The battle for control of North Carolina’s court system has not taken center stage this fall.

But it is breaking precedents all around.

On the Democratic ticket, N.C. Chief Justice Henry Frye is running for re-election. A 17-year veteran of the state Supreme Court, he is the first African American to serve as chief.

On the Republican side, one of Frye’s fellow justices is trying to unseat him: Associate Justice I. Beverly Lake Jr., a former gubernatorial candidate and lawmaker.

No other sitting justice has ever challenged the chief justice before, but Lake is not concerned about that.

“Really, we are in a new era now where we have a true two-party system,” Lake says. With his candidacy, he says, Republicans have their first real chance to elect a chief justice in 104 years.

Gov. Jim Hunt appointed Frye as chief justice in August 1999. Frye didn’t expect opposition from his fellow justices this year, even though Republicans outnumber Democrats on the court, four to three.

But Lake says several colleagues from the trial bench, many of them Democrats, asked him to challenge Frye. Then the Republican Party urged him strongly, he says.

“I was initially reluctant,” Lake says. “Henry Frye is not just a colleague, but a friend.”

But Lake would like to have the job of chief justice, and he was concerned that another Republican would challenge Frye and win. If this turned out to be a big year for Republicans — as it was in 1994, when Republicans won all the challenged seats on the state’s appellate courts — “we needed someone in the race who could do the job.”

Is race a factor in this contest?“I would rather not speculate on that,” Frye says. “I’m trying to convince people that I was the best qualified person when I was appointed and there’s no reason to change.”

Yet the race for chief justice has become something of a rallying point for the African American community and the Democratic Party. Some 42 individuals, couples and entities — black and white —sponsored a reception for Frye and Court of Appeals Judge James A. Wynn Jr. here two weeks ago. (Wynn, also an African American, is the North Carolina judge whose appointment to the Federal 4th Circuit Court of Appeals was blocked by Sen. Jesse Helms.)

And at the NAACP’s recent Freedom Fund Banquet here, a nonpartisan event, speaker Ben Ruffin put in a few words about Frye.

“It’s customary, it’s justice-like, that one justice would not run against the chief justice,” said Ruffin, president of the Ruffin Group and head of the UNC Board of Governors. “But y’all know what happens when race comes into it.”

Henry Frye is one of the finest men to sit on the N.C. Supreme Court, Ruffin said. “This is not partisan,” he told the NAACP crowd, “this is the truth.”

Lake says Ruffin may want to interject race into the campaign, but he does not. Race plays no role in it, Lake says.

As for his own family history —Lake’s father, a longtime judge, was the state’s last racial segregationist candidate for governor —Lake quickly dismisses the subject.

“What happened 40 years ago when the law of the land was different is totally irrelevant to this day and time and this campaign,” Lake says.

Frye also shies away from the subject, and has been quoted as saying he’s asked his supporters not to bring that up. “I told Justice Lake that if he wouldn’t run against my father, I wouldn’t run against his,” Frye told The News & Observer in Raleigh.

He’s more concerned about name-recognition.

Frye expects to spend about half a million dollars on his campaign, which he says is probably the most ever spent on a judicial race in North Carolina.

“I have run statewide in a contested election one time, in 1984,” Frye says. “My opponent has run statewide in a contested election three times ....

“In the down-ballot races, name recognition is the key in most elections. Because of his exposure to the voters —three times that of mine —I feel like I need to get my message out through the media. That costs money.”

Lake says his campaign will cost about $150,000.

How are the two men different judicially?Frye prefers not to comment on Lake. “I’ve been on the court 17 years, and Ilook at each case on the law and the facts,” Frye says.

But Lake sees clear philosophical differences, saying that Frye leans to the liberal side while he is more conservative. That has not caused friction on the court, Lake says. “We run a very spirited but a very friendly court. ... We are together on the majority of our opinions.”

Lake says the difference surfaces in their attitudes toward the death penalty; Lake supports it while Frye does not.

