NC court panel has questions about Tracey Cline ouster appeal

ablythe@newsobserver.comFebruary 13, 2013 

— Three state Court of Appeals judges had many questions Wednesday for lawyers involved with Tracey Cline’s challenge of her removal from office as Durham’s district attorney.

They asked pointed questions about the limits of free speech and pushed Cline’s attorneys to elaborate on their contentions that the out-of-work prosecutor was denied due-process rights.

They suggested that broad questions about the vagueness of the procedure used to force out an elected district attorney would be better addressed with state legislators who have the power to write law.

Cline, who was elected in 2008 as Durham’s district attorney and re-elected in 2010, was ousted from office nearly a year ago through a rarely used legal procedure.

On Wednesday, attorneys James Van Camp of Pinehurst and Patrick Mincey of Wilmington tried to convince Judges Martha Geer, Robert N. Hunter Jr. and Sanford L. Steelman Jr. that the process used to oust Cline had violated her constitutional rights on several fronts.

Burton Craige, a Wake County attorney appointed to represent Robert Hobgood, the Superior Court judge who approved Cline’s removal from office, argued that Cline’s ouster was warranted and done within the confines of state and constitutional law.

Cline did not attend Wednesday’s hearing.

She is the second district attorney in North Carolina to be removed from office using a petition process rooted in a state law written more than four decades ago.

In the 1990s, Jerry Spivey was ousted as the New Hanover County district attorney after a judge found that he had brought his office into disrepute by uttering a racial slur in a Wilmington bar. His case eventually went before the state Supreme Court, and the justices ruled that the process was constitutional.

Nevertheless, Mincey argued in court Wednesday that the procedure, neither criminal nor civil, was too vague and had not afforded Cline reasonable time to prepare a defense. He argued that the law did not provide Cline subpoena power nor did it permit her to query witnesses before the hearing who might testify against her.

“For Ms. Cline or for any other district attorney in the state of North Carolina, this statute does not afford the minimum level, the minimum protections of due process that our federal Constitution requires,” Mincey said.

Geer and Hunter questioned whether that issue was for them to decide given the state Supreme Court’s findings in the Spivey case. All three judges suggested that any broad problems with the procedure might be best addressed by a change in the law.

They also pointed out that Cline had been able to challenge the evidence brought against her at the ouster hearing last year, and was permitted to call witnesses.

“The only record against her is her own words, right here,” Craige said as he pointed to some 900 pages of court documents that Cline had written and filed.

In those documents were statements that Hobgood included March 2 in his order removing her from office.

Hobgood found that Cline had made statements with malice and reckless disregard for the truth against Orlando Hudson, Durham’s chief resident Superior Court judge.

Cline’s stridently worded comments in court documents came after The News & Observer published a series of articles highlighting prosecutions by her that were under scrutiny in various levels of the courts.

In an unusual challenge to a judge, Cline contended that Hudson had retaliated against her after she refused to drop a murder case tainted by questionable SBI crime lab reporting procedures.

Hudson dismissed the case in a ruling that has since been reversed by the Court of Appeals.

In court documents that led to her ouster, Cline described Hudson’s dismissal of the case “an extreme abuse of power” and the beginning of a “corrupt” smear campaign against her.

Cline contended that Hudson was working in league with the N&O to “demean the district attorney at all costs.”

Her attorneys argued that she filed her motions after personal conversations and mediation through mutual friends proved fruitless. She filed a complaint against Hudson with the Judicial Standards Commission, the state organization tasked with investigating complaints of judicial misconduct. But she knew a ruling could take months. It was not until September that Hudson was cleared after the commission found no probable cause to begin any disciplinary hearings.

Cline, according to Van Camp, was worried about statements that Hudson had made against her in rulings, some of which later were shown to include false information.

Cline contended that Hudson was making decisions about the scheduling of cases without prosecutors present. She was troubled that information she believed to be under seal was showing up in media reports, according to her attorneys.

Cline’s lawyers argued she felt like she had her back up against a wall and made statements that she believed at the time to be true. They further contended that she did not make the statements with malice.

“The person who is responsible for prosecuting these cases was being undermined by a judge,” Van Camp said.

Hudson had issued rulings accusing Cline of conspiring with law enforcement officers, the medical examiner and others to withhold evidence from defendants and in at least one case to destroy evidence, Van Camp pointed out.

“These were the accusations being told from the bench,” Van Camp said. “What do you do? Do you live up to your oath of office … when you’ve tried everything else to effectuate your position?”

Geer challenged the free-speech argument earlier in the hearing when Mincey was making his points. She noted that the justice system has appeals processes and procedures in place to report and discipline misbehaving lawyers and judges.

“Speaking out is one thing,” Geer said. “We’re talking about fairly extreme language here. … Are you saying she can say whatever she wants because of her frustration with the process?”

Craige urged the judges to uphold Hobgood’s order to protect the judicial system.

“For our system of justice to prevail, the remedy cannot be a baseless attack on the character of the judge, especially when the attack is made by a district attorney,” Craige said.

Cline, Craige contended, brought her office into disrepute with her stridently worded motions.

“If this barrage of false accusations against Judge Hudson is acceptable, what would not be acceptable?” Craige asked.

The judges did not announce a schedule for their ruling. They often mull a case for months.

Cline, who made $119,305 as Durham district attorney, also awaits a disciplinary hearing with the state Bar, the organization that oversees lawyers in North Carolina.

That hearing is on hold pending the outcome of her challenge to her ouster.

Blythe: 919-836-4948

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