Thinking About Judicial Pay, with Troy Shelton

Timothy Kowal, Esq.
May 23, 2023

The National Center of State Courts recently published its 2023 rankings of judicial salaries, with California and DC trading #1 and #2 spots. At a mean national judicial salary of around $174,000, by starting out in a modest condo and scrimping and saving, a judge in California might achieve the dream of homeownership just before retiring into private ADR.

But Troy Shelton notes that his home state of North Carolina ranks 45th with the mean judicial salary around $152,000. Meanwhile, North Carolina is flanked by states each averaging greater salaries by $40-50k.

Some interesting facts about judicial salaries:

đź’˛ Very few Big Law attorneys, where pay greatly exceeds judicial pay, become judges.

💲 Cost of living is tricky to account for—should metro-area judges be paid more then rural-area judges just because of where they live?

💲 In 2021 the national median 1st-year associate salary was $165,000, rivaling judicial salaries—something seems wrong here.

And some interesting differences between CA and NC procedure:

⚖ NC courts can overrule past precedent using an en banc procedure—but they’ve never used it.

⚖ NC has no anti-SLAPP law—but there doesn’t seem to be much of a SLAPP problem.

Troy Shelton’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:


Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19
And I'm Tim Kowal. Although Jeff and I are a certified appellate specialist, and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and insights they can use in their practice. As always, if you find this podcast helpful, we were grateful if you would recommend it to a colleague. Yeah, before

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Tim Kowal  1:16 
All right, Jeff, you know for today's topic, I noticed a few months ago that the National Center of state courts has published its 2023 rankings of judicial set salaries. California, obviously the home of the California appellate law podcast slipped from the number one spot in 2020 to trade spots with DC who is now has that top spot we're fairly handsomely remunerated in way of judicial salaries here in this state with a mean national judicial salary of around 174,000. If that were the case in California by starting out at a with a modest condo and scrimping and saving a California judge might be able to achieve the dream of homeownership before retiring into private ADR practice. But Troy Shelton notes that his home state of North Carolina ranks 45th in judicial pay while being flanked by states each averaging 40 to $50,000 more in annual salary. So today we're pleased to welcome Troy Shelton to talk about judicial salaries and their effect on the courts and legal practice. Troy's article is it's time to raise judicial pay in North Carolina that his column in North Carolina lawyers, Carolina paralegal news, and Troy is an appellate specialist in North Carolina. He serves as embedded appellate counsel during litigation and trial as well as obviously the appeals themselves Troy is certified by the North Carolina State Bar as an appellate specialist Troy has a wide variety of trial and appellate experience including class actions antitrust employment, land use and family law cases. Troy also frequently litigates commercial disputes in federal and North Carolina business courts and serves as a class action consultant to other attorneys. Both plaintiffs and defendants. Troy is a contributing author to the North Carolina appellate practice blog, which provides news information and tips for practicing law in North Carolina state and federal appellate courts. And Troy was a law clerk to the US District Judge Thomas D. Schroeder in the Middle District of North Carolina. Troy, welcome to the podcast. Thanks for being with us.

Troy Shelton  3:20 
Thanks. Thanks for having me.

Tim Kowal  3:21
Now, Troy, I just gave a just a little bit of background before we launch into a discussion about judicial pay and its effect on on the courts and on the bar. Tell us a little bit of background of your practice that I didn't get to in your intro.

Troy Shelton  3:34 
So I I do almost exclusively appellate law. And there's there's not too many of us doing quite that narrow of practice here in North Carolina. I didn't start out that way. I started out doing some appellate work for the man who would become later the Solicitor General for the state. And it was a different firm doing a little lytic litigation boutique here in Raleigh, North Carolina. He left in the firm to become the Solicitor General, our appellate practice or got up and was gone when he as he was gone. Then I moved over firms to I'm now at Fox Rothschild used to be a regional firm that had really the biggest appellate team here in the state of North Carolina. And we continue to be the biggest appellate team here in the state. Most of our appellate members are board certified appellate specialists. And that's what we focus on.

Tim Kowal  4:24
I was impressed that your state has your state bar has a certification program for appellate specialists, not not a lot of states have that. How long is North Carolina, the North Carolina bar had an appellate Specialist Program.

Troy Shelton  4:35
So I knew that the specialization program itself in North Carolina is one of the oldest in the country. Um, so I think we actually have we might have more specialists than just about any other state. That's what I heard recently is what the appellate specialization itself is not as old. I think it goes back to 2010 ish, maybe there abouts. So it's relatively young compared to some of the other specialties in the state and I It's a, I'd say the it's a club of about 25 or 3035. Attorneys. there abouts. Oh,

Jeff Lewis  5:07 
wow. Hey, Troy, in hearing, Tim, read your bio, there was a reference to business courts in California, the home of granola and yoga. We have, you know, the Superior Court, which is a state court. And then we have District Court, which is a federal court, we don't have something called a business court. What is that?

