The North Carolina decision exempting judges from attorney discipline: Part I - the main opinion

I have recently started a series of blogs about the decision of North Carolina Supreme Court absolving an influential freemason Judge Jerry Tillet who was involved in abuse of office while he was trying to strong-arm police and town authorities who dared to arrest his son to back off his son's case, and who then pursued those public officials in the courtroom, before and even after recusal.

In that decision, 4 days before Christmas, the North Carolina Supreme Court claimed that the only way that judges in North Carolina (including themselves, authors of the decision) can be disciplined is through judicial discipline - even if they remain licensed attorneys while on the bench, and even when being an attorney in good standing is a pre-requisite of getting on the bench and remaining on the bench.

As I promised, I will publish a detailed analysis of the decision, which consists of:

• a main decision by judge Barbara Jackson, with a concurrence from one other judge; and
• separate concurring opinions from five other judges of the court.

This blog is about the main decision in this plurality opinion, by Judge Barbara Jackson.

The main decision includes an interesting insight into the history of attorney regulation, regulation and impeachment of judges in North Carolina, and into the meaning of the "practice of law" in North Carolina.

While lawyers constitute a dominant force in all three branches of the government, being it central or local, state or federal, executive, legislative or judicial, the core issue of what is regulated - what constitutes the "practice of law" is not clearly defined in any of regulating jurisdictions, state or federal.

The North Carolina main decision in Judge Tillett's case makes the murky waters of attorney regulation even murkier - if that was at all possible.

First, the North Carolina State Constitution, Article IV Section 22, declares the following:

"Sec. 22.  Qualification of Justices and Judges.

Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of District Court."

And, as Judge Barbara Jackson points out in the decision, the "practice of law" in North Carolina involves being a judge:

Of course, Judge Jackson's and the statutory definition of the practice of law as being a judge, runs contrary to the claim by the judicial system itself that judges in North Carolina are prohibited to practice law,

which adds even more conceptual mess to Judge Barbara Jackson's convoluted logic in Judge Tillett's case - because the prohibited practice of law was exactly what Judge Tillett was doing when he was trying to pressure police and town officials on behalf of his son.

Thus, since only persons "duly authorized to practice law" can be judges of a certain level in North Carolina, such a constitutional provision must include a provision for removing authorization to practice law for sitting judges.

Yet, that's what North Carolina Supreme Court, themselves judges, and thus, members of class interested in the decision, blocked attorney regulatory authorities from doing in Judge Tillett's case, and, by extension and precedential power, in regards to all other judges in the State of North Carolina.

So, here are some rules about the "practice of law" and judicial practice in the State of North Carolina:

• what constitutes "the practice of law" is not defined in North Carolina by statute, and what constitutes unauthorized practice of law, is decided on a case-by-case basis;
• judges of a certain level are required by the North Carolina Constitution to be attorneys admitted to "practice law";
• after the judge, admitted to practice law, comes to the bench of North Carolina, he is then prohibited to practice law;
• when a judge may no longer practice law, the State Governor must declare a vacancy on the bench, by statute.

This conceptual mess is not of my doing - it naturally flows from the laws and judicial decisions of North Carolina Supreme Court.

And, here are some more points about procedural history of attorney and judicial regulation in North Carolina, and about Judge Barbara Jackson's dishonest and self-serving decision in Judge Jerry Tillett's case.

FRAMING OF THE QUESTION BEFORE THE COURT

Judge Barbara Jackson claimed that the question before the NC Supreme Court in Judge Tillett's case is:

Yet, the question was not about Judge Tillett's misconduct "while in office".

When Judge Tillett tried to pressure the police and town officials into releasing his son arrested by the police, Judge Tillett did not act as a public official, because, as a judge, he had no say in a case where criminal charges were not yet filed with the court, and even when they would be, had no say in a case involving his own son.

So, misconduct of Judge Tillett was not "misconduct while in office", but misconduct of Jerry Tillett as a private individual who happened to be a licensed attorney, and who, as such, was clearly subject to the disciplinary jurisdiction of DHC.

By framing the question before the court the way Judge Barbara Jackson did it, Judge Jackson committed judicial misconduct of her own, since she clearly protected a judge who was also a licensed attorney, from a well deserved disbarment, for private conduct as an attorney - for which another judge, Judge Ethelridge, was disbarred, and while Judge Tillett's private misconduct was clearly within jurisdiction of DHC, as that jurisdiction was described by the same judge Jackson in the same Tillett opinion.

THE HISTORY OF ATTORNEY AND JUDICIAL REGULATION IN NORTH CAROLINA

The opinion indicates that:

• no judges have been removed through impeachment in North Carolina since 1868;
• regulation of attorneys in North Carolina started in 1933, and

North Carolina State Bar being an "agency of the State", and not a trade association.  Notably, the North Carolina State Bar is not an "arm of the court", as federal courts often rule, but an Agency (meaning, administrative agency) of the State - and thus, North Carolina State Bar belongs in the Executive branch of North Carolina government.

• in 1971 the General Assembly enacted the Judicial Standards Commission Act, which was then authorized in 1972 through an amendment to the North Carolina State Constitution, Article IV, Section 17(2).

• in 1975 the General Assembly added a Disciplinary Hearing Commission within the North Carolina State Bar, and vested it with broad jurisdiction to exercise its powers: "any attorney admitted to practice law in this State is subject to disciplinary jurisdiction of this Council".

