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Judge of the North Carolina Court of Appeals (Tyson seat)

Date of birth

November 18, 1955

Occupation

Commissioner, North Carolina Utilities Commission

Address

517 Lenoir Street, Morganton, North Carolina 28655

Web site/e-mail address

www.ervinforcourtofappeals.com

ervingarden@bellsouth.net

Education

I attended the Burke County public schools and received my high school diploma from Freedom High School in Morganton, North Carolina, in 1974.  I received an A.B., magna cum laude, from Davidson College in 1978 and a J.D., cum laude, from Harvard Law School in 1981.

Elective experience

I have not previously held elective office.  I have, however, served as a member of the North Carolina Utilities Commission since 1999.  I was nominated by Governor James B. Hunt, Jr., for my first term on the Utilities Commission and confirmed by the General Assembly in 1999.  I was nominated by Governor Michael F. Easley for my second term on the Utilities Commission and confirmed by the General Assembly in 2007.

Professional credentials (specialized training or experience)

I engaged in the general practice of law with the Morganton, North Carolina, firm of Byrd, Byrd, Ervin, Whisnant, McMahon and Ervin, P.A., and its predecessors from 1981 until 1999.  While in private practice, I handled a wide variety of civil and criminal cases in the state and federal courts and before state administrative agencies, including serious criminal cases, personal injury cases, contract and other business-related disputes, and utility rate cases.  I have been involved in numerous jury trials and have handled many appeals to the Supreme Court of North Carolina and the North Carolina Court of Appeals.

Family

I am the oldest son of Sam J. Ervin, III (who is now deceased), and Elisabeth C. Ervin.  I am married to Mary Temple Ervin and have two-step sons (Davin Patrick Coutu and Kelly Stephen Coutu) and two sons (Samuel James Ervin, IV, and Michael Worth Ervin).

Why have you chosen to run for this office?

I have had a long-standing interest in serving as an appellate judge, which stems, at least in part, from my desire to use my legal skills in the service of the citizens of North Carolina.  I became a candidate for election to the North Carolina Court of Appeals because I believe that my education, training, and experience qualify me to help the Court of Appeals decide the cases that appear on its docket in a fair and even-handed manner consistently with the provisions of the United States and North Carolina constitutions, the statutory provisions adopted by Congress and the General Assembly, and the common law principles enunciated by the Supreme Court of North Carolina and the North Carolina Court of Appeals. 

What about your training and experience qualifies most qualifies you for this position?

The Court of Appeals is the generalist in the North Carolina judicial system.  According to North Carolina law, all appeals from judgments entered by the District and Superior Courts and from decisions by certain administrative agencies like the Utilities Commission and the Industrial Commission go to the Court of Appeals.  The only exceptions to this general rule involve utility general rate cases, cases in which a death sentence has been imposed, and cases in which the Supreme Court of North Carolina grants a "by-pass" motion, all of which go directly to the Supreme Court of North Carolina.  As a result, a Judge of the Court of Appeals has to be able to decide cases involving virtually all areas of the law.  As I indicated above, I handled a wide variety of different types of cases while in the private practice of law, so that I have experience addressing many types of legal issues.  In addition, a considerable portion of my law practice included handling cases before the Supreme Court of North Carolina and the Court of Appeals, including death penalty cases, personal injury cases, contract cases, business disputes, and utility rate cases.  As a result, I am generally familiar with the procedures followed by the appellate courts in this state and believe that I understand the appellate process.  Finally, I have nine years of what amounts to judicial experience.  Although the Utilities Commission is not technically a court, it performs an essentially judicial function.  As it decides the cases on its calendar, the Utilities Commission rules on pretrial procedural motions, hears evidence, makes evidentiary rulings, studies briefs and proposed orders, makes legal and factual rulings, and issues lengthy orders that resemble appellate opinions in many ways.  The cases heard by the Utilities Commission include exceedingly complex matters that require a careful study of the record, a thorough understanding of a difficult area of the law, and the ability to render fair and balanced decisions.  Because of the breadth of my legal experience and the fact that I have performed what is tantamount to a judicial function for the past nine years, I believe that my training and experience qualifies me to serve on the North Carolina Court of Appeals.

