Now that the primary election is over, the putatively nonpartisan election for the North Carolina Supreme Court seat currently held by Justice Robin Hudson is, in reality, a head-to-head contest between Justice Hudson, a Democrat, and Superior Court Judge Eric Levinson, a Republican.

            Gone from the airways, at least for now, is the despicable and scurrilous television ad that maliciously and falsely attacked Justice Hudson as “not tough on child molesters.”   The ad cited a 2010 decision in which the court’s seven members split, 4-3, over the constitutionality of a state law that required convicted sex offenders to undergo satellite-based monitoring, or “SBM,” 24-7, even if their offenses had been committed before the law was passed and they had completed their penal and probationary sentences.   The only issue in the case was whether the monitoring – which significantly restricted the travel and activities of those who were subject to it – was a form of “punishment.”   If so, its retroactive application ran afoul of the U.S. and North Carolina constitutions, both of which prohibit the ex post facto application of criminal laws.

            The issue was both an important constitutional question and a close call. Courts in other states had gone both ways.   The applicable facts raised thorny issues about which reasonable people clearly could differ. (For example, one question addressed by the court arose out of the fact that the SBM equipment prevented anyone being monitored from taking a commercial airline flight. Is this deprivation a form of “punishment?”)

            In an opinion written by Justice Dan Brady and concurred in by Justices Mark Martin, Bob Edmunds and Paul Newby, the majority explained in detail why they felt that SBM was not punitive.   Justice Hudson, in an opinion joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson, explained just as fully why they thought otherwise. Both Justice Brady and Justice Hudson argued passionately for their respective views of the constitutional issue, but neither had a kind word for child molesters or sex offenders. Moreover, since the record pretty clearly showed that the monitoring was a huge nuisance both for those being monitored and those doing the monitoring, and was not really effective as a crime prevention measure, the outcome of the case appears at the end of the day to have been largely symbolic.

            Now the question is whether this tempest in a legal teapot will continue defile and define what should be a campaign between two principled people. I know and respect both Justice Hudson and Judge Levinson. Either is well qualified to sit on the North Carolina Supreme Court. But the onus in this race, like it or not, now falls on the latter.   Will Judge Levinson disavow and repudiate the shabby and underhanded tactics of the big-money crowd that paid for the “not tough on child molesters” ad? If so, he is worthy of the voters’ consideration in November.   Otherwise, he isn’t.