Troy Shelton  5:23
So our business court is you can think of a bit like chancery court in Delaware. And I think some other states have maybe begun adopting business courts, where it's a we have superior court, which is our main trial court division here. And this is sort of like a special division within the Superior Court where high dollar business disputes go and certain other sort of antitrust securities litigation, all is supposed to go into the business court. And our normal state trial court judges don't have clerks, for example, but the business court judges do. So the business court. It's a bit like being in federal district court, and many people who have business litigation cases can can be almost indifferent, really between being in business court or being in federal district court.

Jeff Lewis  6:10
Do you have the right to a jury trial in business court?

Troy Shelton  6:14
You do? You do? Yeah. Interesting. But well, to the extent your claim would already have a right to a jury trial, it's not court dependent.

Jeff Lewis  6:23 
Yeah. And do appeals for business court. Are they handled the sleigh appeals handled from the Superior Court or a district court has anything special about their business appellate panels,

Troy Shelton  6:34
so there's no business appellate panels, but so in North Carolina, we have two, we have an intermediate appellate court court of appeals. And then we have the Supreme Court of business court cases, hop over a Court of Appeals. So appeals go directly to the Supreme Court. The idea being from the late night was we want we want more business cases and more business precedent to be set, so that so that businesses will have more guidance? I'm not sure that has panned out the way the legislature had hoped. But I think that was the intent at the time.

Tim Kowal  7:05
So is it a different branch or different arm of the judiciary, by comparison, in California, we have one Superior Court or superior court for each county, and they have within them different panels, you know, for for probate and family, the general civil panel, but they're all part they're all under. They're all in the same building. They're just administratively separated, and they have their own procedures, but they're all part of the superior superior court in California. Is that similar to the way the business court works in North Carolina? Or is it as a separate entity?

Troy Shelton  7:32
It's like how you mentioned so the business court judges are also superior court judges at the same time, so they could just sit as regular superior court judges. So all the judges in our state are actually elected. But business court judges are appointed for terms by the General Assembly.

Tim Kowal  7:49
Oh, and they are not not subject to retention elections, either.

Troy Shelton  7:53 
We don't have any retention elections in North Carolina. Oh, so once, once you're elected, you're in for life. You're there for eight years a year terms. Oh, and then you're done? Oh, well, you can rerun there's a term limits, but there's no there's no normal retention election like in in other states where you there's an appointment process and then a retention election.

Tim Kowal  8:11
I say, Okay, now, we're gonna be talking about your article about raising judicial pay. In the North Carolina State State courts based on the survey of all I'll 50 or more, really more, because it counts Guam and Puerto Rico, other jurisdictions. But before we talk about state court judicial pay, tell us does that suggest that you spend more time in state courts in North Carolina? Do you do a fair amount of practice in federal courts as well?

Troy Shelton  8:36
We do a decent on federal court. But I'd say my bread and butter is being in the state appellate courts. We have multiple appeals going on a given time up in the force and not just in the Fourth Circuit. So our appellate team, which is really headquartered here in North Carolina, helps our litigators across the country. So I have, I've got to deal this down in the 11th. circuit, the Fifth Circuit, but also sometimes other states, so So I had appeal up at the South Dakota Supreme Court, but my you know, certainly the cases where I get hired for myself are normally here in North Carolina, and often in our state appellate system.

Tim Kowal  9:13 
Now on the podcast here, we talk a lot about typical mistakes that attorneys make both in the trial courts and the appellate courts, like waiving arguments or you know, failing to perfect the record on appeal, failing to order an appellate record for the appeal, filing untimely appeals or taking an appeal from a non appealable orders. Do you have the same kinds of problems that you see through the eyes of a North Carolina appellate attorney? Do you have different or novel problems that maybe other other states, California practitioners don't see?

Troy Shelton  9:42
One problem that I've seen repeated many times? You know, after a case gets dismissed a summary judgment, and then a party moves under Rule 50 Our rule 59, which is the analog to federal rule, 59 moves for a new trial, and but they're really Not it's what we will consider not an inappropriate rule 59 motion? They're actually trying to argue new things that no oh, well, you just didn't think you just didn't raise this issue. I mean, you you could have, but you didn't. So it's gone. The rule is that an improper rule 59 motion doesn't toll the time for taking to file the notice of appeal. So if if you don't really fall within one of those subsections of rule 59 for a new trial motion, then that's not going to tell you your time. And so then you're going to be out of luck on the appellate jurisdiction side, which is a huge trap for people.