What do you see as a particular strength of our court system?

The American judicial system in general and the North Carolina courts in particular are required to handle a wide variety of different types of cases in a fair and expeditious manner.  The basic premise underlying the entire concept of the "rule of law" is that the members of the public are given clear guidance as to their legal rights and obligations from legislative bodies and the courts and that the courts can be counted on to fairly and consistently determine when a particular party has or has not complied with the law and take appropriate action.  At bottom, the courts perform a dispute resolution process in which judges and juries are called upon to decide the legal rights of contending parties.  The law cannot perform this function effectively unless its decisions are both fair and impartial in fact and perceived by the members of the public to be fair and impartial.  The legitimacy afforded to decisions made in the court system by the citizens of the United States and North Carolina suggests that, in most instances, the public believes that the judiciary can be counted on to make evenhanded decisions without regard to the identity of the parties or the personal beliefs of individual judges.  The general legitimacy accorded to the decisions of the judicial branch of government is, at least in my opinion, the greatest strength that the court system possesses, since the absence of general confidence in its ability to carry out its function would undermine the entire rule of law.  

Where does it fall short?

Despite its considerable strengths, the judicial system can always be improved.  The court system needs to build on its past successes and avoid situations in which it fails to carry out its fundamental mission in a fair, impartial, and effective manner.  Members of the judiciary necessarily have a major role to play in ensuring that needed improvements to the court system are made.  First, a judge needs to constantly remember his or her fundamental obligation, which is to decide specific cases in accordance with the law and the facts in a fair, dispassionate, and even-handed manner.  The court system, being a human institution, does make mistakes.  Judges need to continually strive to make sure that their individual biases and political beliefs do not affect the outcome of the cases that appear on their dockets in order to minimize the likelihood of judicial error.  Judges of all types should constantly remind themselves of this fundamental obligation and seek to carry it out every day in order to ensure that an injustice does not result.  Secondly, appellate judges need to constantly strive to write opinions that clearly explain the reason for the court's decision so that the judges of the trial courts, the members of the Bar, and the members of the general public can understand exactly what the court has determined the law to be.  Finally, the judicial system is chronically short of resources, so judges should strive to do what is humanly possible to make sure that other governmental institutions understand and adequately fund the court system.  

What can be done to help the public better understand the role of our appellate courts?

The public fails, in many instances, to fully understand the role of the appellate courts in our form of government.  For example, many members of the public operate under the impression that the appellate courts have what my father, who was a state and federal judge for many years, used to call "a roving commission to do justice" instead of an obligation to fairly and honestly apply legal principles adopted, for the most part, by the political branches of government to the facts of specific cases.  Other members of the public appear to be under the impression that appellate courts do more than review trial court decisions for errors of law and that appellate courts have the authority to overturn jury verdicts simply because they disagree with them.  In view of the significant misconceptions about the role played by the appellate courts in our system of government, I believe that there are a number of things that can and should be done to ensure adequate public understanding of the role of the appellate courts.  First, members of the appellate judiciary should take advantage of all opportunities that come their way (including appropriate conversations with members of the news media) to explain the basic purpose and duties of the appellate courts.  Secondly, appellate judges should strive to make their opinions as clear as possible.  To the extent that a court's opinions are clear and well-reasoned, the public may well gain a better understanding of the role played by the appellate courts in our judicial system.  However, appellate judges cannot undertake sole responsibility for explaining the role of the appellate courts to the public.  Instead, members of the news media have an unrivaled opportunity to explain the role of the appellate courts to the members of the public.  For example, in reporting on events that occur in the court system, members of the news media can explain the procedures that appellate courts must follow, the role that the appellate courts play in the judicial system, and the limitations on the authority that has been granted to appellate courts.  I hope that appellate judges and journalists can and will cooperate in correcting some of the misapprehensions under which members of the public operate with respect to the appellate courts.    

How can you make a distinct impact on the quality of the decisions rendered by the court?

