What Gets Judges in Trouble

ADMINISTRATION OF JUSTICE BULLETIN NO. 2015/01| JANUARY 2015 What Gets Judges in Trouble Michael Crowell CONTENTS Until 1973 the only way to discipline a wayward judge in North Carolina was impeachment Role of the Code of Judicial Conduct 2 by the General Assembly.1 A state constitutional amendment effective at the beginning of 1973 Other Means of Removal 2 empowered the General Assembly to adopt additional procedures for censure and removal of Statistics 3 judges for misconduct or disability.2 The resulting legislation authorized the North Carolina The Supreme Court’s Approach to Discipline 5 Supreme Court to censure or remove judges and established the Judicial Standards Commis- sion to receive and investigate complaints and to recommend action to the supreme court.3 Removal Cases 6 Starting in 2007 the legislature gave the supreme court the option of suspending a judge and Suspensions 7 authorized the Judicial Standards Commission to issue public reprimands on its own.4 The act Censures 8 also confirmed the commission’s already existing practice of private letters of caution. In 2013 Public Reprimands 10 the General Assembly removed the commission’s authority to issue public reprimands, though 5 Court’s Rejections of Commission Recommendations 11 the supreme court still has that option. As it now stands, only the supreme court may publicly discipline a judge. Conclusion: The Patterns of Discipline 13 Forty plus years of experience with the current disciplinary framework have resulted in fifty- three published opinions of the supreme court on recommendations from the Judicial Standards Commission plus seventeen public reprimands by the commission while it had that authority from 2007 to 2013. This record constitutes sufficient history to explore the kinds of behavior that get judges into trouble and to tell what causes a judge to be removed from office instead of being scolded. This bulletin is an update to Administration of Justice Bulletin No. 2013/03, published in April 2013. Michael Crowell is a professor of public law and government at the School of Government specializing in the law of judicial administration. Jim Drennan of the School of Government and Paul Ross, Executive Director of the Judicial Standards Commission at the time, assisted with the original 2013 version of this bulletin by reviewing, correcting, and improving drafts. Any remaining mistakes are not their fault. 1. For a history of judicial discipline before 1973, see Edward P. Clark, The Discipline and Removal of Judges in North Carolina, 4 Campbell L. Rev. 1 (1981). Judge Clark chaired the Judicial Standards Com- mission at the time. 2. 1971 N.C. Sess. Laws ch. 560. The amendment added Section 17 to Article IV of the North Carolina constitution. Voters approved the amendment in November 1972. 3. Article 30 of Chapter 7A of the North Carolina General Statutes (hereinafter G.S.), G.S. 7A-374.1 through -378. 4. S.L. 2006-187, § 11. 5. S.L. 2013-404. 1 © 2015 School of Government. The University of North Carolina at Chapel Hill 2 Administration of Justice Bulletin No. 2015/01| January 2015 Role of the Code of Judicial Conduct The state constitution allows the legislature to prescribe a method for the censure or removal of a judge “for wilful misconduct in office, wilful and persistent failure to perform his 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.”6 The statute which authorizes the Judicial Standards Commission to recommend discipline for a judge, and the supreme court to reprimand, censure, suspend, or remove a judge, uses the same language.7 In 1973 the General Assembly also enacted Section 7A-10.1 of the North Carolina General Statutes (hereinafter G.S.) authorizing the supreme court to prescribe standards of judicial conduct. The result is the Code of Judicial Conduct. The legislature intended the code to be the guide as to the meaning of “willful misconduct” and “conduct prejudicial to the administration of justice.”8 In 1994 the supreme court said that a violation of the Code of Judicial Conduct was not enough by itself to establish conduct prejudicial to the administration of justice or willful misconduct. It was necessary to show also that that conduct would be seen by a neutral observer as bringing the office into disrepute.9 Several years later, however, the supreme court revised the preamble to the code so that it now reads: “A violation of this Code . may be deemed conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or willful misconduct in office, or otherwise as grounds for disciplinary proceedings.” It would appear that violation of the code is now by itself sufficient to warrant discipline. As discussed below, the supreme