This post appears here courtesy of the John Locke Foundation
. The author of this post is Jim Stirling
North Carolina Supreme Court Justice Anita Earls has recently filed a lawsuit against the North Carolina Judicial Standards Commission, alleging the commission has aimed to stifle her First Amendment right to freedom of speech. Earls has recently been the subject of an investigation by the commission after a complaint was filed regarding an interview with legal news organization Law360, in which she discussed the racial and gender composition of lawyers who speak before the state Supreme Court. This, alongside comments made during the interview regarding the racial diversity of clerks for the court and her perceived disparate treatment from lawyers before the court. The complaint filed with the Judicial Standards Commission claims this constitutes a violation of the judicial code of ethics, specifically that judges must conduct themselves "at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Like many conservative pundits, I have been critical of many of the opinions drafted by Justice Earls and her democratic colleagues. However, I fully agree with her rebuke of this provision of the judicial standards code; Earl's comments with Law360 should be considered general political speech. This opinion is not unique among conservatives; I share this opinion with other conservative pundits, a former communications director for Senator Berger, and even a former executive director of the Republican Party.
With nearly universal agreement of pundits on both sides of the political spectrum, one would be forgiven for assuming this would be a rare case of both sides coming together to correct issues with the current law. Sadly, this is not the case; Earls' allies instead wish to use this matter to throw racial and partisan bias accusations at the commission and Chief Justice Paul Newby.
The allegations against Newby and the Judicial Standards Commission include the claim that they seek to remove Justice Earls from the court through a convoluted process. Saying that this investigation is an attempt to remove Justice Earls would be the epitome of "making a mountain out of a molehill."
Upon an inspection of this commission, these accusations of a conservative-controlled body coming after a progressive judge end up falling flat on their face. The composition of the Judicial Standards Commission, the history of the commission, and the actual authority of the commission do not support the narrative Earls' supporters are pushing.
The commission is made up of 14 members and is comprised of 6 judges appointed by the North Carolina Chief Justice, 4 lawyers appointed by the State Bar, and 4 citizens (2 members are appointed by the Governor and 1 by each chamber of the legislature). Members sit on the commission for a total of 6 years, except for two judges from the court of appeals who serve as the chair and vice chair and who serve at the pleasure of the Chief Justice. Two panels evenly divide the 14 commission members, with one panel run by the chair and the other by the vice chair of the commission. The composition of the commission's judges currently includes three Republicans and three Democrats.
The commission requires three judges, two bar appointees, and one appointee from both the governor and the legislature on both panels. While the state Bar tends to favor a more left-leaning ideology, let's assume these appointees act as middle-of-the-road moderates. This would mean one panel would consist of two Republican appointees, three Democratic appointees, and two moderate bar appointees, with the other panel being the exact inverse. A formal investigation may only agree to proceed if at least five of the seven members of either panel vote in favor to do so, at which point the other panel would oversee the hearing. A judge is only notified of the investigation once a panel has voted to move the proceedings into a formal investigation.
The Judicial Standards Commission does not have the authority to punish a judge; they can only issue a letter of caution or advise the Supreme Court to take disciplinary action. These recommendations can only be made upon the vote of five members of a panel; the Supreme Court is not bound to these recommendations. A judge may only be sanctioned or removed by the Supreme Court under one of the following grounds:
(1) willful misconduct in office;
(2) willful and persistent failure to perform the judge's duties;
(3) habitual intemperance;
(4) conviction of a crime involving moral turpitude; or
(5) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
The Judicial Standards Commission rarely elevates cases to the state Supreme Court. In the commission's 2022 report, of the 560 cases reviewed by the commission, none were elevated to the state Supreme Court for disciplinary action.
This is consistent with years prior; only a handful of cases have been moved up to the state Supreme Court for disciplinary action. Since Earls joined the court in 2019, the Supreme Court has only issued seven disciplinary orders, with only one case of temporary suspension. This suspension was due to a district court judge having operated as the executor of two former clients' estates, receiving a commission for overseeing the estates, and failing to report this income.
While I agree with Earls on the substance of her First Amendment argument, it is unlikely that the commission is directly targeting the justice. The composition of the commission requires at least two members from either the state Bar or Democratic appointees to side with Republicans in a party-line vote for an investigation. For any disciplinary action to take place, the commission's other panel would, once again, have to find against her by a five-member vote. Only then could the state Supreme Court take any action against Earls to potentially remove her from the court. Not only do many stars have to align for this conspiracy to take place, Newby and other conservatives gain nothing from Earls being removed from the court. Republicans already have a majority on the court and, barring vacancies of Republican members, are set to maintain a majority until at least 2028. Should Justice Earls be removed, Governor Cooper (D) would appoint another Democratic judge to her seat.
Justice Earls' allies wish to make this a campaign tool against the new conservative majority on the Supreme Court. Earls has run into issues about political speech in the past, with these charges being dismissed after an investigation. The most likely outcome would be the same ruling in this case.