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

Elections » Candidate Questionnaires

Sam J. Ervin, IV

Candidate for Associate Justice, Supreme Court of North Carolina


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

Full Legal Name: Samuel James Ervin, IV

Date of Birth: November 18, 1955

Campaign Web Site:

Occupation & Employer: Judge, North Carolina Court of Appeals, Administrative Office of the Courts

Bachelor's Degree Year & Institution: A.B., magna cum laude, Davidson College

JD Year & School: J.D., cum laude, Harvard Law School

Other Degrees: None

Years lived in North Carolina: 56


1. What important issues might the NC Supreme Court decide in the next term? What is your position on those issues?

In order to answer Question No. 1 as written, I would have to predict what issues will arise before the Supreme Court of North Carolina and indicate how I would resolve cases involving those issues in the event that I was to be elected to the Supreme Court. According to Canon 5.C(6) of the Code of Judicial Conduct, "[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. . . ." The purpose of this requirement is to ensure public confidence in our judicial system by prohibiting judges from prejudging or appearing to prejudge issues that may come before the court on which they serve. A party to a case heard before the Supreme Court would never believe that a judge who had taken a position on how an issue likely to come before the Court should be resolved in that case could possibly be fair and impartial. As a practical matter, any case which the Supreme Court decides "in the next term" is, almost inevitably, pending in the trial courts or the North Carolina Court of Appeals at the present time. Thus, since providing an answer to Question No. 1 would place me in violation of Canon 5.C(6) of the Code of Judicial Conduct, I decline to answer this question.

2. What qualifies you to serve?

I believe that I am qualified to serve as a Justice of the Supreme Court of North Carolina based upon my education and professional experience. After graduating with honors from Harvard Law School in 1981, I practiced law with the Morganton, North Carolina, firm of Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., and its predecessors from 1981 until 1999. During that time, I was involved in handling a wide variety of civil, criminal, and administrative matters, including many appeals to the Court of Appeals and the Supreme Court. In 1999, I was nominated for a seat on the North Carolina Utilities Commission by Governor James B. Hunt, Jr., and confirmed by the General Assembly. From 1999 until 2009, I served as a member of the Utilities Commission, which is responsible for regulating the rates charged and service provided by privately-owned electric, natural gas, telecommunications, and water and sewer companies and which functions very much like a court. During my tenure as a Utilities Commissioner, I served as Chair of the Committee on Electricity of the National Association of Regulatory Utility Commissioners. In 2008, I was elected to the Court of Appeals, on which I have served since early 2009. As a Judge of the Court of Appeals, I have written almost 350 opinions and have been involved in deciding over 900 cases. I believe that an analysis of my opinions indicates that I have the ability to decide individual cases in a fair and impartial manner without attempting to further any particular political or ideological agenda. Deciding cases in that manner is the ultimate responsibility of any judicial official.

3. How do you define yourself politically? How does that impact your judicial approach?

I do not believe that appellate judges should attempt to effectuate a particular political or ideological agenda in deciding specific cases. Instead, I believe that the work of an appellate judge involves an effort to decide specific cases based on a fair, impartial, and dispassionate effort to apply the existing law to a particular set of facts. My career as a member of the Utilities Commission and as a Judge of the Court of Appeals demonstrates that I make every effort to decide cases in that manner. I have not hesitated to rule against any particular party or interest in the event that my understanding of the law and the facts caused me to conclude that such a ruling would be appropriate. On the other hand, I have not hesitated to rule in favor of any particular party or interest if I thought that the law and the facts called for such a result. I have typically declined to comment on the merits of particular policy-related questions during both my campaign for the Court of Appeals in 2008 and my campaign for the Supreme Court in 2012 because the political views of a particular member of the judiciary should not affect the manner in which that person decides a particular case and because expressing opinions concerning such issues could impair public confidence in the fairness and impartiality of the judicial system.

