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As cases soar, emergency judges keep courts moving

Judge Nancy Gordon emerges from a concealed door behind the bench into Courtroom 5A. No one notices her, except for the bailiff, who stands and commands, “All rise!” 

“This honorable court for the County of Durham is now open and sitting,” the bailiff says on this morning in early October. “The Honorable Judge Nancy Gordon presiding.” 

During the bailiff’s cry, Gordon, 67, walks the few feet to the judge’s chair. She wears thin-frame glasses, and her short brown hair, with a faint white streak, is tied back. Her black robe engulfs her. 

She takes a laptop out from under her arm and places it on the desk. Lingering for a moment, she stands with a hand on the chair. The pause lasts just long enough that when the courtroom sits down after the cry, she does too. That way, they all sit in unison.  

It’s a familiar ritual, one Gordon first took part in for decades as a family law attorney, then practiced as a Durham District Court judge. As a jurist, she has never known if she’s supposed to sit or stand during the cry. That’s still the case now that she’s an emergency judge. 

When sitting judges are unavailable, emergency judges step in to keep the court system — and its ever-growing caseload — moving. Unlike sitting judges, however, they aren’t voted onto the bench by constituents in partisan elections. Most lost their bids for re-election, like Gordon in 2014, or chose not to run for another term. 

On the bench, emergency judges hold the same judicial power they did as elected officials. But there’s no longer the subtle pressure of re-election, or the hovering spectre of a constituency. There’s only the expectation to administer justice fairly and objectively. Before each court session, the bailiff’s cry reminds Gordon of this responsibility.

“Really what [the bailiff’s cry] is about is the institution, not the person,” Gordon said. “You’re representing one of the branches of government, and that’s a whole lot bigger than you.” 

‘I don’t own the court system the way I used to’

When Gordon lost re-election’, she spent 90 days away from the bench — the minimum time before she could apply to be an emergency judge. 

Once an emergency judge is placed on an active list, the North Carolina Administrative Office of the Courts (AOC) and the chief justice of the state supreme court can assign them to hold court for several reasons, including if a judge goes on medical leave, if a case overload occurs due to a vacancy, or if a judge recuses themselves. 

Emergency judges’ schedules are unpredictable. They may serve in any county in the state, unlike sitting District Court judges. Gordon has spent a single day in some courtrooms; in other courthouses, weeks. 

Gordon was assigned to oversee domestic violence cases in Durham for a week in October. Since August, she has filled in for former District Court Judge Brian Wilks after his promotion to Superior Court.

On Oct. 13, Gordon is sharp and quick. One attorney requests that today be her client’s last appearance for a two-month long case. Without looking up, Gordon cuts her off and snaps, “I’m not marking it last.” They schedule another appearance.

Gordon runs through the afternoon’s 37 cases with remarkable speed. 

Once, she raises her voice at a witness who filed a complaint against the mother of his son. 

“Do you know where your eight-year-old goes to school? Do you have custody papers?” Gordon chides. “If you really want your son to live with you, you should know how he’s doing in school.” 

He tells Gordon that his son is playing the guitar at an upcoming talent show, and her tone softens. She asks if he and the mother can stay 500 feet apart at the event. 

Gordon commands the courtroom, in part because of her familiarity with Durham. But over the last seven years, the state has changed — and so has her work. 

She doesn’t know the younger lawyers, and they don’t know her. When she gets assigned to other counties, they don’t know what to expect from her. Smaller counties welcome visiting judges, but “in a sort of sucking up way that makes me a little uncomfortable.” 

“I don’t own the court system the way I used to,” Gordon said. 

By this she means she isn’t overseeing cases as often as she did as a District Court judge. But if owning the system also means making judicial decisions without the stress of re-election, Gordon might own the system more now than she ever did. 

‘It was like watching heads explode’

In North Carolina, defendants who participate in the state’s community service program must pay a $250 fee. But many can’t come up with the funds, Gordon said. Instead in Durham, judges order community service at a non-profit.

So that’s what Gordon ordered when she went to oversee criminal court in Alamance County, a region in north-central North Carolina that leans Republican. 

“It was like watching heads explode,” Gordon said, laughing. “They’d never seen this before. And I’m sure they were thinking, ‘Who is this progressive judge coming from Durham, that little blue hole?’” 

She could do that because she doesn’t plan to run for office again. As an emergency judge, Gordon doesn’t wonder if the lawyers like her judicial philosophy and will vote for her re-election, she said. She doesn’t worry about how she’ll raise campaign funds. And she doesn’t have to fret about whether someone will challenge her in the next election. 

“I just need to be on the right side of judicial standards, which makes me feel a little more independent about some of the things I can do and not do,” she said. “I just have to do the job that I think is a good job.” 

Re-election is an unspoken concern among sitting judges. Another emergency judge, Lunsford Long, noted that sometimes, sitting judges recuse themselves from a “hot-button type of case that’s going to have political ramifications.” 

“So [the AOC] calls in an emergency judge and says, ‘Look, you’re not an elected judge. You’re not from here. Why don’t you come down here and resolve this mess,’” said Long, who served as an elected judge from Orange County from 2009-2016. “[Judges] wouldn’t say that they’re [concerned about re-election], but that’s obviously what’s going on when they want to duck the case.” 

Attorneys who work in the same courtroom daily also grow familiar with their judges. Sometimes they become too familiar, which makes arguing cases in front of an emergency judge difficult, said Christy Malott, a senior staff attorney at JusticeMatters, an advocacy non-profit. 

If Malott knew who the emergency judge was ahead of time, she altered her presentation: the aspects she focused on, the way she presented evidence. She called attorneys in other counties and asked, “Who knows this judge? What do I need to know in order to do a good job?” 

“Bringing in a new judge can make it a little bit harder, but the alternative is that all those cases don’t get heard,” Malott said. “The calendar gets more and more backed up.”

‘Court should still be able to work’

In 2017, the number of emergency judges was hacked by two-thirds in a General Assembly budget cut. 

The AOC did not respond to requests for comment and recent data on the number of emergency judges in time for publication. 

Gordon, who views her role as an “experienced, knowledgeable backup,” believes the state should make more emergency judges available. Sitting judges bear caseloads that are too large and practice too little self-care, she said. 

“Judges should be able to take a vacation and their court should still be able to work,” she said. 

In the middle of Gordon’s October session, a defendant doesn’t know the name of his public defender. She tells him that it’s Barbara Lagemann and recommends that he meet her before his next court date, which Gordon schedules for Nov. 30. 

As he turns and begins to walk out of the courtroom, Gordon yells, “When’s your next court date, sir?” 

He’s startled. Over his shoulder, he mumbles, “November 30th.” 

Grinning, Gordon throws up her arm and gives a thumbs up: “You’re free to go.” 

Being a judge is solitary work. If you do it right, Gordon said, the job is also exhausting. Yet none of that deters her.

“Retirement’s not all it’s cracked up to be,” she said. “I like keeping my head active. I like being a judge.” 

PHOTO ABOVE: Judge Nancy Gordon has been an emergency judge since losing a re-election bid in 2014.

Correction: An earlier version of this story misspelled Barbara Lagemann’s last name.