Tim Kowal  10:37
That's interesting, Jeff, that reminds me of the rule here in California about invalid motions like where it doesn't, where you don't check all of the procedural boxes like a motion for reconsideration, it has to be accompanied by a declaration showing that it's based on new law or new evidence. And if you don't have that declaration, then no, no good. But are you suggesting Troy that it is, even if you tick all of the procedural boxes, if it's raising an argument that, you know, basically was weighed by not having raised it at trial, then it's not meritorious, and therefore, it's an invalid motion and doesn't get told the time to appeal? It's almost

Troy Shelton  11:12 
Well, it's not? It's not just that, well, the motion might get denied, but that it's substantively doesn't fit any of those subsections? So it's not it's not the sort of objective look, which seems I can I can understand that role that California would have ours is less objective, it goes to the substance of what's being argued in the motion. Yeah. So if it's to say, Well, if you don't even cite the subsection, so rule 59, then well, it could possibly have been a proper reconsideration. Neutral motion.

Tim Kowal  11:41
Yeah. Yeah. So it's a similar kind of animal that all of us appellate attorneys have to deal with is, though, you have an exception, you have an extension of time to file your your appeal, but not so fast. Let's look a little deeper, any kind of exception that gives you an extension to file that Notice of Appeal, beware,

Troy Shelton  11:58 
yes. And our Court of Appeals is more than happy to dis dismiss an appeal. That's improper for really any reason at all. So you don't want to give them that out? Because then they will often take it.

Tim Kowal  12:10
Yeah, that's interesting. We've talked with Todd Smith and Jody from the Texas appellate law podcast about this kind of issue of cases of courts dismissing on technical grounds. And you know, there's there's a view that look, it's a, it's appeals are remedial, they should be construed broadly to against forfeiture of the right. But in California, of all places, you would think that, that were, you know, more big hearted here and would take a more expansive view of the rules and not be limited to the text of the rules. But when it comes to dismissing appeals and finding appeals to be untimely are taking for non appealable orders, courts here tend to be very straight laced, and will just kick appeals right out the door if they don't comply with all the rules. So that's similar in North Carolina.

Troy Shelton  12:52
Yes, I think that's true. Anywhere you go that you should not attend, you should not tip the judge with, you know, easily kicking a case, because they often will, right. I mean, that's how we think about it really on the merits of a brief right, we want to make it as easy as possible for the court to agree with their client. What easier way than just clicking the appeal all together?

Tim Kowal  13:10
That's right. All right. Well, let's get right into your article, the article, naturally, Shelton's article is called it's time to raise judicial pay in North Carolina from North Carolina Lawyers Weekly for March 2023. And in the article, Troy, you discussed that judicial pay in North Carolina is in the bottom quintile, I think it is of all the other state. Now, Troy, you're not a judge. So this doesn't affect your bottom line. Why did you get interested in this topic of judicial pay?

Troy Shelton  13:35
Well, I don't think that you need to be a judge. And I don't think that you need to be a lawyer to care about how much judges are paid, because how much we pay judges has some effect on the quality of the judges they that you're going to have. Right? And also has some impact on the experiences that those people are going to bring with them. If you pay judges, at the bottom end of the scale. Are you going to get lawyers taking the job to work out, you know, work on complex cases? Are you Is anyone from a law firm, you know, the large law firm going to take to the bench at all? Our if they do, how long will they stay there, right? Because you might have, you know, a large amount of turnover. So those are things that I think that we should, if we care about the quality of the judges that we have, that we should care about how much we pay them because those things are related.

Tim Kowal  14:23 
Yeah. Now, you mentioned that, you know, what we pay judges has some effect on the quality of judging. And I wonder if I don't want you to take any make any statements that might get you in trouble. But you're you're in a jurisdiction in your state where you're in the bottom quintile in terms of pay for state judges, federal judges, relatively will be paid more than your state judges. Is there any kind of rudimentary comparison that can be made? There are a take a judge's if an attorney were offered the prospect of being a state judge versus a federal judge, they would always take federal judge because of you know the the additional power that goes along with it, but if you're just basing it off of dollars, There's no sense, you'd have that additional instead of to be a federal judge. If you're in North Carolina, you're gonna get paid more as a federal judge, does that give any insight into the quality of judging just based on the pay between state and federal judges in North Carolina?

Troy Shelton  15:12 
I think it gives some insight. You know, I think the Fourth Circuit, for example, the judges are considered, you know, very bright. I think it's also true for our federal district judges, I think you can look at their backgrounds for the, for example, the judge that I clerked for was sort of in line to be managing partner of a really large firm, he would never, I can't imagine, he's certainly never said this to me. But I can't imagine he would have taken judge being in a trial court judge in our state court system, if that had been offered to him that I find that a little hard to believe, but he was willing to take the federal district court position, because now of course, like there's the prestige of being a federal district court judge, but the pay is, certainly was then and still is significantly different between the two as well, of course, I'm not representing he's ever said any of those things to me, because he hasn't, but I can't imagine those things don't go into people's minds.