But that has never prompted Frye to ignore the state’s death penalty law, Lake says. “He has voted to uphold and I’ve voted to reverse,” Lake says of death penalty appeals, which automatically come to the Supreme Court.

“If I think the defendant did not get a fair trial, I would not hesitate to reverse,” Lake says.

Control of courts

In addition to the Supreme Court, the chief justice presides over the entire court system of the state.

“This race is really not so much about the Supreme Court, it’s about who will head the judicial system,” Frye says.

The chief justice appoints the head of the Administrative Office of the Courts, which oversees all courts. Former Superior Court Judge Thomas Ross has filled that position under Frye.

One of their proudest achievements of the past year came when they convinced the General Assembly to allocate extra money for the courts. In a year when the state was asking agencies to cut back because of flood relief and court judgments, the court system won an additional $14 million for improved technology.

But Ross has already announced that he’s resigning. Frye is waiting to see the election results before he appoints Ross’ successor. If Frye loses, Lake will be making that appointment.

Break with tradition

Frye says voters should look at each candidate’s history and “whether you need to make a change.”

Frye was the senior associate justice on the court at the time of his appointment to chief. It’s been the custom in the state to promote the senior judge to chief, a custom Frye supports unless the senior judge is seen as unfit for the office.

One break with that tradition came under Gov. Jim Martin, a Republican. He bypassed the senior justice, Democrat Jim Exum, and appointed Rhoda Billings as chief. Exum retired from the court and, as a lawyer, ran against Billings for chief and won.

Has the state’s highest court fallen victim to partisan friction?

“Not yet, and I hope it never comes to that,” Frye says. “We are a collegial court.”

What’s important for the court, he says, is not what happens in the voting booth but what happens when the justices are in conference over the cases under their review.

“In that conference, we don’t talk about the Republican point of view, or the Democratic point of view. We talk about what is the law in this case. That’s I hope the way it will always be.”

Born in Ellerbe, Frye graduated from N.C. A&T University and won his law degree, with honors, from the University of North Carolina law school. He has been a private practice lawyer, a federal prosecutor and a law professor at N.C. Central. He was the first black elected to the N.C. General Assembly in the 20th century and served seven terms. He is also founder and former president of Greensboro National Bank.

Hunt first appointed Frye to the Supreme Court in February 1983, and Frye won a contested race in 1984. Eight years later, he won re-election with no opposition. (“That’s the best way to run, incidentally,” he says.) Now he’s seeking his third full term on the court.

If he wins, he’ll finish out his career on the Supreme Court and Lake will continue serving his own unexpired term.

If Lake wins, Frye will have to step down from the court. An appointee would replace Lake in his associate justice role.

Lake proposals

Lake’s hometown is Wake Forest. He earned his undergraduate and law degrees from Wake Forest University. He has been a private practice lawyer, assistant and deputy state attorney general.

He served two terms in the state Senate, and ran for governor in 1980.

Lake cites three reasons why voters should choose him over Frye:

• Length of service: Because Lake, at 66, is two years younger than Frye, he will be able to serve two years longer than Frye. State law requires justices to retire at the age of 72. (Each term is eight years.)
• Experience: Lake has served in the executive, legislative and judicial branches of state government — one more than Frye. Most compelling in Lake’s eyes is the fact that he served five years as a Superior Court judge. Since the chief justice heads the entire court system, any experience he has in the trial courts would be valuable. “I’ve been there,” Lake says. “I know the system far better than anybody outside the system.
• Program: Lake says the Administrative Office of the Courts could be much more efficient. He would maintain a more sustained and effective relationship with the legislature — which in turn should help win support in correcting the chronic funding shortages the state’s courts suffer in all divisions. The AOC needs organizational and technological changes, and he wants to make the personnel more efficient.

“We have very bloated bureaucracy in Raleigh,” Lake says. He wants to pare that down and save “hundreds of thousands of dollars.”

The AOC won $14 million in additional funding from the General Assembly this year, but Lake says that was not much help for the courts across the state.