Court filing supports removal of former Durham DA Tracey Cline

acurliss@newsobserver.comDecember 30, 2012 

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Durham District Attorney Tracey Cline listens as Superior Court Judge Robert Hobgood responds to her argument for subpoenaing The News & Observer._Cline, the suspended Durham District Attorney is involved in a special inquiry that could cost her the elected position she has held since 2009. ( POOL PHOTO/CHUCK LIDDY/THE NEWS & OBSERVER)

2009 N&O FILE PHOTO BY CHUCK LIDDY — cliddy@newsobserver.com

  • Who is paying? Lawyers for former Durham District Attorney Tracey Cline have sought taxpayer money to foot the bill for her appeals of her removal from office, but so far with no success. The Superior Court judge who removed her this year denied Cline’s request for state funds for her appeal. The state Court of Appeals, in October, also denied Cline’s request for funds. Cline is appealing, and in part says she should receive funds because the other side in her case has. The reason for that lies in the complicated and unusual nature of the removal process. Any citizen can file an affidavit seeking to remove a district attorney on specific grounds spelled out in the state law that governs DAs’ conduct. In the case of Cline, that citizen was Kerry Sutton, a lawyer. Hobgood then appointed Sutton to carry out the presentation of evidence against Cline. He could have appointed a different lawyer, the approach used in the state’s only previous removal of a DA. (In that case, the affidavit launching the process was not filed by a lawyer.) After Cline was removed and gave notice she would appeal her removal, Sutton asked the court to appoint an independent counsel to assist in answering the appeal. Hobgood granted the request. Sutton has remained involved, and her name is one of three signed to the answer to Cline’s appeal filed this month. But the work is headed by the court-appointed independent counsel: Burton Craige of Raleigh. He will be eligible for up to $20,000 in fees for handling the appeals.

Lawyers argue in a new 60-page filing with the state Court of Appeals that Durham District Attorney Tracey Cline’s removal from office this year was warranted and the decision was made within state law.

“No reasonable attorney would have taken (her) course of action in the same circumstance,” wrote Raleigh attorney Burton Craige in a filing this month that was also signed by two other lawyers.

The course Cline took was to make repeated attacks on Durham Superior Court Judge Orlando Hudson in a series of court filings in late 2011 and early 2012 that alleged Hudson was, among other things, corrupt, had disregarded facts and the law, and had led a conspiracy against her that included unfavorable coverage in The News & Observer.

Cline had wanted Hudson, the county’s senior judge, removed from cases in Durham while he was investigated by the judicial standards commission. The commission later cleared Hudson of any wrongdoing.

Cline was twice warned by judges (both former DAs) to be accurate in her court filings, but she attacked Hudson again in seeking to remove him from a pending case in January. That prompted the defendant’s lawyer in that case, Kerry Sutton of Durham, to file an affidavit under state law that launched the removal process for only the second time in North Carolina history.

Cline was officially removed from her office by Superior Court Judge Robert Hobgood of Franklin County in March after he had held several days of hearings. The reason: Cline had made false and reckless statements against the judge, engaging in conduct “prejudicial to the administration of justice which brought her office into disrepute,” a standard for removal in state law.

Free speech at issue

Cline now is fighting to get her job back. In an appeal filed in October, she asked the state appeals court to rule that her court filings against Hudson were protected by the First Amendment and that the removal law is unconstitutional. She also argues that Hobgood made procedural errors in the way he conducted the removal hearing.

A big part of the appeal is Cline’s argument that the First Amendment protects her filings.

Cline’s lawyers say that the First Amendment allows for robust, vehement, caustic and other unpleasant attacks “on an official such as Hudson.”

They highlight in their appeal a case involving a district attorney in New Orleans, who accused federal judges of crimes and of being lazy in a news conference. His attack was found by the U.S. Supreme Court to be allowed under the First Amendment and not subject to a defamation lawsuit.

Cline argues that her attacks on Hudson were part of carrying out her duties as a prosecutor after what she perceived were unfair actions toward her office by Hudson over several months.

Cline believed her allegations were correct, wrote her lawyers, James Van Camp and Patrick Mincey of Pinehurst. They describe efforts by Cline to meet with Hudson to understand rulings by him that she did not believe were accurate, and her enlistment of a mutual friend to try and bring the two together. Hudson was unresponsive, they wrote, and as more cases were scheduled, “Tracey’s back was against the wall.”

She then launched her attacks, which she later testified could have been worded differently.

“Tracey’s intent was genuinely anchored in her motivation to do the right thing for her Office and the public it represented,” Cline’s appeal says.

The state agency that regulates lawyers, the N.C. State Bar, has begun a separate disciplinary process against Cline because of her filings, but it is on hold pending the appeal.

Disparaging words

Craige, appointed by Hobgood to handle a response to Cline’s appeal, wrote that Cline went beyond any protected speech, pointing out that her filings covered more than 500 pages and included “wild” and “unsubstantiated” accusations of corruption, dishonesty, moral turpitude, malicious misconduct and abuse of power.

“Cline’s only argument in defense of her conduct is that she genuinely believed her accusations were true,” he wrote. “Cline’s declarations of good faith should be given no credence. Cline had no evidence that Judge Hudson is corrupt or that he orchestrated a conspiracy to attack her office.

“These fantastical ideas, fabricated by Cline, are so inherently improbable that only a reckless person would have published them.”

Craige also wrote that the only other removal of a North Carolina district attorney, an action upheld by the state Supreme Court, involved the case of a prosecutor who had used a racial slur against a patron in a nightclub.

“Cline’s calculated assault on Judge Hudson over a period of seven weeks is more detrimental to the justice system than a district attorney’s utterance of a racial epithet in a single heated exchange in a bar, which the Supreme Court found to be sufficient grounds for removal,” he wrote.

The appeals court has not yet indicated whether it will hear oral arguments from the lawyers in the Cline case. It is also not clear when the court will make a decision.

Curliss: 919- 829-4840

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