News

Brooks’ promotion, Powell’s retirement
 trigger turnover in judiciary

By Bill Moss, Published: July 18, 2018

It’s starting to look like musical benches in the Henderson County judiciary.

The appointment for Henderson County’s chief resident district court judge to a Superior Court judgeship and the pending retirement of the chief superior court judge are creating a cascade of new judges in the county — a change that hasn’t been seen at least the 1960s.
Gov. Roy Cooper appointed Chief District Court Judge Athena Brooks to fill the vacancy created on May 16, when Jeff Hunt, the former district attorney, retired as a special Superior Court judge. North Carolina Supreme Court Chief Justice Mark Martin appointed Judge Thomas McAvoy “Mack” Brittain Jr. as chief district court judge for Judicial District 29B, effective June 29.
“Judge Brittain has served with distinction as district court judge,” Martin said in a news release. “I am confident he will provide the strong leadership necessary for the successful administration of the district courts throughout District 29B.”
With Brooks’ seat open, the District 29B bar, made up of attorneys in Henderson, Polk and Transylvania counties, will meets its duty under state law to send five nominations to Cooper. The bar meets at 4:30 p.m. Wednesday at the Transylvania County Courthouse. And that may not be the end of their work to nominate aspiring judges to a District Court seat.
Mark Powell, the chief resident Superior Court judge in 29B, has announced that he will retire on Oct. 1, halfway through an eight-year term he won in 2014. Powell notified the governor of his plans to leave the bench, District 29B trial coordinator Daphne Carland confirmed. The Superior Court appointment is the governor’s alone, not subject to confirmation by the Legislature nor based on nominations from the district bar. Attorneys or judges who want the appointment apply to the governor’s office.
Powell’s retirement will bring up another vacancy to fill, and it’s possible that two or more District Court judges will apply. Besides Brittain, Emily Cowan and Peter Knight sit on the District Court bench in 29B.
Judge Brooks, a Buncombe County native and resident of Hendersonville, has served on the bench in Henderson, Polk and Transylvania counties since 2004. A graduate of UNC-Asheville and the UNC-Chapel Hill School of Law, she is a major in the Judge Advocate General Corps of the U.S. Army Reserves. The General Assembly confirmed Brooks by joint resolution of both chambers.

The district bar must submit five nominations to Gov. Cooper for the District Court vacancy. In a July 2 letter to members of the Judicial District 29B bar, Brevard attorney Davis Whitfield-Cargile asked attorneys who were candidates to submit their names to him by July 13. During the meeting on Wednesday, Whitfield-Cargile will announce the names of the attorneys who had applied and also take nominations from the floor. The bar members may vote for up to five candidates. District bar officers will count the votes immediately and announce the results. The bar will the send the names of five candidates with the most votes, with the vote totals, to the governor. Cooper could appoint someone who’s not on the list. The law says he “shall give due consideration to the nominations” but it does not require him to pick from among them.
Henderson County Attorney Russ Burrell said he could not recall as much potential turnover in judgeships in the county in his 30 years of practice here.
“It would have been Judge Jackson back in the ’60s,” he said. “We had a new creation in the old (five-county) District 29. I don’t honestly recall. I believe it’s been in the 1960s since we have appointed one.”
It’s unclear, too, whether an appointment to either a District Court or Superior Court judgeship may create vacancies outside the judiciary.
“Some of the people that have sought that seat may hold other public offices,” Burrell said.