New NC law shrouds judicial discipline process in secrecy

acurliss@newsobserver.comMarch 18, 2014 

  • Sunshine Week

    This is Sunshine Week, when advocates of open government celebrate the value of freedom-of-information laws. To see previous stories, go to nando.com/sunshineweek.

  • How a secrecy law passed

    The law that added secrecy to the process in North Carolina in how judges are disciplined was HB 652, which started out as an act to tweak when a child born out of wedlock can receive an inheritance from the proven father. The bill in that form passed the House 116-0 in April and was sent to the Senate.

    On July 18, a Senate committee stripped the inheritance language from the bill and rewrote it as an act to “modify” judicial discipline. On the morning of July 19, the bill seemed dead after the Senate voted 22-12 against making the judicial changes. Eight Democrats and 14 Republicans voted no.

    But then, on July 25, the bill popped back up on the Senate calendar. This time, it passed 28-14, with most Democrats against and most Republicans in favor.

    The next day, the proposal went back to the House, which then considered the judicial discipline language for the first time. After some maneuvering, including a vote that rejected sending the issue to committee, the House voted 54-47 to send the bill on to the governor. With 11 Republicans joining all the Democrats in opposition, the tally meant a governor’s veto would likely have stood up.

Late last summer, lawmakers and Gov. Pat McCrory agreed to shroud in secrecy the state’s process for disciplining judges.

The result is apparent today at the online space where notices of pending judicial discipline were traditionally posted for the public to see. Now, that Web page is blank except for a disclaimer in bold: “All proceedings for judicial discipline are confidential,” it says, citing legislation McCrory signed into law on Aug. 23.

Anyone interested in judicial discipline who had clicked on that page in, say, September 2011 would have seen pending cases against two judges and their answers to the charges. In 2008, charges were brought against six judges, with the public able to read the allegations and responses from the elected or appointed judges.

For decades, the state’s Judicial Standards Commission has led the work to investigate and recommend discipline of judges when questions arise about their professional conduct. That work, too, was largely conducted in secret until a committee, acting as a sort of grand jury, had determined that there was sufficient evidence against a judge to merit sanction or punishment. Then the charges became public.

A different panel would then conduct a hearing, with any recommendations about punishment beyond a “public reprimand” going to the state Supreme Court. Those hearings were also open to the public.

The commission still plays the role of investigator and conducts hearings about judicial conduct. But the new law keeps it all behind closed doors.

Nothing is made public now unless and until the state’s Supreme Court approves a punishment, which can include suspension or removal from the bench. More often, the penalty for misconduct has been a censure or public reprimand.

The commission’s executive director, Paul Ross, said in an interview that the new law prohibits him from even discussing whether there are any cases now pending against judges.

“I can’t reply,” Ross said in an interview. “I can’t comment, period. On anything.”

The commission’s most recent annual report says that, as of Dec. 31, the commission had launched formal investigations into six complaints against judges, and there was one matter awaiting the filing of charges. Twenty-one complaints were “awaiting initial review.”

A ‘sealed’ hearing

Among the changes brought by the new law was to strip the judicial commission of its previous ability to issue a public reprimand against a judge.

Public reprimands had been a relatively frequent way in which allegations of judicial misconduct were resolved. Documents show that 17 judges have received public reprimands since mid 2007, on conduct that included “unwarranted” delays in issuing rulings, inappropriate contact with parties in a case and signing orders improperly.

Now, even those types of resolutions must be decided by the Supreme Court. If the court does not act on them (even because of recusals by justices) or disagrees with the commission’s decision, the entire matter would remain a secret, said Chris Heagarty, the commission’s staff lawyer.

Heagarty said he could not describe anything that has or has not occurred since the law went into effect Aug. 23, but he acknowledged that the law appears to now require the state’s Supreme Court to make its decisions after holding a hearing that would have to be “sealed” from the public’s view.

Typically, documents, exhibits and a record of the commission’s prior public hearing would have been part of the public file before the Supreme Court decided punishments stiffer than a reprimand. With the change in the law, that information is not automatically public.

“Before this, the public could get more information and get it sooner,” Heagarty said.

‘Lawyers protecting lawyers’

The commission did not seek the changes in the law. Its then-chairman, John Martin, who is the chief appeals court judge in North Carolina, opposed the legislation.

He was joined by other current and former judges, including Supreme Court Chief Justice Sarah Parker, as well as the past 30 presidents of the N.C. Bar Association, the statewide trade association for lawyers.

At one point as the law was being debated in the legislature, Republican Sen. Tom Apodaca, who heads the powerful Rules Committee, commented that the plan “sounds like lawyers protecting lawyers.”

It failed on a first vote in the Senate in mid-July. But it was revived and passed as the legislative session wrapped up later that month.

The N.C. Bar Association then wrote to McCrory with what it described as its first-ever request for a veto. The discipline process for judges had always been fair – and was correctly opened up at the stage when charges were found to be warranted, Michael Wells Sr., then the association’s president, wrote to McCrory.

That open process assured “transparency for the Commission’s work, and we believe enhances the public’s confidence in the accountability of our judiciary,” he wrote.

McCrory did not issue any statements at the time he signed the bill, and his office said this week that he has not commented on the change.

A more ‘supreme’ court

A major sponsor of the bill was state Rep. Paul “Skip” Stam, a Republican from Apex who is a lawyer. Stam declined an interview request, referring to comments he had made last year around the time the law passed.

Much of the focus then was on a provision in the new law that now requires the Supreme Court to handle allegations against its own members. Before, a panel of senior judges from the state’s Court of Appeals would have done that. The commission had never brought disciplinary action against a Supreme Court justice.

Stam said it makes sense to have the Supreme Court in charge.

“That’s why we call it ‘supreme,’” he said last year.

Rep. Rick Glazier, a Fayetteville Democrat, had voiced opposition to the change.

He said in an interview that he recalled Supreme Court Justice Paul Newby as a key proponent of the change, while others had said that Republicans on the Supreme Court wanted the changes. Attempts to reach Newby failed.

Glazier said a broad cross-section of legal officials did not support the move toward secrecy.

“The bar and the bench were pretty outraged,” Glazier said. “It was terrible for transparency. And it created a situation that was creating a new law that was specifically opposed by all of the people who had created the original commission process.”

Curliss: 919-829-4840; Twitter: @acurliss

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service