Tim Kowal  16:06
Sure. Now, in California, it seems like every week or so we're learning about a judge who is retiring from the bench to move into, you know, not to spend more time fishing or spend more time with the grandchildren. But to go into private alternative dispute resolution. You know, I think any judge few judges have publicly admitted this some will, but usually don't see them saying that, Oh, yeah, I'm doing it for the money. They're saying it because it's interesting new opportunities, I can bring a broader perspective to different people than normally than the normal narrow subset of people that I get to talk to from the bench or even in the California State, our state, Supreme Court Chief Justice retired six months ago, and now she's in private ADR. And I suspect it's has something to do with the fact that they can make more money in private judging, and maybe it's also the flexibility. But I wonder if you have any thoughts on that? Are you seeing that in North Carolina judges retiring from the bench and going into private practice, or ADR, where they can possibly make more money than they are from their state judicial salaries?

Troy Shelton  17:06
No, so I've not seen any retire. So retiring can mean two things in North Carolina, it can mean you you chose to leave the bench or you lost your election. And so you left the bid. So I have, you know, in the past election, we had, you know, one justice retire from our state Supreme Court. He's now in private practice. He just lost his election is what what happened. Same for another, another judge who was on a Court of Appeals Ryan for a Supreme Court seat, she lost. So she she's, you know, she's joined, you know, a private practice, but I don't see them retiring. And I think that sort of voluntarily, and I think that might be a function of will who chose to join the appellate judiciary to begin with? These people often didn't come from private practices, or if they did, they were very small private practices. So that might suggest that the gap between the pay that they left behind, and the pay that they are getting as appellate judges was not massive. There's only one I think there's only one appellate judge in our in either of our our appellate courts that really worked at a large firm before he took the bench. You know, it's uh, you know, he's a Supreme Court justice. I'm friends with him. We've worked together a lot, but he's really the only large firm, you know, appellate judge in the state that, you know, he I get, you know, he made his own determination, obviously, about the giant pay cut that I'm sure that you took, but that we don't have a lot. We don't have anyone else even like that, even though they're plenty, plenty, plenty such attorneys in the state. They're not really represented on our appellate courts.

Tim Kowal  18:45
Yeah, that's interesting. That suggests I wonder if there's a broader trend of not a waning interest in being a judge. I think it used to be that you asked any attorney, would you like to be a judge? And they wouldn't have to think about it, it would be a reflexive. Yes. And now I think people would probably sit back and think well, you know, let me think about that. Let me think about the, you know, what I'm giving up in terms of salary and choice of cases, quality of life, who I can talk to about about my cases and things. Do you see that that broader trend? Is there? Is there a waning interest in becoming judges?

Troy Shelton  19:18
I think that there is a I think the interest part is not just the pay the article, this is on the pay. And I do think that's a big part of it. Because I've known people who are, you know, for a position they could have gotten through an appointment, but essentially turned it down because I mean, they weren't going to take that kind of pay cut. But I think there's also a problem, because we elect all the judges, and currently our appellate judge races are all partisan races. And I think that people are on especially at larger firms are unwilling to do the sort of statewide campaigning because we don't have districts for our appellate judges. It's all statewide elections. I mean, just to go do the count. Painting would take a huge amount of time out of your private practice. Right. So I think that that causes the waning of the interest. I think if you could solve some of the salary, you could solve some of, you know, the electioneering needed the campaigning, then you might, you might see that there is an interest there, if you remove the obstacles.

Tim Kowal  20:19
Are there any you mentioned that the that the campaigning for judgeships in North Carolina or statewide does that create any issues with solicitation of donors? I know that a lot of people find the whole prospect of judges having to run for elections, whether it's to get elected or retention. retentions, I guess, are not as don't seem to be as controversial but running for election, you have to hold stuff, you know, give stump speeches and attract donations? And does that create problems for people claiming bias and things like that in North Carolina?

Troy Shelton  20:49 
It has, you know, we've had some very high profile political cases and our state Supreme Court last year, for example, and they ended up culminating with recusal motions going both ways, in these political cases trying to get both Democratic and Republican justices to recuse from some of these cases, is not necessarily about because of things they did during the campaign, but types, related matters. They worked on one with a legislator, and then was working on a case that was somewhat related to legislation she had worked on, before she joined the bench. So you do you do see some of that. The judge, I can tell you that the judges hate, they all hate campaigning, they don't like it. It's a giant burden to travel across the state. Because, you know, like, you know, not just our Supreme Court justice, but even at the intermediate appellate court, it's still those are still statewide offices.

