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Last fall, out of public view, the North Carolina Supreme Court squashed disciplinary action against two Republican judges who had admitted that they had violated the state’s judicial code of conduct, according to three sources with direct knowledge of the decisions.
One of the judges had ordered, without legal justification, that a witness be jailed. The other had escalated a courtroom argument with a defendant, which led to a police officer shooting the defendant to death. The Judicial Standards Commission, the arm of the state Supreme Court that investigates judicial misconduct by judges, had recommended that the court publicly reprimand both women. The majority-Republican court gave no public explanation for rejecting the recommendations — indeed, state law mandates that such decisions remain confidential.
The sources spoke to ProPublica on the condition of anonymity because many of the actions and decisions of both institutions are confidential and because the sources said they feared retaliation.
When it comes to disciplining judges, North Carolina is one of the most secretive states in America, according to data from the National Center for State Courts’ Center for Judicial Ethics. Over half of states make disciplinary proceedings against judges public once charges are filed with their judicial ethics commission. Another dozen make them public if they reach the state’s supreme court. North Carolina is one of only three states, in addition to the District of Columbia, to release information only at the last possible stage of the process — after the Supreme Court orders discipline.
Stephen Gillers, a professor emeritus at New York University’s law school who specializes in legal and judicial ethics, said that making some parts of disciplinary cases against judges confidential can be necessary to protect private or personal information. But North Carolina goes too far, he added. “While secrecy has a place in judicial discipline, it can be used to conceal wrongdoing,” Gillers said. “Once there is a finding of wrongdoing by a disciplinary commission, the case should become public.”
The North Carolina Supreme Court’s decisions not to publicly discipline the two judges, which have not previously been reported, appear to be the only instances in more than a decade in which the Supreme Court did not follow the commission’s recommendation to issue punishment. Those decisions come at a time of accusations and recriminations about politics influencing North Carolina’s high court. Last year, Justice Anita Earls, a Democrat, sued the commission after it launched an investigation into comments she made suggesting that Republican justices were influenced by conservative ideology, remarks that she defended as free speech. And a Republican justice personally attacked Earls in a Supreme Court order in September. In addition, the year before, outside groups sought recusals of more than half of the court’s justices over various conflict-of-interest accusations.
Spokespeople for the North Carolina Supreme Court and the Judicial Standards Commission declined to comment or respond to a detailed list of questions.
Asher Hildebrand, a professor of public policy at Duke University, explained that in the 2010s, North Carolina had policies designed to keep the judiciary above the political fray, such as nonpartisan judicial elections. However, the gradual dismantling of these policies by the Republican-controlled legislature has driven the court’s polarization, according to Hildebrand.
“While we might long for the days when courts were perceived as being above politics, courts are very much a partisan battleground,” he said.
Bob Orr, a former Republican justice, said partisan disputes over the judicial standards process have intensified in recent years.
“The judicial standards........