Courts and Law

Behind closed doors: North Carolina creates a “star chamber” for wayward judges

sm-731-2013

It started out as a simple bill allowing parties in family court to appeal rulings before their cases were finally resolved.

By the time it landed on the House floor for a final vote, one of the last bills on the last day of the long session, it had a new name, a new number and a new purpose: to give the justices of the state Supreme Court the sole authority to discipline judges — including themselves –and allow them to decide if, when and who to discipline in secret.

And the back story of the passage of the bill, H652 — including the rare public lobbying by Republican justices in favor of the bill and opposition from the Democratic Chief Justice — illustrates that, despite claims otherwise, money and politics may in fact be dividing the Court.

“We have a bill here today that’s being proffered by several folks not in this chamber, to protect members in, or seeking to be in, the judiciary — who are Republican — from having their cases heard in an appropriate manner,” Rep. Rick Glazier said when debating the bill on July 26. “I don’t know if those cases will turn one way or another – that is irrelevant. But I know that the process ought to be fair, and I know it ought to be public and it ought to be transparent. And every one of you know it as well.”

“If we pass this,” Glazier continued, “we are engaging in a plot to cover up potential claims against sitting justices, and that is wrong on every level.”

Creating a “star chamber”

The Judicial Standards Commission, established in 1973, is charged with investigating complaints of misconduct by judges.

Currently chaired by the Chief Judge of the Court of Appeals, John Martin, the commission — comprised of judges, attorneys and state residents — operates under rules approved by the Supreme Court in 2006 and enacted into law in 2007.  It handles roughly 300 complaints each year, most of which are dismissed after an initial review.  Remaining complaints can move on to a public reprimand by the commission or to censure, suspension or removal by the Supreme Court, based upon recommendations by the commission.

In instances in which it holds hearings, those hearings – along with the record of the proceedings and any recommendations made to the Supreme Court for censure, suspension or removal — are open to the public.

And in instances in which the complaint involves a justice of the Supreme Court, a panel of the six senior Court of Appeals judges – not the Supreme Court — makes the determination of if and how to discipline that justice.

House bill 652 changes all of that.

It takes away the authority of the commission to issue public reprimands, essentially vesting all forms of public discipline in the Supreme Court.

It makes disciplinary hearings private, and keeps all case records confidential unless and until the Supreme Court decides to take disciplinary action – meaning that a complaint about a judge can be reviewed and disposed of by a majority vote of the Supreme Court, without members of the public ever knowing anything about that complaint until, in the best scenario, the Court has already made a decision to discipline.

But if the majority votes against discipline, the public learns nothing – not even that a complaint was filed.

And, in what Rep. Glazier called the “more scurrilous” of the changes, it removes the discipline of Supreme Court justices from the panel of Court of Appeals judges and hands that over to the Supreme Court – essentially allowing the justices to discipline themselves.

“Four of the justices want this bill”

As happened frequently this session, especially in the waning days, H652 sprung to life from two separate bills.

One, H122 — a bar-association supported bill permitting appeals in family court cases before those cases have been finally resolved — sailed through the House without opposition in early March. It then sat until June, when it reappeared from the Judiciary Committee co-chaired by Sens. Thom Goolsby and Buck Newton with the new provisions that drastically changed the rules for the discipline of judges. (Neither senator, nor Sen. Warren Daniel – who served on the Conference Committee for H122 — returned calls for comment about the bill).

After negotiations, those changes were ultimately pulled out of H122 and pushed into the newly-gutted bill H652, a bill formerly concerning inheritances by illegitimate children.

The reinvented H652,  “an act to modify the law regarding the discipline for judges,”  failed in the Senate on July 19, but was re-referred to committee and put to a vote again on July 25, when it passed, unchanged, by a vote of 28 to 14.

The bill then landed in the House, where it came up for debate on the floor on the last morning of the session, bypassing any committee involvement.

Rep. Glazier had plenty to say in opposition to the bill and its assault on the integrity and transparency of the courts, but he also wanted to know why it was there in the first place.  Nobody had asked for it.

“This legislature should never be involved in this,” he said.  “It is not a request from the Court of Appeals. It is not a request of the commission. It is not a request of the Supreme Court.  It is not a request of the bar association. It has never been in discussion in the courts, at the bar association, nor in any judiciary committee here.”

“The judiciary voted unanimously several years ago to approve these rules,” Glazier added. “They have never met to reconsider these rules. The courts have never met to reconsider these rules.  And there has never been a problem that has been brought to the attention of this body about anything that’s happened with these rules.”

In fact, Glazier pointed out, Judge John Martin, as head of the Judicial Standards Commission, had written a letter to the House vehemently objecting to the changes.

“These changes will have a negative impact upon our state’s ability to review and discipline instances of judicial misconduct,” Martin wrote.  “Further, [they] will create potential conflicts of interest within our judiciary and muddle the transparency and availability of public records related to judicial misconduct.”

Chief Justice Sarah Parker likewise wrote to the House, objecting to the changes. (The remaining justices would not comment on the bill.)

But Rep. Skip Stam said a majority of the Supreme Court justices supported the bill.

Rep. Tim Moore agreed. “My understanding is that four justices of the Supreme Court want this to pass,” he said on the floor. “Justice Newby and Mark Martin have asked for this bill.”