Tim Kowal  21:37
And they have to do that every eight years. You said every eight

Troy Shelton  21:41
years. And so and so, you know, if there's a vacancy, then the governor appoints the big, you know, appoints you know, someone to for the next two years, but then they have to run again, right after that. So,

Tim Kowal  21:54
yeah, so I've been faced with the prospect of having to gear up for another election, in order to take a salary that it's in the bottom quintile of the nation that probably calls for some some hard conversations across the dinner table with the spouse.

Troy Shelton  22:08
I think that's exactly right. I think that's why you see that not so many people from private practice to join in, go into the bench because you have your lifestyle, you might live perfectly within your means. Right? You know, it's not a golden handcuffs kind of thing. But to imagine taking $100,000 pay cut $150,000 pay cut more, of course, obviously, for many senior attorneys, that's drastic. Yeah. Asking a lot.

Tim Kowal  22:34
Yeah. Well, inherent in California, I mean, everything, everything everywhere, I guess it's usually is measured in terms of home prices. And here, you know, when you take the judicial salary, compared to the home prices, you're still at a 5x median multiple, which means that technically it's it's under unaffordable by traditional, you know, by standards five years ago, you know, now maybe a 10x multiples is considered affordable. But yeah, that gets gets hard once you pay the mortgage. And you're mourning Starbucks by some measures. You're you're below the poverty line at at a judicial salary less than 200,000.

Troy Shelton  23:04 
Yeah, ma'am. And imagine you have, I have three kids, right, like you and three young kids. They're not even in grade school yet. I mean, you've gotta have to save for all their colleges, right? I mean, you you're gonna decide not to save your kids colleges, because you want to be a judge. I mean, that's a question you'd have to ask yourself. Right.

Tim Kowal  23:21 
Yeah. Now, Troy, you mentioned in your article that, that in 2021, the national median first year associate salary was 165,000, not including bonuses. We had talked about this a little bit how hard it is to get folks from, especially from big law to consider going into judiciary, if it's not, you know, comparably remunerated. But this, you know, this first year associate salary of 165,000, rivals judicial salaries in some states, including North Carolina, and I think even at some levels in California as well, you know, this seems intuitively wrong that a first year associate should be making the same amount as a judge, how do we fix that? Should judicial salaries somehow be, you know, legally pegged to private salaries? Because I think just in the last 1015 years, we saw associate salaries shoot up drastically in big law? And what does that mean? How do we address that problem of first year associates being able to make more than judges?

Troy Shelton  24:18 
And I certainly don't think that, you know, we have to have big law, you know, setting the salaries for for judges, I don't, there is, there's nothing wrong, and I think everything right, with expecting that many judges, you know, maybe prospective judges would have to take a pay cut to become a judge. I think that that's fine. And because there are of course, other benefits, the prestige, the power, you know, just the interest in public service that comes with being a judge. But I think we do have to pause and ask ourselves, think about, you know, the quality of the judge that you'd like to have. That person is a lawyer right now, but he's not a judge or she's not a judge. And ask yourself, you know, what's the opportunity costs? that person what what is it that that the the high quality candidate is given up to come be a judge? Because, you know, some people will say, Well, who really cares what lawyers are getting paid? Well, the average salary in North Carolina is like $50,000 or 60,000. You know, but that's an irrelevant number, right? Like, we need to know that because that's not that's not what they're leaving behind. At least No one's leaving behind a $60,000 job to come on be an appellate judge. We want to know what they're leaving behind. And I think that, you know, at least looking at what's it like a senior associate get paid? Right. I mean, that same if we're looking, I think it helps tell you something, I don't know that you can create some formula based on first year salary, associate salaries, but we need to know what's a mid level what's a senior associate, or a junior partner? What's that kind of person getting paid? And and maybe that's closer to the number that we should be shooting for, for a judge?

Tim Kowal  26:00
Yeah, I think in your article, you mentioned, there are a relatively small number of appellate justices in North Carolina, obviously, fewer than in California. But when you look at the state state budget as a whole, and the amount, you know, just to bump them up to a salary that that starts with a two, and it's not going to be a lot of money, I think in North Carolina would be 700,000 bucks, which is, you know, just a blip in the button, not even. So does that suggest that the the issue is more like an issue of political will? Is it because people just look at politicians don't want to have to account to people would say, why are you paying, you know, government workers more?