4. What have been your most important decisions in your current capacity?

I have written almost 350 opinions during my service as a Judge of the North Carolina Court of Appeals. Among the opinions that I have written are Guyton v. FM Lending Services, in which the Court allowed an unfair and deceptive trade practices claim based on the defendant's failure to disclose that the plaintiff's property was located in a flood plain to proceed despite a claim of federal preemption; State v. Ward, in which the Court held that the State was not entitled to introduce evidence that a particular pill was an illegal controlled substance based on a visual examination rather than a chemical test; Fischer v. Catawba Development, in which the Court allowed piercing of the corporate veil in reverse; Newcomb v. Carteret County, in which the Court addressed issues arising from a dispute over rights in a harbor constructed by the United States Corps of Engineers; Hibschman v. Hibschman, in which the Court addressed the extent to which parents were entitled to waive the necessity for showing changed circumstances in child custody disputes; Sugar Creek Charter School v. State, in which the Court rejected a constitutional challenge to the statutory provisions precluding charter schools from obtaining access to school construction monies; Preserve Holdings v. Superior Construction, in which the Court determined the proper construction of a lien waiver provided by a contractor to a financial institution; and Hill v. Stubhub, in which the Court held that a website was immune from liability arising North Carolina's ticket scalping statutes under federal law. I would also point Independent readers to my recent dissent in Applewood Properties v. New South, which addressed the reach of the Sedimentation Pollution Control Act and indicated my belief that entities could be held liable under the provisions of the SPCA despite the fact that no sediment entered a body of water.

5. What do you feel was the U.S. Supreme Court's most important recent decision? Did you agree with the majority?

The United States Supreme Court regularly makes decisions addressing many important issues of federal constitutional and statutory law. As a result of the fact that the Supreme Court's decisions invariably involve important legal issues, it is difficult select a single decision or group of decisions as the most important. Among the recent decisions that I believe to be of particular importance are a series of Supreme Court opinions addressing issues relating to independent expenditures made in support of political candidates, such as Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), and Arizona Free Enterprise Club's Freedom PAC v. Bennett, ___ U.S. ___ (2011). The decisions in question have eliminated most, if not all, of the restraints concerning the nature and extent of such independent expenditures and invalidated provisions of state public financing programs that authorized the provision of rescue money to publicly-financed candidates faced with independent expenditure efforts on behalf of their opponents. As a result of the fact that I may be called upon to make a decision applying the principles enunciated in these decisions at some point in the future, I do not believe that it would be appropriate for me to express an opinion concerning the extent, if any, to which these decisions do or do not reflect an appropriate understanding of the free speech principles of the First Amendment. Although such expenditures may be legal, I am very concerned about their impact upon the continued practical viability of North Carolina's judicial public financing program and believe that the ultimate effect of these decisions will be increasingly expensive and politicized judicial races, an outcome which is likely to adversely affect the perceived independence of our judiciary and result in increased public cynicism about the extent to which judges do, in fact, make fair, impartial, and non-political decisions in specific cases.

6.The U.S. Supreme Court overruled a North Carolina Supreme Court decision about whether a youth's age is relevant when deciding whether a person being questioned by police is in custody. If a person is in custody, that triggers the need for a Miranda warning. The state supreme court had ruled a 13-year-old special education student was not in custody, and thus not required to have a Miranda warning when he was pulled from a middle school classroom and questioned by police. The U.S. Supreme Court disagreed. What is your opinion of the U.S. Supreme Court decision? What are the unique vulnerabilities of juveniles in determining their constitutional rights?

I have consistently declined to comment on the merits of specific decisions of the United States Supreme Court or the Supreme Court of North Carolina during my candidacy for election to the Court of Appeals in 2008 and the Supreme Court in 2012. I have adopted this stance because I believe that expressing support for or disagreement with such decisions might create the impression that I could not fairly and impartially apply the law in future cases. For example, in the event that I was to express agreement with the decision referenced in Question No. 6, a party seeking to defend against a claim that a statement allegedly taken in violation of the principle enunciated in that case should be excluded from evidence could reasonably be concerned that I would be unable to fairly evaluate the validity of that party's contention. Similarly, in the event that I was to express disagreement with the decision referenced in Question No. 6, a party seeking to have a statement allegedly taken in violation of the principle announced in the case in question excluded from the record could reasonably be concerned that I would be unable to fairly evaluate the validity of that party's contention. As I understand the decision at issue in Question No. 6, the Supreme Court relied, in part, on concerns that juveniles were less mature and responsible than adults; lack sufficient experience, perspective, and judgment to recognize and avoid erroneous choices; and are more vulnerable to pressure or coercion than more mature individuals and the fact that these differences have been recognized in many different areas of the law for a long period of time.

