Guidance limiting NC judges’ political activity was quashed. Officials won’t say why.

One of the roles of the North Carolina Judicial Standards Commission is to encourage public confidence that judges rule in a manner that is nonpartisan.

Now those who oversee the commission are doing the opposite. They’re fostering judicial partisanship and withholding information about it that public records advocates say should be released.

The commission’s executive director left her job shortly after she posted a judicial guidance memo on March 11. It was signed by her boss, Appeals Court Judge Chris Dillon, a Republican who serves as the commission’s chairman. The memo advised judges to limit their political campaigning to the period when they are facing reelection. The idea is that too much politicking by judges undermines public confidence in the courts.

This shouldn’t be controversial, but it apparently upset some senior Republican judges who have no problem with judges also being politicians. Their displeasure with the memo was made clear to Dillon, a Republican who was appointed by Chief Justice Paul Newby to chair the commission. The March 11 memo was promptly replaced by an older, less specific version of judicial guidance.

Dillon and the Administrative Office of the Courts (AOC), which administers the commission, have not responded to requests for an explanation of what led to Carolyn Dubay’s departure as executive director. However the story circulating in Republican circles is that she sent out the memo with Dillon’s name on it without the judge’s approval. The Republicans’ concern was that the advice offered by the memo would limit judges’ and justices’ free speech – including their ability to solicit donations and make endorsements – as Republicans seek to win elections, including to taking control of the state Supreme Court this November. The court currently consists of four Democrats and three Republicans.

Limiting campaigning to active judicial candidates would inhibit the political influence of two Republicans on the Supreme Court who are still early in their eight-year terms.

The idea that Dubay, a lawyer and the commission’s executive director for six years, tried to rein in judicial campaigning on her own strikes people familiar with her work as highly unlikely. Former Court of Appeals Judge Wanda Bryant, a Democrat and former chair of the commission, said of Dubay, “She would not have sent anything out without my approval. That’s not how she operates.”

Bryant added that judges declaring to the commission immediately after being elected that they are candidates for reelection puts them in nominal compliance with judicial standards as active candidates, but the practice is a loophole that goes against the spirit of the guidelines.

Dubay declined to comment.

I requested from the AOC all emails related to the posting and removal of the March 11 memo. If Dillon had approved it, that approval would likely be among the emails. There might also be emails from those who objected to it.

Graham Wilson, the AOC’s communications director, said the emails are a confidential ”work product” and are not subject to disclosure under the state’s public records law. The N.C. Open Government Coalition, an organization that advocates for compliance with public records laws, disagrees.

Brooks Fuller, an Elon University journalism professor who directs the coalition, said, “The assertion of work product privilege to cover emails between public servants is odd and likely a misapplication of the work product doctrine and current law.”

When informed of the coalition’s opinion, Graham said the AOC stands by its denial.

The Judicial Standards Commission was established in 1973 to weigh complaints against judges and help them comply with standards of judicial conduct. Now, it’s supposed to look the other way when partisanship pervades the courts. And when we asked about that change in its mission, we found the watchdog muzzled.