Troy Shelton  26:35 
I think that is part of it. I think that there's not been enough noise made about it. I will say that since I wrote that article, two things have happened. First, our house came out with its budget, which had a modest increase for appellate judges in the state. And then actually just yesterday, or the day before our Senate came out with a budget that was actually spent less but had an even larger increase for the appellate judges so that for the first time ever, the proposal was that the Chief Justice's salary was always right on the news at $200,000, and pegged the Chief Justice's salary to the governor salary, which makes sense, but is, especially in our state chief justice is in charge of actually the administration of the entire judicial system, not just deciding cases at the Supreme Court. So he's also an administrative officer in that sense. So, you know, I think that we're going the right way. I don't know if it was partisanship that that held things back because over the past, since 2018, for example, our Supreme Court has been controlled by a Democratic majority, but our legislature since 2011, has been controlled by Republicans. I don't know if that is what stymied it that we saw really just modest increases during that time. So now, now, starting January, this year, the person makeup of the Supreme Court flipped and now matches that of the general assembly. So maybe, maybe, you know, I don't know if that's an answer or not. I have no idea what's going through the General Assembly's mind. But I do see that that most recent budget, that some real progress that we're making for Yeah, I

Tim Kowal  28:11 
know, I recall, reviewing, reviewing my city's budget, when we're advocating for some some kind of campaign about removing toxic pesticides from the parks, and we were getting some pushback that, oh, it's going to be more expensive to pull weeds or to use non toxics. And so I was looking at the budget, and notice how much you know, police and fire personnel make. And you know, the city manager and the police chief and the fire chief all make close, close around a $400,000 annual salary. And you know, I think it's probably, I don't know why it should be a hard sell to get appellate judges, you know, in the same neighborhood is that?

Troy Shelton  28:45
Well, this agreement here?

Tim Kowal  28:47
Yeah. That's really, how much one other question that was triggered, in my mind reading your article, how much should judicial salaries fluctuate depending on geographical cost of living? You know, we've been talking about prices of housing, you know, different cost of living in California versus North Carolina. And even in California, you know, you go 50 miles in one direction, and you feel like you're not in California anymore. You're in the desert or you're in a we have the inland area, the breadbasket area where it's all agricultural, feels like it's a different state from the metropolitan regions. How much should judicial salaries fluctuate depending on these differences in geography, and you mentioned in your article that trial judges, for example, are scattered across the state, some in rural regions, seven Metro regions, while appellate judges tend to reside only in the metropolitan regions. And that might be a reason why their pay needs to be increased a bit more because of the higher cost of living in the metro regions. Should salaries be based on the relative cost of living or just the value of services or a mix of the two?

Troy Shelton  29:49 
Well, it's funny that they asked that when I was writing the article, I sent a draft to one of my colleagues who's a former Supreme Court justice in North Carolina, and he said he suggested writing less about this sort of variability for it, because apparently, it's, I guess the idea has been floated in North Carolina in the past. And it's been pretty controversial. I can understand why. Right. But at the same time, I know, you know, when I was a federal district court clerk, I mean, there was a cost of living pay. It just depends on, you know, depending on the geography that you're in and struggling is pretty reasonable. I mean, why I was clerking and not a giant city in North Carolina, of course, like my cost of living is way less than someone clerking in Manhattan. Right. It struck me as sort of obvious that we did pay those clerks a little bit differently. And I think for for appellate judges in North Carolina, it's an easy question. They all have chambers here in Raleigh, where I am, we should pay them a cost of living comparable to North Carolina. But I mean, I lean towards some variable pay for our trial court judges. And I know that I know that now. Like I said, I was worn controversial take, I don't know if you guys have some thoughts on that. But there's a good argument there.

Tim Kowal  31:00 
Yeah, no, I don't have a, I don't have a strong feeling one way or the other. Just, I'm glad you confirm that it is an area of controversy and where there are some different opinions on it. So we'll have to love to bookmark that and look out for the folks who do have strong opinions one way or the other. So but but you lean in favor of at least understanding the argument that there should be some some reflection for the cost of living if you're gonna live in a high cost of living area, your remuneration has to be it has to take that into account.

Troy Shelton  31:26 
I think so in your maybe maybe in North, it, maybe the answer for North Carolina is not the same as the answer for California. Right? I mean, yes, we do have some some real differences between Raleigh and Charlotte, and then really the rest of the state, which is pretty rural. But I think California probably has a much greater very, my guess is y'all have greater variability than we do higher highs and lower lows, but certainly higher eyes when it comes to cost of living. So if there's an argument to be made for, I think your state is probably gonna just about the best argument for variable pay.

Tim Kowal  31:59 
Yeah, well, and the other the other side of this, just to raise the temperature just a little bit more is that some of the variability may be because of the higher regulations? You know, there are economists and scholars who made the argument done studies that more regulations means higher cost of living. So you might say that, well, why do I have to pay you more just because your politicians decide to regulate you more? Why don't you just limit the the regulators? And that way, you don't have to pay you so much?

Troy Shelton  32:23
Yeah. I mean, you're another option would be well, you know, the state doesn't supplement, but maybe maybe the locale, the local government has the opportunity to supplement judicial pay. But my guess is if you leave it to the local governments, there wouldn't be a supplement. But just just an end state.

