As a result, I fully support the existing judicial public financing system and would not make any changes to it at this time.

Canon 7 of the Code of Judicial Conduct, as it is currently drafted, permits judicial candidates to solicit money for one's campaign, to endorse candidates for other offices, and to take positions on what are essentially political issues. The stated purpose of the modifications to Canon 7 that were adopted a number of years ago was to attempt to balance the need for judicial candidates to campaign effectively and to exercise their constitutional right of free speech without undermining public confidence that the judicial system is able to fairly and impartially decide particular cases. I have not, for the reasons set forth above, chosen to express opinions on purely political or public policy issues despite the fact that Canon 7 would allow me to do so in order to avoid creating the impression that I cannot fairly and impartially decide the cases that ultimately come in front of the Court of Appeals. In other words, I have not taken advantage of all of the rights made available to me under the revised version of Canon 7 out of a concern that exercising the full panoply of the rights now available to judicial candidates is simply not in the long term public interest. However, the extent to which other candidates choose to adopt a similar approach is and should be a matter of individual judgment.

13. The Independent's mission is to help build a just community in the Triangle. How would your election to office further that goal?

A just community is, at least in my opinion, one that is founded on the rule of law. As a result, I believe that basic policy decisions should be made through the democratic process, as limited by the provisions of the federal and state constitutions, and that the courts should apply and enforce the law as developed through that process. A Judge of the Court of Appeals should not act for the purpose of furthering a particular political agenda. Instead, Judges of the Court of Appeals are responsible for applying and enforcing the law as enacted by the General Assembly, developed through the common law process, or enunciated through particular constitutional provisions properly interpreted using established canons of construction. As a result, the principal responsibility of a Judge of the Court of Appeals is to attempt, to the best of his or her ability, to ascertain the intent of the General Assembly in enacting particular statutory language, the intent of the courts in developing a particular common law principle, or the proper construction of a particular constitutional provision and to apply that statutory language, common law principle, or constitutional provision to the facts of a particular case regardless of his or her level of agreement with the underlying statutory language, common law principle, or constitutional provision.

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