(Reps. Stam and Moore did not return calls for comment about the bill or about the identity of the justices who supported the bill.)

Glazier moved for the bill to be sent back to committee to be reviewed and possibly reconsidered in the short session in May 2014.

“We don’t have to do this today,” said Rep. Larry Hall in agreement. “It can wait. There’s been no public outcry for it.  We don’t have any instance showing that there’s a need for this bill to come forward.”

The majority in the house had no answer to that. Nor could they produce any written proof from any judges in support of the bill.

But they proceeded with the vote and passed H652, 53 to 48.

Why the hurry?

Members of the Republican majority were clearly in a hurry to pass H652; they had no interest in sending it to the House Judiciary Committee for full review and consideration.

“Members, please understand that this is the last day that we can vote on this bill,” Rep. Tim Moore said. “If you vote for this motion to re-refer, you vote to kill this bill,” Rep. Moore said,

But why the hurry?

When pushed by Glazier, Republican lawmakers had no answer other than that “a majority of the justices” wanted the bill passed.

“Without an answer, we can only speculate,” Glazier said. “And speculate I will. Some justices may fear that there may be a recusal motion filed against them in the next year, or candidates running for the Justice position, may fear having a complaint filed against them, and they don’t want the bipartisan Court of Appeals judges to hear the case. They want their own colleagues on the Supreme Court to do it, figuring they’ll get a better deal there. And if we pass this we are a party to that process.”

Who might those justices be?

Justices Newby and Martin were the only judges identified as lobbying for the bill’s passage, and of the two, only Newby has had a publicly-known brush with possible ethics issues as lodged against him  in the redistricting case.

“I was told from multiple sources that Justice Newby was pushing this for months,” Rep. Glazier said in a phone interview.

Last November, the parties challenging the 2011 redistricting plans asked the Supreme Court to remove Newby from hearing their pending appeal concerning documents and testimony sought in the case.  They argued that Newby — known by then for the “Newby Tough but Fair” banjo ads that flooded the airwaves during the last few weeks of his re-election campaign — should step aside because conservatives with an interest in seeing the redistricting maps upheld by the Court had kicked in millions to pay for those ads and support his re-election.

The court denied that request in December, without opinion. And earlier this month, the three-judge panel of the trial court ruled in favor of the Republican lawmakers responsible for those plans. The panel’s ruling on the merits is now before the Supreme Court, and it’s expected that the recusal issue will arise there again.

As for candidates for a seat on the court in the 2014 election, only Justice Cheri Beasley – running to retain the seat she was appointed to by former Gov. Bev Perdue; Justice Mark Martin – running for Chief Justice; and Senior Resident Superior Court Judge Ola Lewis from Brunswick County have declared their intentions to run.

None of them have any publicly-disclosed ethics complaints pending, but the newcomer to the group, Judge Lewis, has been at the center of some controversy in her district, according to media reports.

In 2010, Lewis sued Edward Rapp for libel after Rapp accused her, in a Facebook post, of violating ethics rules when she publicly supported the Senate campaign of William Rabon.   Since then the case has gone to the Court of Appeals, which rendered a ruling in Lewis’ favor, and back to the trial court, where she won $105,000 in damages.

A cautionary tale

Should Gov. Pat McCrory sign H652 into law (as of this post, he has not), North Carolina will become not only one of a minority of states that have closed public hearings, but also a minority of the minority, by keeping everything closed until the supreme court has the final word, according to Cynthia Gray, Director of the Center for Judicial Ethics at the non-partisan American Judicature Society.

“The state judicial conduct organizations serve the pivotal function of ensuring the public that judges who abuse their power and engage in other forms of misconduct can be held accountable without political pressure,” Gray said.  “Trust in the efficacy of public proceedings is one of the hallmarks of American democracy in general, and public hearings for judges charged with misconduct complements the pride judges justifiably take in the openness of the judicial system in particular. “

If North Carolina needed any help in understanding just how detrimental H652 can be, it need only consider the Wisconsin experience,   she added, where millions in campaign contributions and expenditures (rivaling the amount spent in the 2012 Supreme Court election here) combined with partisan control have nearly crippled the state Supreme Court.

In 2011, when considering a challenge to Gov. Scott Walker’s anti-union legislation, the Republican majority on the Wisconsin Supreme Court rushed through a 4-3 opinion supporting the governor, with justices actually coming to blows over a dissenting justice’s delay in finishing her opinion.  One Republican justice, David Prosser, was accused of choking the dissenter – a Democrat.

When the ethics complaint was filed against Prosser over the choking incident, his Republican colleagues on the court recused themselves from considering the charges, effectively dismissing the complaint because the court lacked the quorum needed to vote on the question of discipline.

Charges over a 2008 campaign incident likewise went unaddressed by that court, when the justices deadlocked along party lines and no discipline resulted.

That will happen here, too, Rep. Glazier warned his colleagues during the floor debate. Complaints about judicial misconduct will come and go from the Supreme Court, and the public may never know.

And in a parting shot before the final vote on H652, Glazier tried to appeal to a higher purpose.

“This is a matter of ethics,” Glazier said. “You can vote the politics of it, if you choose, but this is a bill about the integrity of the judicial system of the state of North Carolina, and we owe a higher obligation to ourselves and our state than to our politics.”

The vote speaks for itself.