Tim Kowal  32:40 
Yeah. Well, if we could try, I wanted to ask you, you know, why do we have a North Carolina appellate attorney? Just a few questions as we kind of continue our our a survey of different states and try to some compare a comparison and contrast with with some of our California Rules, I like to ask whether, if you know, are your rules of civil procedure in California set by your Supreme Court in North Carolina or by the legislature. So the rules of civil procedure are set by the legislature, but the rules of appellate procedure are created by the state Supreme Court.

Troy Shelton  33:13 
Does that mean? That's different? So it's set, it's actually written into the Constitution, who gets to control what and the General Assembly our legislature has delegated some sort of trial court rulemaking authority to supplement around the rules of civil procedure? So the business court, for example, has its own set of rules that that supplement proceedings in that court and those are written by the Supreme Court, but they aren't the Supreme Court only has the authority, who is the legislature has delegated it to them.

Tim Kowal  33:41 
Got it? Okay. But what about court reporters have heard of a national court reporter crisis? There's a lot of talk of it in California, a lot of our California Superior Courts have stopped providing court reporters in departments that ordinarily had provided them like family law and probate departments. Now, they're no longer provided. If you want one, you have to order your own. Has there been any? Have you seen any changes in North Carolina in terms of court reporter access?

Troy Shelton  34:07
No. So certainly nothing recently, I should mention that our trial court division has the Superior Court division, which I spoke about earlier, which is you could consider like the main trial court division, but then there's also the district court division, which is sort of below that. So Superior Court has felonies, civil matters more than maybe $25,000. But the district court division has all family law cases, all misdemeanors, all small dollar cases go there. And in district court, in my experience, there's never a court reporters. Instead, there's audio recording, that's always recording. So you if you want the transcript, you have to though you have to essentially go get the audio file from the hearing, I suppose the trial net. I mean, there's not a lot of trials being held in district court or their trials, their bench trials and family law cases.

Tim Kowal  34:53
And it's interesting that you have the audio recording access. That's something that California has tried to get it was shut down by the courtroom. Border lobby. There are some there's a bill pending now, I believe to re implement it now that there there's this, this urgency created by the court reporter shortage. We'll we'll see what happens with it. But to date we do not have our courts do not allow audio recordings, except in very limited circumstances, like juvenile and criminal proceedings. But it is something that I think would alleviate the shortage. So is that something that works? Well, having the audio recordings available to be transcribed later for the appellate record?

Troy Shelton  35:27 
Yeah, it's not it's not always perfect. Sometimes it's hard. It's hard for the court reporter to tell who's speaking, right? It's like, hey, there's five men in a room and you can't see them right. And their voices sound somewhat similar. So you do need to take a look at the transcript to make sure that things are right or it will say unnamed person, One unnamed person to the right. So you definitely want to take a look at that when you get the copy from the transcriptionist just to make sure it's correct.

Tim Kowal  35:53 
As far as you see if you haven't seen any, any appeals that came out the wrong way because of a defect in transcribing of the audio record.

Troy Shelton  36:00
I've never seen that in North Carolina. Okay.

Tim Kowal  36:03
All right. What about how to starry decisis work in the North Carolina courts? Is it does it work similar to federal courts where the federal courts are, are bound by their own past decisions? Unless they're reviewed on bonk, or by the US Supreme Court? Does it work similar in the North Carolina State? Intermediate courts? Are they bound by their own past decisions? Or can they just ignore them at will?

Troy Shelton  36:25 
No. So they're bound to works just like precedent, our immediate core and date. So there's 15 judges on our court of appeals, they said panels of three, but there aren't districts in North Carolina. So it's not like you have to worry about conflicts between the Eastern District and the Western District divisions of the Court of Appeals, nothing like that. But I'll tell you that sometimes that their case, law, duck, there's a circuit, you know, sometimes we get a circuit split within our court of appeals, because when one panel goes off in one direction, the other panel goes off in the other direction, and they're unaware that they have created these conflicting lines of precedent. Our Court of Appeals got on board procedure allowed by the General Assembly, I don't know five or six years ago now, but I've never used it. So there's a split of opinion about the at the with the Court of Appeals judges about which ones want to use it and which ones won't? Don't. Yeah, I think, Well, if there's a split, it's not our problem. Let's bring court fix it. Right.

Tim Kowal  37:23 
So they have the ability to take matters up on bank, but they've never done it.

Troy Shelton  37:28
Yes, I think that there was a bit of the feeling my guess this is my interpretation, reading between the lines from conversations that is more of the old guard was not a fan of the envelope procedures. They never used it. But we've had so much turnover and so many other judges are are new are relatively new. And I think the median turn number of years they've served now are like down to like four years. Right? So that they're pretty green in general. So I think that because we have so many new judges, I think we're more likely to see a non voc probably sometime in the next two years. But that's just I know, nothing to be said on besides Yeah, besides that, yeah.

