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

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Sam J. Ervin, IV

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Full Legal Name: Samuel James Ervin, IV
Name as it Appears on the Ballot: Sam J. Ervin, IV
Office Sought/District: Associate Justice, Supreme Court of North Carolina
Party: Nonpartisan Race
Date of Birth: November 18, 1955
Home Address: 517 Lenoir Street, Morganton, NC 28644
Mailing Address (if different from home): Same
Campaign Web Site: www.ErvinforSupremeCourt.com
Occupation & Employer: Judge, North Carolina Court of Appeals;
Administrative Office of the Courts
Years lived in Durham: NA
Home Phone:
Work Phone: Campaign – 919-821-3928
Email: JudgeErvin@ErvinforSupremeCourt.com

1. If you have made pledges, taken positions or otherwise commented on how you might rule in office, what are your top three priorities or issues of concern for the coming term?

I have not, for reasons that are explained in greater detail later in this questionnaire response, commented upon specific legal issues that I might be called upon to address in the event that I am elected to the Supreme Court. If I am given the opportunity to serve the citizens of North Carolina as a member of the Supreme Court, my priorities will be to fairly and impartially decide each case that comes before the Court based solely on a dispassionate application of the law to the facts, to treat everyone as equal under the law, and to support the existence of an independent judiciary that does not attempt to further any sort of political or ideological agenda.

2. What in your record as a public official or other experience demonstrates your ability to be effective on the bench? This might include career or community service; be specific about its relevance to this office.

I believe that I am qualified to serve as a Justice of the Supreme Court of North Carolina based on my education and professional experience. After graduating with honors from Davidson College in 1978 and 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 North Carolina Court of Appeals and the Supreme Court of North Carolina. 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 North Carolina Court of Appeals, on which I have served since early 2009. As a Judge of the Court of Appeals, I have written more than 550 opinions and have been involved in deciding over 1,500 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. The INDY’s mission is to help build a just community in the Triangle. How would your election to office help further that goal?

I believe that the role to be played by the judicial system in securing a just community is to fairly and impartially adjudicate all cases that come before the courts and to apply the law equally to everyone. After all, the law is the glue that holds society together. However, the legal system cannot work properly without fair, impartial, and independent judges. Such a judge listens carefully to all sides, thoroughly studies the record and the law, understands that each decision that he or she makes has real impact on real people and that everyone is entitled to be treated equally, and resolves cases on the basis of a dispassionate application of the law to the facts without attempting to further any particular political or ideological agenda. I believe that my work as a member of the Utilities Commission and the Court of Appeals shows that I can decide the cases that I am called upon to handle fairly and impartially without political or ideological bias, clearly explain the reasons that underlie the decisions that I have made, and identify and fairly address complex proceedings of the type that regularly come before the Supreme Court.

4. Identify a principled stand you might be willing to take if elected that you suspect might cost you some popularity points with voters.

The work of an appellate judge involves deciding specific cases based solely on an examination of the factual record and the fair and impartial application of the law to the facts. According to Canons 2.A and 3.A(6) of the Code of Judicial Conduct, members of the judiciary are enjoined against engaging in any conduct that might adversely affect public confidence in the fairness and impartially of the judiciary and are specifically prohibited from commenting upon the merits of pending cases. In light of those fundamental ethical principles, I believe that it would be improper for me to discuss what I might do in a future case as well. As a result, I believe that I am prohibited from answering the question as it has been posed. However, I also believe that an examination of my record as a member of the Utilities Commission and the Court of Appeals establishes that I have not hesitated to do what I thought was called for by the applicable legal authorities without being concern about the possible reaction of others and that I do have not attempted to effectuate any sort of political or ideological agenda in deciding specific cases.

5. Do you favor or oppose public financing of judicial races? Please explain. What changes would you make to the current system to improve it?

I joined most of the other sitting judges on the Court of Appeals in asking the legislature to continue the non-partisan, publicly-funded campaign financing program for appellate judicial races which had been in place since 2004. However, the General Assembly did not honor that request and, instead, eliminated the judicial public financing system. This change in the law means that I, and other candidates for appellate judicial positions, must now raise large sums of money in order to inform and educate voters and to defend ourselves against attacks paid for by ideologically-based political organizations like the ones that spent over $3,500,000 to defeat me in 2012. 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.

