NC Appeals Court upholds 2012 ouster of Durham DA Cline

abylthe@newsobserver.comOctober 1, 2013 

PETERSON14.NE.121311.ASR

Former Durham district attorney Tracey Cline.

SHAWN ROCCO — srocco@newsobserver.com

— A three-judge N.C. Court of Appeals panel has upheld the 2012 ouster of Tracey Cline, the former Durham district attorney removed from office under a rarely used legal procedure.

The unanimous decision was released Tuesday, almost 19 months after a judge found that Cline made statements with malice and reckless disregard for the truth against Orlando Hudson, Durham’s chief resident Superior Court judge.

The appellate judges – Sanford Steelman, Martha Geer and Robert N. Hunter Jr. – disagreed with each of the legal arguments Cline made in her challenge.

Cline’s stridently worded comments in court documents came in fall 2011 after The News & Observer published a series of articles highlighting prosecutions by her that were under scrutiny in the courts.

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

Throughout fall 2011, Cline contended that Hudson had been in league with the N&O to “demean the district attorney at all costs.”

Her attorneys argued in subsequent court hearings that Cline had filed the motions that led to her ouster only after personal conversations with the judge and mediation efforts through mutual friends had failed.

Cline filed a complaint against Hudson with the Judicial Standards Commission, the state organization tasked with investigating complaints. But those investigations can take months, as was the case with Hudson. In September 2012, he was cleared when the commission found no probable cause to conduct any disciplinary hearings.

Cline had complained about statements that Hudson had made against her in some of his rulings, some of which later were shown to include false information.

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.

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

The appeals court panel noted in its ruling Tuesday that Superior Court Judge Robert H. Hobgood had narrowed a long list of statements Cline made to ones that, according to his ruling, included malice.

The First Amendment, the appeals court ruling states, “precludes a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.”

“Lawyers who make derogatory remarks about judges are similarly protected from civil or criminal liability unless actual malice is shown,” the ruling states. “However, these principles only offer immunity from a civil suit for damages, not other forms of discipline.”

Cline’s lawyers also argued at the hearing in February that the removal statute is unconstitutional on its face, but the appeals court panel rejected that argument, saying that issue had not been raised with Hobgood during the 2012 hearings.

Cline, who could not be reached for comment, could appeal Tuesday’s ruling to the N.C. Supreme Court, but because the appellate ruling was unanimous, the state justices are not obligated to take the case.

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.

Cline is the second district attorney to be removed from office using the petition process rooted in a state law from more than four decades ago. Cline was elected in 2008, a little more than a year after Mike Nifong, the Durham district attorney in the Duke lacrosse case, was disbarred and pushed out of office.

Cline was re-elected in 2010, but was pushed out before serving the full term.

In the 1990s, Jerry Spivey was ousted as the New Hanover County district attorney after a judge found 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 the process was constitutional.

Former Superior Court Judge Leon Stanback has been serving as Durham’s interim district attorney since Hobgood suspended Cline before the 2012 hearing. Stanback said Tuesday that he plans to stay in the job until the 2014 elections, but does not plan to seek the elected post.

Blythe: 919-836-4948

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