7. Do you feel that North Carolina's current system of judicial elections serves the state well? Are there other forms of selecting judges you feel would function better or worse than the current one?

All systems for selecting judges attempt to balance the need for judicial independence against the need to ensure accountability. In the event that North Carolina continues to select judges by open election, I believe that the current system, which relies on nonpartisan, publicly financed elections, is superior to any other electoral system. However, the continued viability of this system is under serious attack this year as the result of the fact that various interests, many of whom appear to support the reelection of my opponent on political or ideological grounds, have begun making independent expenditures, at least one of which involves anonymous money derived from an out-of-state source, in support of his candidacy. For the reasons that I have already noted above, I believe that this development is a very unfortunate occurrence and poses a threat to the existence of an independent, non-political, non-ideological judiciary. In the event that the existing system for selecting judges was to be changed, I would be inclined to favor an approach under which any vacancy (regardless of the manner in which it arose) would be filled by judicial appointment. The appointee would then be given a sufficient opportunity to serve in the position to which he or she had been appointed before being required to stand for election. At that time, the appointee would be required to run for reelection in an open, non-partisan, publicly-financed election. The winner of that election, in turn would serve for a full term, at which point he or she could be retained in office depending on the results of periodic retention elections. I believe that such a system reasonably balances the competing considerations inherent in developing an appropriate judicial selection system.

8. There have been a number of legislative actions regarding the death penalty, including the passage of an amended version of the N.C. Racial Justice Act. How should the N.C. Supreme Court interpret and apply this version of the Racial Justice Act? What are the implications of this law for the court?

As I have previously indicated, Canon 5.C(6) of the Code of Judicial Conduct prohibits a judicial official from commenting on issues that are pending in the North Carolina judicial system or involve questions of North Carolina law. The proper interpretation of the Racial Justice Act is almost certain to come before the Supreme Court in the near future. For that reason, it would be inappropriate for me to comment upon the manner in which the Supreme Court should address issues arising under the Racial Justice Act or the implications of the Racial Justice Act for the Supreme Court. As a result, I decline to answer Question No. 8.

9. The establishment of the N.C. Innocence Commission and other actions have recently been taken to minimize the risk of incarcerating innocent people. Is the problem of innocents convicted of crimes as significant as these actions would seem to indicate? What, if anything, can you do as a judge to improve the system in this regard?

I am unable to quantify the extent to which innocent people have been convicted of and incarcerated for committing serious criminal offenses in recent years. However, there have been a number of cases in the last decade in which relief has been granted from convictions for serious criminal offenses. Aside from constituting a miscarriage of justice in the specific cases in which such wrongful convictions occurred, there can be no question but that the wrongful conviction of any individual damages public confidence in the entire judicial system. Although determinations of guilt or innocence are the responsibility of juries rather than judges, judges should properly enforce the fundamental constitutional and statutory provisions that exist for the purpose of ensuring that an accurate determination of guilt is made at trial, on appeal, and in postconviction proceedings in order to assure that no wrongful convictions occur and that relief is granted from any wrongful conviction that does, in fact, occur.

10. Have you ever recused yourself from a case or, as a lawyer, faced a conflict of interest? Please describe the case.

I have attempted to comply with the Rules of Professional Conduct during the time that I practiced law and with the Code of Judicial Conduct during my service as a Utilities Commissioner and as a Judge of the Court of Appeals, both of which address conflict of interest issues. In accordance with those rules, I declined to accept employment in certain cases during my career in private practice and declined to sit on particular cases during my service as a Utilities Commissioner and a Judge of the Court of Appeals in which I was concerned that I might be subject to an impermissible conflict of interest. By way of example, I declined to hear cases involving a former client during the early portion of my service as a Utilities Commission and to hear cases arising from the Utilities Commission during the early part of my service on the Court of Appeals. Similarly, I have declined to hear cases involving parties for whom a relative by blood or marriage worked during my service as a Judge of the Court of Appeals. I am constantly aware of the need to avoid impermissible conflicts of interest and will continue to be careful to comply with the applicable provisions of the Code of Judicial Conduct in the event that I am elected to the Supreme Court.

Add a comment