court has said that censure is warranted for any conduct prejudicial to the administration of justice;10 that conduct prejudicial to the administration of justice is not as serious as willful misconduct;11 that a judge may be removed only for willful misconduct;12 and that willful misconduct requires more than censure.13 Other Means of Removal This bulletin is about sanctions publicly imposed by the supreme court or the Judicial Standards Commission. It does not discuss private letters of caution issued by the commission because they are, well, private. The commission issues, on average, about ten or so such letters each year. Nor does the bulletin discuss situations in which a judge has been removed from office other than by the supreme court. It might be useful to list those other possibilities for removal, however. Impeachment by the legislature is still available to remove a judge,14 though it was rarely con- sidered in the past and is never used now. 6. N.C. Const. art IV, § 17(2). 7. G.S. 7A-376(b). The statute uses the spelling “willful” rather than “wilful,” as in the constitution. 8. In re Nowell, 293 N.C. 235 (1977). 9. In re Bullock, 336 N.C. 586 (1994). 10. In re Martin, 295 N.C. 291 (1978). 11. In re Peoples, 296 N.C. 109 (1978). 12. Id. 13 In re Badgett, 362 N.C. 482 (2008). 14. N.C. Const. art IV, § 17(1). A two-thirds vote of all members of each house of the General Assem- bly is required for impeachment. © 2015 School of Government. The University of North Carolina at Chapel Hill What Gets Judges in Trouble 3 Disbarment is more likely. Judges are required to be licensed to practice law, and as lawyers they are subject to discipline, including disbarment, by the State Bar for violation of the Rules of Professional Conduct. By statute a judge’s office becomes vacant upon disbarment.15 Judges also may be prosecuted for criminal offenses. Under the state constitution, conviction of a felony disqualifies a person from holding any public office,16 and by statute conviction of any criminal offense showing professional unfitness is grounds for disbarment by the State Bar.17 As seen in the summaries of supreme court discipline cases presented below, sometimes the court will remove or otherwise sanction a judge after a criminal conviction, but there are other times when as part of a plea the judge resigns and pledges never to seek judicial office again. When that happens the supreme court may see no need to take further action. There also are times when a judge will resign before a formal complaint has been filed with the Judicial Standards Commission or while the commission’s investigation is still pending. Sometimes the commission and supreme court will proceed with discipline; at other times the resignation will end the matter. And even if the court proceeds with discipline, the resignation may prompt a lesser sanction than otherwise would be imposed. Today all public discipline of judges is by the supreme court. For a few years the Judicial Stan- dards Commission also could publicly reprimand judges. These public actions by the court and commission, which are the focus of this bulletin, provide a representative sample of what gets judges in trouble, even if removal sometimes occurs by different means. Statistics In 1973, its first year of operation, the Judicial Standards Commission received twenty-three complaints.18 By 1980 the number was up to eighty-seven,19 and in the most recent year reported, 2013, there were 235 complaints initiated.20 From the beginning the great majority of complaints have been dismissed after initial review by the commission, mainly because so many complaints are more about judges’ legal decisions than about their behavior. In its first nine years the commission dismissed 84 percent of the complaints after initial review;21 in the five most recent years about 90 percent were disposed of that way.22 Not surprisingly, domestic litigants and criminal defendants generate the most complaints, with civil litigants other than those in domestic cases next in line.23 In the early 1980s about three-fourths of the complaints were about district judges, another quarter about superior court judges, and just a handful about appellate judges.24 The number of complaints against the two 15. G.S. 7A-410. 16. N.C. Const. art. VI, § 8. 17. G.S. 84-28. 18. Clark, supra note 1, at 26. 19. Id. 20. N.C. Judicial Standards Comm’n, 2013 Annual Report 3 (2014) (hereinafter 2013 Annual Report). 21. Clark, supra note 1, at 27. 22. 2013 Annual Report at 6. 23. This has been true from the beginning of the commission. Compare Clark, supra note 1, at 26–27 and the 2013 Annual Report at 4. 24.

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