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N.C. lawyers opposes increased secrecy in disciplining judges

The groups who say they were ambushed by the North Carolina legislature this year have new members: some of the state’s most prominent judges and leaders of the legal community.

Judges and lawyers normally fare well in dealings with the General Assembly.

But many of them have publicly mobilized against a last-minute Republican bill that would change how North Carolina disciplines its jurists.

This week, and for the first time in its history, the North Carolina Bar Association asked a governor to veto a bill.

On Wednesday, more than two dozen of the group’s former presidents, including seven from Charlotte, followed up with a letter to Gov. Pat McCrory asking him to block the changes. It was sent to Bob Stevens, McCrory’s legal counsel and past president of the Mecklenburg Bar.

The bill’s supporters, which includes most Republicans in the General Assembly, say it streamlines certain procedures and puts more disciplinary authority where it belongs, with the Supreme Court. That includes giving the state’s high court authority to punish its own members.

Critics, however, say the bill shrouds in secrecy what is now a substantially public process, undermining trust. By consolidating disciplinary authority with the Supreme Court, they say, it increases the odds for conflicts of interest and sets North Carolina up for potential partisan embarrassments that have hit other states.

John Wester, a Charlotte attorney and past state bar association president, said the importance of the debate extends beyond courtrooms and law offices.

“We underestimate the authority that our system gives to our judges,” Wester said. “It’s a great blessing that we’ve had judges with impeccable integrity. But when there’s an exception, we have to have a reliable process that the public can believe in.”

McCrory has until Aug. 25 to sign the bill. Stevens and Kim Genardo, the governor’s press secretary, did not respond to requests for comment.

State Rep. Paul Stam, R-Wake, one of the bill’s sponsors, said he expected opposition. “What surprised me is that the opposition appears to be over things that don’t really matter.”

Currently, investigations involving Supreme Court members are settled by senior members of a lower court, the N.C. Court of Appeals.

Stam, a lawyer, describes that juxtaposition as “sort of weird.”

“The House doesn’t discipline the Senate, and the Senate doesn’t discipline the House,” he said. “Why should we let a lower court discipline the Supreme Court? That’s why we call it ‘supreme.’ ”

Critics, though, say the bill weakens a time-proven process. And at a time when politics have turned more partisan, and millions of dollars flooded into a N.C. Supreme Court race last year, critics say the need for transparency surrounding complaints against judges has only grown.

“North Carolinians should be very concerned,” says Amanda Martin, attorney for the N.C. Press Association.

“The public has a legitimate interest in knowing when their trust and confidence in the judiciary has been breached.”

With little debate

Like many of the major bills passed by the Republican majority, the “An Act to Modify the Law Regarding the Discipline for Judges,” came through the legislature with little debate.

It passed the Senate on the second try, then made it through the House on the last day of the session.

Most Republicans voted for it. Democrats were opposed. While the bill was being debated, a Republican sponsor said a majority of the state Supreme Court supported the changes; Chief Justice Sarah Parker of Charlotte wrote letters opposing it.

While the bill passed largely along party lines, former Chief Justice Burley Mitchell, a Democrat, believes that some of what it calls for is overdue.

For starters, he says, Supreme Court members should not shirk from decisions to punish colleagues. He calls the current system, which leaves that to the Appeals Court, “a convoluted mess.”

Public reckonings

The current system puts investigations of judges into the hands of the Judicial Standards Commission, which was created by the legislature in 1971.

It has two stages: One panel handles investigations; another runs the disciplinary hearing if the charges are warranted. All proceedings remain private unless the commission issues a reprimand or schedules a disciplinary hearing.

If the commission, which is made up of judges, lawyers and private citizens, decides to censure, suspend or remove a judge, the Supreme Court must approve it. A case involving a Supreme Court member goes before a group of Appeals Court judges instead.

In 2009, the standards held a public hearing for Mecklenburg County District Judge Bill Belk, who had been investigated and charged with misconduct. Members recommended that Belk be removed from office.

Belk resigned before his case went before the state Supreme Court. In 2010, however, the court banned Belk from returning to the bench.

Solution or problem?

The bill before the governor would change the disciplinary process in key ways.

• All punishment, including public reprimands, would also fall to the Supreme Court. Stam calls this a logical move, since the court already must sign off on censures.

Critics, including the bar presidents, say the reprimands are an important standards commission tool to avoid costly and time-consuming hearings. Forcing the high court to decide reprimands, they say, could delay cases.

• The bill also calls on all disciplinary hearings to be closed and the records confidential unless the Supreme Court decides to dole out punishment.

In Belk’s case, for example, his hearing before the standards commission would have been private under the rules. No mention of the charges against him would have become public unless the Supreme Court found grounds for disciplining him.

• Finally, the bill gives the Supreme Court sole authority to discipline itself.

In the floor fight over the bill, state Rep. Rick Glazier, D-Cumberland, questioned the need for the changes and who was pushing them.

“There has never been a problem (with the current system) that has been brought to the attention of this body,” he said.

A Charlotte attorney, who asked not to be named because he’s involved in the negotiations with the governor’s office, described the bill as “a solution looking for a problem.”

Keep up

Stam, the House sponsor, scoffed at the notions that the bill was rushed to the governor.

The bill took seven weeks to pass, he said. “People who can’t keep up with legislation shouldn’t comment on it.”

Critics of his bill point to consequences elsewhere.

In Wisconsin, for example, a GOP member of the Supreme Court was accused of choking a Democratic colleague. But when the complaint came before the court, according to published reports, all the Republicans recused themselves. The complaint was dropped because the court didn’t have enough members to hear it.

Mitchell, the former North Carolina jurist, said the problem in Wisconsin was not partisan politics but “a failure of backbone.”

“I have no respect for court members who recuse themselves at a drop of the hat,” he said. “There’s only one state Supreme Court. If you don’t want the job, go practice law.”

Gordon: 704-358-5095
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