6. 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 North Carolina 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 North Carolina 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 certain of my relatives by blood or marriage worked during my service as a Judge of the North Carolina 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 of North Carolina.

7. The passage of mandatory minimum sentencing laws has removed some of the discretion judges, juries and prosecutors used to exercise in the sentencing phase of criminal trials. Should judges have more or less flexibility in the sentencing phase than currently allowed under North Carolina law? Please explain.

The procedures used during the criminal sentencing process, the length of the sentences applicable to specific criminal offenses, and the amount of discretion available during the sentencing process is, subject to applicable constitutional limitations, a policy matter committed to the legislative, rather than the judicial, branch of government. As a general proposition, I have refrained from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. In addition I believe that Canons 2.A and 3.A(6) of the Code of Judicial Conduct prohibits me from commenting about legal issues which are or may become pending in the state and federal courts in North Carolina, including the extent to which our current sentencing system satisfies applicable constitutional requirements. As a result, I do not believe that it would be appropriate for me to comment on the extent to which the current sentencing statutes afford sufficient discretion to judges and other relevant persons.

8. In this new technological world, do you perceive a conflict between government surveillance and the need to protect an individual’s privacy?

The advent of new technologies has clearly enhanced the ability of governmental agencies to undertake surveillance of the activities of individuals and groups. An obvious effect of the enhanced surveillance capabilities available to governmental agencies is a risk that individual privacy will be reduced. All Americans have valued their right to be free from undue interference by other individuals, organizations, and governmental agencies. The extent to which the privacy rights of individuals are protected from the enhanced surveillance opportunities available to governmental agencies stemming from recent technological advances is determined by both policy-making decisions made by legislative bodies, such as Congress and the General Assembly, and constitutional decisions made by the judicial branch. As I have already explained, I believe that judicial officials should refrain from commenting on legal issues, such as the extent to which individual privacy rights are protected by the provisions of the state and federal constitutions, that might come before them by Canons 2.A and 3.A(6) of the Code of Judicial Conduct. In addition, for the reasons I have previously explained, I have refrained from commenting upon policy-related issues during my campaign for the Supreme Court in order to avoid impairing the public perception that I have the ability to fairly and impartially decide specific cases based solely on a dispassionate application of the law to the facts. Thus, I do not believe that it is appropriate for me to provide a more specific response to this question than I have set forth in this paragraph.

9. What are your thoughts about criminal culpability for young people? Is the North Carolina criminal justice system treating them appropriately?

Both the political and judicial branches of government have been called upon to examine the appropriate treatment of juvenile offenders in recent years. Among other things, the General Assembly has considered the adoption of legislation that would have the effect of increasing the age at which juveniles are treated as adults for purposes of determining criminal liability. In addition, the United States Supreme Court and other judicial bodies have handed down a number of recent decisions concerning the extent to which certain punishments can be imposed upon juveniles. As I have already indicated, I believe that Canons 2.A and 3.A(6) of the Code of Judicial Conduct prohibit members of the judiciary from commenting upon issues that might come before the court on which he or she either currently sits or is seeking to sit. In addition, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. As a result, I do not believe that it would be appropriate for me to comment on the extent to which the legal principles and statutory provisions governing the extent to which juveniles should be treated as adults for purposes of establishing criminal culpability should be changed or whether the criminal culpability of younger offenders is currently addressed by our legal system in an appropriate manner.

10. Does the death penalty place an undue financial burden on the courts? If so, assess the impact.

According to numerous decisions by the United States Supreme Court, individual states have the power to authorize the imposition of the death penalty as punishment for a limited category of offenses. The costs of death penalty litigation, including the cost of providing court-appointed counsel and the thorough judicial review that has been deemed appropriate in such cases have been documented in various studies. The impact of the existence of these costs on the appropriateness of the death penalty is, however, a policy-related question for the General Assembly rather than a legal question committed for resolution to the judicial system. As I have previously indicated, I have refrained from commenting upon policy-related questions during my campaign for the Supreme Court in order to avoid creating a perception that I am unable to fairly and impartially decide specific cases based upon a dispassionate application of the law to the facts. Thus, I do not believe that it would be appropriate for me to comment upon the extent to which the costs associated with death penalty litigation place an undue burden on the judicial branch of government.

