Judgeships in North Carolina’s trial and appellate courts are elected offices. Thus, it often is said that the ballot box is the mechanism for holding the state’s judicial officials accountable. There is, however, another way in which judges may be held to account for misconduct: through disciplinary proceedings initiated by the Judicial Standards Commission. Those proceedings led to the North Carolina’s Supreme Court’s imposition of public discipline for three judges in 2020 and two more judges in 2021. The Judicial Standards Commission’s recently released annual report describes the nature of its work, its composition, and its increasing workload.
What is the North Carolina Judicial Standards Commission? The North Carolina Constitution was amended effective January 1, 1973, to require the General Assembly to prescribe a procedure, in addition to impeachment, for the censure and removal of a justice or judge of the General Court of Justice for willful misconduct in office, willful and persistent failure to perform his or her duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. See N.C. Const. Art. IV, Sec. 17. Legislation accompanying this amendment created the Judicial Standards Commission, which was then and is now charged with investigating complaints and making recommendations to the North Carolina Supreme Court for the censure or removal of a judge or justice. See S.L. 1971, c. 590; see also G.S. 7A, Article 30. The 1973 constitutional amendment also required the General Assembly to prescribe a procedure for the removal of a justice or judge for mental or physical incapacity interfering with the performance of his or her duties which is, or is likely to become, permanent. Accordingly, the Judicial Standards Commission also is charged with investigating complaints regarding a judge’s physical or mental incapacity.
Finally, the Commission is responsible for issuing advisory opinions to judges about permissible judicial conduct. G.S. 7A-377(c). Commission staff issue 250-300 written informal advisory opinions each year. The Commission published one formal advisory opinion in 2020. In that opinion, it addressed the circumstances in which a judge may participate in a truancy court program created by a local school district. See Formal Advisory Opinion 2020-01.
Membership and staff. Today, the Judicial Standards Commission is comprised of the following members: a Court of Appeals judge who serves as its chair (Judge Chris Dillon), two superior court judges (Judges Jeffery Foster and Athena Brooks), two district court judges (Judges James Faison and Teresa Vincent), four attorneys elected by the State Bar Council (Lonnie Player, Allison Mullins, Michael Grace and Michael Crowell), two citizens appointed by the Governor (Talece Hunter and Donald Porter), and two citizens appointed by the General Assembly (Ronald Smith and John Check).
The Commission is staffed by an executive director (Carolyn Dubay), as well as commission counsel, and an investigator. The duties assigned to those positions along with the general procedures by which the Commission operates are spelled out in the Rules of the Judicial Standards Commission promulgated by the Supreme Court on June 3, 2020.
What is the process leading to disciplinary action? Individuals may submit complaints to the Commission or it may initiate a complaint on its own motion. Complaints may be summarily dismissed if they do not state facts that, if true, would indicate that a judge has violated the Code of Judicial Conduct. Of the 432 complaints that the Commission considered last year, 283 were dismissed after initial review. Complaints that are not summarily dismissed may be the subject of a preliminary or formal investigation. Sixty-eight complaints were dismissed at this stage. The Commission’s annual report states that these dismissals most often occur because the complaint alleged legal error that the Commission has no jurisdiction to investigate, or because the allegations were too vague to evaluate, lacked credibility, or could not be substantiated.
An investigative panel of the Commission may issue a private letter of caution to a judge after a formal investigation if it determines that the judge engaged in conduct that violated the Code but that does not warrant a recommendation of discipline by the Supreme Court. Twelve complaints were dismissed last year with a letter of caution.
An investigative panel that finds probable cause to believe that a judge or justice engaged in conduct that warrants public discipline by the Supreme Court may authorize a disciplinary or disability proceeding against the judge. Those proceedings are initiated by the filing of a statement of charges. Two statements of charges were issued last year. We don’t know the nature of those charges because all proceedings before the Commission are confidential. See Rule 6, Rules of the Judicial Standards Commission (providing that “all complaints and related information received by the
Commission, meeting materials and records, investigative files, documents and
evidence relating to disciplinary and disability proceedings, private letters of caution,
informal advisory opinions, and all documents and communications related to any of
the foregoing are confidential”).
The affirmative vote of at least five members of a Commission hearing panel is required to make a recommendation to the Supreme Court that a judge be publicly reprimanded, censured, suspended or removed from office. The Supreme Court acts as a court of original jurisdiction in reviewing a recommendation from the Commission, and, as such, is not bound by the Commission’s findings of fact or conclusions of law. See In re Hartsfield, 365 N.C. 418, 429 (2012). Moreover, the Supreme Court is not bound by the Commission’s recommendations regarding the appropriate disciplinary action. Id.
Trends. The Commission’s report notes that despite the pandemic, its 2020 workload reflected an overall trend of increasing complaints to be reviewed. The Commission considered 290 complaints just four years before. The most common complaint is that judge committed some form of legal error in rendering a decision in a case. That, of course, is the proper subject of an appeal, not a basis for discipline. Most complainants are criminal defendants or litigants who appeared before a trial judge in a civil, criminal or domestic matter.
Supreme Court discipline. While most complaints are dismissed and minor transgressions result in a private letter of caution rather than public discipline, Commission recommendations have led the Supreme Court to impose public discipline for several judges in recent years. Three judges were publicly disciplined in 2020. See In re Clontz, 376 N.C. 128 (2020) (ordering that district court judge be publicly reprimanded for holding a probable cause hearing without defendant’s court-appointed counsel present in order to “make a point” to defense counsel and other attorneys about being on time in court); In re Murphy, 376 N.C. 219 (2020) (ordering that court of appeals judge be censured for contributing to and enabling a toxic work environment in his chambers and for interactions with AOC Human Resources that undermined the dignity of the Court of Appeals); In re Stone, 373 N.C. 368 (2020) (ordering that former district court judge now serving as a superior court judge be censured for misleading statements made to State Bar on official court letterhead).
Two judges have been publicly disciplined in 2021. See In re Brooks, 377 N.C. 146 (2021) (ordering one-month suspension of district court judge who collected payment for serving as executor of former client’s estate while serving as judge and failed to report income on Extra-Judicial Income report or Statement of Economic Interest filed with State Ethics Commission); In re Pool, __ N.C. ___ (2021) (ordering that retired chief district court judge be censured for using a Facebook account on which he was identified as the chief district court judge to, among other things, initiate and engage in conversations with at least 35 women that ranged from inappropriate and flirtatious to sexually explicit; the judge also routinely sought to arrange personal meetings with women he contacted on Facebook either during breaks and recesses from court, before court convened or immediately after court adjourned).