I believe that I can make an impact on the quality of the decisions rendered by the North Carolina Court of Appeals in a number of different respects.  First, I believe that I developed a reputation as a competent lawyer who had the legal ability to ably handle difficult and important cases during my time in private practice.  Secondly, as I have already noted, I was involved in a wide array of cases during my time in private practice, a fact that gives me some degree of expertise in many different areas of the law and would allow me to hit the ground running in the event that I am fortunate enough to be elected to the Court of Appeals.  Finally, I believe that I have demonstrated the ability to fairly and impartially decide complex and important cases and to clearly and thoroughly explain the basis for my decisions during my service on the Utilities Commission.  As a result, for all of these reasons, I believe that I can make an immediate contribution to the quality of the decisions rendered by the Court of Appeals.

To what extent should judges or judicial candidates express their views about the political and social issues of the day?

I do not believe that judges or judicial candidates, particularly those running for seats on the North Carolina Court of Appeals, should comment about the political and social issues of the day.  At bottom, as I have already said on a number of occasions, I believe that the fundamental role played by the members of an intermediate appellate court is to decide the specific cases that appear on the court's calendar in a fair, even-handed, and dispassionate manner.  The role of an appellate court is not, contrary to a perception held by some members of the public, to do what seems "fair" in the abstract.  Instead, the "fairness" that should be the hallmark of the decisions of an intermediate appellate court has to be based on a correct understanding of the relevant law as established, for the most part, by other institutions and a consistent and even-handed application of those legal principles in particular cases.  In determining whether the trial tribunal committed a legal error, the members of an intermediate appellate court must examine and rely on the common law principles previously enunciated by the Supreme Court of North Carolina and the North Carolina Court of Appeals, the legislative intent underlying the statutory provisions adopted by the General Assembly or Congress, and the language and purpose of any relevant state or federal constitutional provisions in light of the rules of construction adopted in prior decisions of the Supreme Court of North Carolina and the United States Supreme Court rather than on their own notions of what sound public policy should consist of.  In other words, the opinions of the judge about the political and social issues of the day should be irrelevant to the work that the court is actually called upon to perform.  In the event that a judge chose to comment on such political or social issues, I believe that he or she risks undermining public confidence in the impartiality of the judiciary, an attribute that the judiciary must maintain at all costs.  In the event that a litigant is required to have his or her case heard before a judge who has expressed an opinion about a political or social issue that is relevant to or implicated by that litigant's legal position, that litigant could understandably come to the conclusion that the judge was biased in favor of or against his or her legal position.  Such perceptions of bias can destroy public confidence in the impartiality of the judiciary.  As a result, in order to avoid creating the appearance that I would be unable to decide a particular case fairly and impartially, I have consistently declined to comment on current political or social issues during my campaign.

Who would be the one current state or federal judge you most admire, and why?

Although I admire many members of the state and federal judiciary, past and present, I would have to say that the current judge for whom I have the most admiration is Justice Stephen Breyer of the United States Supreme Court.  Although I have certainly read opinions written by Justice Breyer, my admiration for him is based on his performance as a law school professor.  I had the good fortune to have taken a course in antitrust law at Harvard Law School taught by Justice Breyer and was impressed by a number of aspects of his character and intellect during that time.  First, Justice Breyer had a deep understanding of the subject which he taught.  I later realized, as I became more heavily involved in the economic regulatory process, that his work has been immensely important to the development of modern economic regulation as well.  In other words, Justice Breyer is a true scholar.  Secondly, Justice Breyer was a wonderful teacher.  He had a gift for explaining complicated principles of law and economic theory clearly and concisely.  In addition, he was able to communicate his enthusiasm for the subject matter of the class that I took from him to the students who were taking his class.  To this day, I retain an abiding memory of Justice Breyer's teaching ability and suspect that his ability to clearly and accurately explain the principles provides clues about how to draft understandable appellate opinions.  Finally, it was clear to me from the way that he discussed particular cases that he understood the genius of the common law system, which is that each case has to be decided individually and that courts should decide cases on the basis of the applicable legal principles and the specific facts present in the case before the court rather than on the basis of some sort of grand legal theory.  I believe that the attributes that Justice Breyer exhibited in the classroom exemplify the characteristics that a judge should have.