11. Justice Department Officials had instructed federal prosecutors across the country not to focus federal resources on individuals who were complying with state laws regarding the use of medical marijuana. As a judge, do you find this philosophy confusing?

The Justice Department is responsible for supervising prosecutions in the federal, rather than the state, courts. For that reason, the instructions that the Justice Department has given to federal prosecutors concerning the extent to which the federal government should attempt to prosecute individuals or organization that comply with state medical marijuana laws have no bearing on the manner in which state courts, including the Supreme Court of North Carolina, handle marijuana-related cases. Instead, the extent to which particular states choose to allow or prohibit the medicinal use of marijuana is a policy-relating matter committed to the General Assembly rather than to the North Carolina appellate courts. As I have previously indicated, I have refrained from commenting upon the manner in which the General Assembly should resolve policy-related questions during my campaign for the Supreme Court in order to avoid creating a public perception that I am unable to fairly and impartially decide specific cases based upon a dispassionate application of the law to the facts. As I result, I do not believe that it is appropriate for me to comment on the appropriateness or clarity of the instructions that the Justice Department has given to federal prosecutors relating to individuals or organizations acting in compliance with state medical marijuana laws.

12. The law offers special protections to racial and ethnic minorities. Are members of the LGBT community sufficiently protected?

The legal protections available to members of the various communities that make up our society are derived from both constitutional principles and statutory provisions enacted by the General Assembly. I strongly believe that everyone is entitled to be treated equally under the law and that a failure to treat everyone as equal under the law would render our society a literally lawless one. As I have already indicated, Canons 2.A and 3.A(6) of the Code of Judicial Conduct prohibit me from commenting upon legal issues that might come before the North Carolina courts. In addition, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. As a result, I do not believe that it would be appropriate for me to comment on the extent to which members of the LGBT community are adequately protected under existing law or to which existing law should be modified to provide additional protections for members of the LGBT community.

13. Has the current process for redistricting served the State well?

The redistricting process has both policy-related and legal implications. The process by which North Carolina’s congressional and legislative districts have been established has been a fruitful source of litigation for the last several decades. As I have already indicated, I have refrained from commenting upon policy-related issues on the theory that participating in such discussions might impair public confidence in my ability to fairly and impartially decide specific cases based solely on a dispassionate application of the law to the facts. In addition, I believe that Canons 2.A and 3.A(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 that may come before the judicial system in the future. The question regarding the constitutionality of the most recent redistricting plans is currently pending before the Supreme Court. As a result, I do not believe that it would be appropriate for me to comment on the issue addressed in this question.

14. Have the legislative branch unduly depleted the power of the judicial branch in terms of civil procedure?

The General Assembly does, under the North Carolina Constitution, have the authority to prescribe rules governing the procedures employed in the trial courts and enact statutes affecting the jurisdiction of the Court of Appeals and the District Court. On the other hand, however, the North Carolina constitution provides that the judicial power is vested in the judicial branch, rather than the General Assembly, and prohibits the General Assembly from impairing the ability of the judicial branch to exercise the judicial power. Thus, the extent to which any attempt on the part of the General Assembly to prescribe rules for the operation of the trial courts adversely impacts the ability of the judicial branch to exercise the judicial power involves a constitutional question that may come before the judicial branch for decision. As a result, given that I believe that I am prohibited by Canons 2.A and 3.A(6) of the Code of Judicial Conduct from commenting upon issues that might come before the North Carolina courts for decision, I do not think that it is appropriate for me to comment on the extent, if any, to which the General Assembly has impaired the right of the judicial branch to exercise the judicial power by enacting rules governing the operation of the courts.

15. There is not complete judicial uniformity across the state; some jurisdictions, for example, have family and drug courts while others do not. Are we meeting the needs of the entire state?

The level of funding that has been provided for the judicial branch in recent years has, as a percentage of total state expenditures, been shrinking in recent years. At the same time, the level of fees charged to litigants as steadily increased. The effect of these funding changes has been to affect the availability of specialized courts of the type referred to in this question. Although I have heard very good things about the work of the family and drug courts and believe that they should be available in those districts in which such courts are deemed by local officials to be desirable, I would be loath to mandate that such courts be made available in each judicial district across the state without regard to the wishes of local court officials. Against that background, however, it would be my hope that the General Assembly would fund such specialized courts in those judicial districts that deem them desirable without adversely affecting other judicial operations.

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