The establishment of the Disciplinary Hearing Commission, with the wording of the statute giving to DHC authority to discipline "any" attorney admitted to practice law in North Carolina, at a later date than the Judicial Standards Commission (JSC), clearly indicated that JSC does not have exclusive jurisdiction to deal with misconduct of judges, and that DHC can deal with regulating of judges as licensed attorneys, based on violation of rules of professional conduct of attorneys.

THE PRECEDENTS

The two precedents that the North Carolina Supreme Court quoted in its decision: about disbarment of

1. Judge James Ethridge, who was disbarred by DHC for his attorney misconduct committed before he came to the bench (stealing from his client's trust account); and of
2. Judge Mark Badgett who was first removed from the bench by JSC for misconduct in office (racism), and then disbarred by DHC.

First, the NC Supreme Court claimed, while referencing these two precedents and distinguishing them on the merits, that they are not mandatory on the court, because they were decision of a lower appellate court, the Court of Appeals, and not of the NC Supreme Court.

Nevertheless, the NC Supreme Court "distinguished" these precedents, even though they are not really distinguishable.

The court said that:

• in Etheridge, misconduct in question was committed by Judge Etheridge before becoming a judge - even though the disciplinary proceedings commenced while Judge Ehteridge was a judge, Judge Etheridge was disbarred, and then the State of North Carolina dealt with a conundrum of whether it has to pay Judge Etheridge his salary until the end of his term because he was an elected - and not impeached - public official, even though he no longer met constitutional qualifications for a judicial office;
• in Badgett, misconduct was judicial, and committed on the bench, but Judge Budgett was removed from the bench by the JSC (during his re-election campaign, with a prohibition to ever be a judge again), and the former Judge Budgett was only then disbarred by the DHC - so DHC, according to NC Supreme Court, properly had jurisdiction over such proceedings involving a judge's misconduct while on the bench;
• in Tillett, judge Tillett was not removed from the bench, misconduct was both non-judicial (acting as his son's representative and attempting to intimidate the police and town officials into dropping his son's case), and judicial (presiding over complaints against police chief and town officials who did not budge to those threats, then recusing from such cases, and after recusal, trying to influence judges to whom the cases were transferred).

Judge Jackson's mental gymnastics in order to absolve Judge Tillett of attorney discipline despite a clear provision in the statute enacted 3 years after the enactment about judicial disciplinary commission - and, in the same breath, to protect all judges in the State of North Carolina, including herself, from the reach of attorney discipline, while continuing to regulate the "mere mortal" attorneys who are not judges - can be presented in a table:

When did misconduct occur, was misconduct during court proceedings	Before becoming a judge	When a judge	When disciplinary proceedings started	Disciplinary result
Etheridge	X, no		While still on the bench	DHC has jurisdiction, Disbarred
Badgett		X, yes	After resignation	DHC has jurisdiction, Disbarred
Tillett		X, no	While still on the bench	DHC has no jurisdiction

The table shows that there is no logic whatsoever in Judge Jackson's decision about Judge Tillett:

• Judge Badgett was subject to DHC jurisdiction for his misconduct as a judge committed during court proceedings - which, by Judge Jackson's logic, should be exclusively in the hands of JSC.

Judge Tillett's misconduct, on the contrary, was not a misconduct during court proceedings, it was private conduct before those proceedings against his son commenced, and after his recusal from proceedings against public officials who did not budge to his intimidation.

In both of these instances, Judge Tillett did not act as a judge, but as a private individual, and was clearly subject to jurisdiction of DHC.

Moreover, as Judge Jackson must know as a seasoned attorney and judge, the timing of prosecution is not what is relevant to determine rights of parties - the time of the offense is relevant, and Judge Badgett's misconduct was committed while he was still a judge.

Because of Judge Jackson's convoluted logic, the following rule can be discerned from these three cases, and appears to be now the law in the blessed state of North Carolina:

• DHC does have jurisdiction over potential disbarment of Judge Jerry Tillett - but only when Judge Tillett gets off the bench, then, just like in Judge Badgett's case, DHC can disbar him, right on retirement or resignation.

Until then, even though Judge Tillett is a licensed attorney, and being a licensed attorney is the required constitutional qualification for a judge, DHC is prohibited to REVOKE Judge Tillett's LAW LICENSE - because Judge Tillett is a judge.

And, this convoluted logic also explains why, despite the fact that JSC was created because of claims that judges in North Carolina are not disciplined enough (no judges impeached since 1868), the JSC statute is now used by JSC and by the NC Supreme Court, in a self-serving manner, to protect judges committing misconduct, as private individuals, OFF the bench, from disbarment while they are not disciplined by JSC ("public reprimands" do not count as effective discipline -  see the story of Michigan Judge Lisa Gorcyca who received a standing ovation from the local bar after she was publicly reprimanded for egregious conduct, but was allowed to remain on the bench).

But, if the NC Supreme Court allows DHC jurisdiction and discipline after judges leave the bench, for judicial conduct that has led to discipline - and Judge Tillett, just as Judge Badgett before him, was disciplined (public reprimand), just not as severely as Judge Badgett - DHC must be now eagerly waiting the end of term of Judge Jerry Tillett, which ends - ta-da! - in 2018.

Of course, Judge Tillett, to escape disbarment, may run for re-election - but, voters should be forewarned by that time that it is not "public service" that Judge Tillett is seeking by a potential re-election in 2018, but self-protection from disbarment.

And, of cousre, I will eagerly follow, and report, on whether the North Carolina Disciplinary Hearing Council will pursue the discipline of Judge Tillett when he gets off the bench - and into the DHC's open arms.

Stay tuned.