Tim Kowal  38:04 
But two more, two more questions that do you have unpublished as your Intermediate Court of Appeals issue unpublished opinions, and can you nonetheless cite two unpublished opinions,

Troy Shelton  38:15
they do have unpublished opinions and you are allowed to cite to them, but you have to put them in a little addendum in the back of your brief, which sort of helps flag the fact that they're unpublished. They're lesser yeah, there's the idea, I guess, is supposed to be that well, your opponent might not be able to find the these unpublished, even though they have less lo que se right or likes this case.

Tim Kowal  38:39
So I see. actually attach the opinion. You have

Troy Shelton  38:43

to attach it to the end of your brief. Yeah.

Tim Kowal  38:45 
Interesting. Okay. All right. And the last question, this is for just benefit the anti slap guru, North Carolina, I believe does have an anti slap law. Correct?

Troy Shelton  38:56
No anti slap law.

Jeff Lewis  38:57 
They're savages. They're savages. They're Why have you focused on enacted and I'm gonna ask you personally try Why have you not done anything to enact a law that gives the First Amendment its teeth that protects people from being sued for speaking thereby?

Troy Shelton  39:14 
So I've seen you guys asked this question before, and I just couldn't even figure out what a slap lawsuit was supposed to look like. I'm not I'm not sure what the problem is that we're trying to remedy. So you tell you, here's the problem. Why do I here's

Jeff Lewis  39:27
the problem. If you are sued, let's say you're a lawyer, and you say something in court, this guy's putting in us and you get sued for that. And we all can agree that you shouldn't be sued for things you say in court. Right. But to defend that case, normally, you have to go through five years of litigation, spend half a million dollars in attorneys fees or pay a big deductible to your insurance company. And after five years, you would when an anti slap law lets you cut the line. You have a hearing and MSJ like hearing within like 90 or 120 days discovery has stayed in the play Jeff has to prove why it's not a frivolous lawsuit to sue you for calling somebody bananas in court. And so the burden is on the planet. And if they can't prove that there's evidence that are law, suggesting you should be held liable, not only is the case dismissed, but they have to write a check for your attorneys fees to make you whole. So that, you know, by the end of the year, let's say, the case is done, you're out and you've cut the line in from all the other cases. Doesn't that sound pro business and very friendly towards lawyers? It sounds friendly.

Troy Shelton  40:29 
But I've never seen a lawsuit like that in North Carolina. Maybe, maybe, maybe we have other procedure. I mean, you could file your motion for summary judgment, you could serve your answer and then serve your motion for summary judgment immediately. And in North Carolina, and you'd be off to the races. Most we have, you know, I think we probably have privilege law that would protect those kinds of comments. And so you could raise the privilege early. And we have a somewhat generous appellate appellate review of interlocutory orders in North Carolina. So you could appeal, obviously, from a denial if you raised the privilege in, for example, your motion to dismiss and it was denied. You can appeal immediately from the denial. Oh, I

Jeff Lewis  41:09
see. All right. So maybe the reason you folks don't have an anti slap laws, perhaps you don't have a slap problem?

Troy Shelton  41:16 

Problem. I've never heard anyone talk. Okay. But maybe it's because of the other procedural protections? It wouldn't be favorable to it wouldn't be worth plaintiffs time.

Tim Kowal  41:25 
Yeah, I don't even know what it's like anymore to not see a slap and every lawsuit through the looking glass here in California every every time we get served every every client to get served with a lawsuit. Oh, this has got to be a slap somehow.

Jeff Lewis  41:38 

Yeah, that's true.

Tim Kowal  41:40 
Okay. All right. Well, well, Jeff has got a an oral argument to run to. So we're gonna we're gonna we're gonna cut it unless Troy has any, any last words or parting shots from North Carolina? All right, then. We're gonna thank you, Troy for joining us. I think that judicial pay topic is an important one, we'll we'll we'll keep a bookmark on that. If your state that jumps up the list, you'll let us know about it. And then I think our state is just trading the number one and number two spot with with DC and I don't know if that's going to change in the near future, because of the cost of living in those two regions are probably probably the top of of all the regions so so it's commensurate but well, what well, let's wrap it up there. Again, we want to thank casetext for sponsoring the podcast and each week we include links to the cases that we discussed, and we use casetexts for their daily updated database of case law statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research at That's A LP. Thanks.

Jeff Lewis  42:43 
Yeah, if you have suggestions for future episodes, or if you're a North Carolina judge, and you want to take Troy to lunch, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal.

Tim Kowal  42:57
Alright, thanks again, Troy. See you next time.

Announcer  42:59 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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