A suit filed in Moore County seeks to have a new state driving-while-impaired law declared unconstitutional.

The suit, filed by Southern Pines attorney Bruce Cunning-ham, challenges a law that sets up new DWI reporting and record-keeping rules.

Prosecutors will have to explain to judges their reasons for any agreement to reduce or dismiss a DWI charge. They will have to file a written statement of those reasons and say what they thought they could or could not prove, and why any charge was dismissed or reduced.

All that, along with the results, names of judges, lawyers, law-enforcement officers and other data, will be posted on the Internet and saved in a database for a decade.

Cunningham says the law violates the state and U.S. Constitutions.

This law, Cunningham alleges in court documents, deprives his client, Everatt Cushman, "of his right to have his DWI charge heard by a judge who is impartial in appearance as well as in fact. The reporting requirements (violate) the separation-of-powers clause of the North Carolina Constitution."

It means "a chilling of the right of a trial judge to render a decision which is legally correct, but politically unpopular," the lawsuit says. Cushman has a DWI case coming up for trial in Moore County District Court.

Last year, two judges in Cumberland County lost their jobs after opponents painted them as soft on drunk drivers, using the records of DWI cases. The new law will make it easier for would-be judges to attack incumbents, and that gives judges a personal interest in the outcome of such cases, Cunningham says. And that, on its face, offends both state and federal Constitutions, Cunning-ham contends.

Not Based on Popularity

Under the law Cunningham is challenging, the Clerk of Court in each county must set up and keep separate DWI case records for 10 years. Every year, clerks of court have to prepare and submit reports to the legislature.

Those reports will name the judge, prosecutor, and defense attorney involved on each DWI case, how the case was resolved, any punishment and whether the punishment was modified, and whether the case was appealed among other things.

All that has to be posted on the Internet and copies provided by the state to anybody who asks for it, free of charge. Usual charges for public records are waived in this case alone.

Cunningham filed the suit this week, naming Moore County Clerk of Court Catherine Graham and Ralph C. Walker, director of the Administrative Office of the Courts, as respondents, since their offices would have to create and maintain the new DWI case records and file the reports.

He asks the courts immediately to enjoin enforcement of the law, pending a hearing, and then to declare the law unconstitutional and permanently enjoin its enforcement.

In case after case, courts have examined the impact the election of judges has on judicial fairness, Cunningham says.

While members of the General Assembly and judges alike must stand for election, judges are supposed to rule without regard for the popularity or unpopularity of their decisions, he contends. Legislators are supposed to represent the views of the people, but not judges. They represent the law, he says.

'Serving Two Masters'

This new law focuses on judges and prosecutors and unfairly influences the course of justice, Cunningham maintains. Every accused person, from the lowest magistrate's court to the highest court in the land, is entitled to impartiality, and to the appearance of impartiality, he says.

The weight of this spotlighting effect means, at the very least, judges deciding cases under its procedure -- when elections can hinge on how they handle DWI cases -- cannot even appear to be impartial, no matter how honest and resolute they personally may be, the suit contends.

On its face, that violates the right to a fair trial, the suit says.

Reporting all this to committees of the General Assembly crosses another constitutional line, Cunningham says.

"There is no legislation requiring the collection and transmittal of any comparable data for any other type of cases, including murder cases," he says. "it is not appropriate for the legislative branch to enact laws which put the legislature into the role of 'watchdog' over the judiciary."

This law puts judges in the position of "serving two masters" and "violates the separation-of-powers clause of the North Carolina Constitution." The suit asks the court to "declare that statute to be null and void."

It only reports results of DWI cases, not the reasons -- whether based on law or evidence -- for those results. The annual report filed by clerks will only show the disposition, but not whether the disposition was dictated by clearly established law, Cunningham says.

Even if it did, it would be unrealistic to think people in general appreciate fine legal points, no matter how valid, he says. The law doesn't require the legal reasons for a decision be reported, and it would not help if it did, the suit says.

Every year, by March 1, two legislative committees are to receive a report that shows DUI dispositions for the whole state by county, judge, prosecutor, and defense attorney.

"This report shall also include the amount of fines, costs, and fees ordered at the disposition of the charge, the amount of any subsequent reduction, amount collected and the amount still owed and compliance with sanctions of community service, jail, substance abuse assessment, treatment, and education," the law says.

Prosecutors will have to enter details facts in the record and "explain orally in open court and in writing the reasons" if he dismisses or accepts a lesser plea or substitutes any charge with "a lesser mandatory minimum punishment" or is not a DWI charge or otherwise takes any discretionary action having such a result.

John Chappell can be reached at 783-5841 or by e-mail at jchappell@thepilot.com.