In re Murphy

376 N.C. 219

852 S.E.2d 599

IN RE: Inquiry Concerning a Judge, No. 17-318

J. Hunter MURPHY, Respondent

No. 396A19

Supreme Court of North Carolina.

Filed December 18, 2020

Robinson, Bradshaw & Hinson, P.A., by John R. Wester, Charlotte, Mark W. Merritt, Charlotte, Matthew W. Sawchak, Raleigh, and Lexi M. Fleming, Counsel for the Judicial Standards Commission.

Robert F. Orr, PLLC, by Robert F. Orr, Asheville, and The Hunt Law Firm, PLLC, Durham, by Anita B. Hunt, for respondent.

ORDER OF CENSURE

The issue before the Court is whether Court of Appeals Judge Hunter Murphy, respondent, should be censured for violations of Canons 1, 2B, 3A(3), and 3B(2) of the North Carolina Code of Judicial Conduct amounting to conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. § 7A-376(b). For the reasons that follow, this Court orders that respondent be censured.

On 21 March 2018, Counsel for the Commission filed a Statement of Charges against respondent alleging he had engaged in conduct inappropriate to his office by failing to establish, maintain, and enforce appropriate standards of conduct to ensure the integrity and independence of the judiciary; allowing his family and social relationships to influence his judicial conduct or judgment, and permitting others to convey the impression that they are in a special position to influence respondent; failing to require his staff to exhibit patient, dignified and courteous conduct to lawyers and others with whom respondent deals in his official capacity; and failing to ensure his staff observed the standards of fidelity and diligence that apply to him. In the Statement of Charges, Counsel for the Commission asserted that respondent's actions were inappropriate to his judicial office and prejudicial to the administration of justice constituting grounds for disciplinary proceedings under Chapter 7A, Article 30 of the North Carolina General Statutes.

Respondent filed his answer on 18 May 2018. Vice-Chair Judge R. Stuart Albright, acting as chair of the hearing panel, struck the answer ex mero motu , and respondent filed his amended answer on 14 June 2018. On 6 and 7 June 2019, the Commission heard this matter and entered its recommendation on 13 September 2019, which contains the following findings of fact:

A. Background

1. Respondent is a judge of the Court of Appeals elected to an eight-year term that commenced in January 2017.

2. As a judge of the Court of Appeals, Respondent is entitled to hire three members of his chambers staff—two "research assistants" or "law clerks" as they are commonly called, and one executive assistant or "EA." All members of a judge's chambers staff are employees at will, and can be fired by the employing judge for any reason at any time, as long as the reason is not discriminatory.

3. Law clerks are responsible for researching issues raised in appeals, preparing memoranda for their assigned judge on cases to be argued, and drafting and editing opinions. In drafting and editing opinions, law clerks are also tasked with the important job of checking every citation in draft opinions for accuracy (referred to as cite-checking).

Law clerks also perform a number of other tasks assigned by their judge.

4. For his first two law clerks, Respondent hired one female law clerk, Lauren Suber, and one male law clerk, Clark Cooper. Ms. Suber had just completed a clerkship for a justice of the Supreme Court [of North Carolina] and agreed to clerk for eight months until August 2017. Mr. Cooper had just completed a clerkship for another judge of the Court of Appeals, and prior to that, had clerked for yet another judge of the Court of Appeals and agreed to clerk for two years.

5. Respondent hired his close, personal friend from high school, Mr. Ben Tuite, to serve as both his permanent EA and a third law clerk. Respondent gave Mr. Tuite both express and implied authority to supervise and manage the term law clerks and the operations of his chambers.

6. In March 2017, Mr. Cooper suddenly resigned after less than two months as Respondent's law clerk. To replace Mr. Cooper, Respondent hired Mary Scruggs, who was highly qualified, with good academic credentials, had passed the bar and practiced with a firm before being hired by Respondent.

7. After Ms. Suber completed her clerkship in August 2017, she was replaced by Ms. Chelsey Maywalt. Ms. Maywalt's term began on August 28, 2017 and was scheduled to conclude in August 2018. Ms. Maywalt had excellent recommendations, experience and academic credentials and had just completed a clerkship for another judge of the Court of Appeals.

8. Law clerks at the Court of Appeals are expected to comply with the Law Clerk Code of Conduct. On March 21, 2017, Respondent attended training on the Code of Judicial Conduct, which included review of Respondent's duties to ensure that his law clerks adhere to the same standards of professionalism and diligence as apply to the judge. Later that day, after the training, Respondent was given a copy of the North Carolina Court of Appeals Code of Conduct for Staff Attorneys and Law Clerks to review and provide to his law clerks. Among other things, Canon 3B of the Law Clerk Code of Conduct requires a law clerk "to be faithful to the highest standards of his or her profession and maintain professional competence in it. He or she should be patient, dignified, courteous, and fair to all persons with whom he or she deals in the performance of his or her duties. He or she should diligently discharge the responsibilities of his or her position in an efficient, fair-minded, and professional manner."

9. Mr. Tuite, Ms. Scruggs and Ms. Maywalt later attended a Court of Appeals training program on their obligations under the Law Clerk Code of Conduct.

B. The Working Environment in Respondent's Chambers

10. When Mr. Cooper announced his resignation in March 2017, Respondent reacted with a great deal of animosity that he made known to his law clerks. Respondent and Mr. Tuite willfully made belittling comments or jokes about him to the other law clerks.

11. On one occasion, in or around June 2017, Respondent participated in a group text message with Mr. Tuite, Ms. Suber and Ms. Scruggs. In the group text, Respondent and Mr. Tuite exchanged profane and inappropriate comments and jokes about Mr. Cooper, including encouraging Ms. Suber to sabotage Mr. Cooper's career plans and comparing Mr. Cooper to a member of the terrorist group ISIS.

12. Respondent's active participation in and condoning of the belittling of Mr. Cooper contributed to and enabled a toxic work environment in Respondent's chambers.

13. Mr. Tuite also regularly used profanity during the workday, belittled others and used fear and intimidation while interacting with and supervising the law clerks. Mr. Tuite frequently used the word "fuck" and referred to female law clerks on more than one occasion as "bitch" or "bitching."

14. Respondent observed and was aware of Mr. Tuite's regular use of profanity in his chambers and belittling comments about other court employees and failed to take action to address it when he observed or became aware of it. By failing to address this conduct when it occurred, Respondent condoned Mr. Tuite's workplace misconduct and therefore again contributed to and enabled a toxic work environment.

15. Mr. Tuite was dishonest and did not diligently discharge his duties as the EA or as a law clerk.

16. Respondent was aware of Mr. Tuite's dishonesty and lack of diligence. Ms. Suber in her exit interview on August 10, 2017 specifically informed Respondent that Mr. Tuite was a manipulative liar who handed off his work to others or simply did not do it (including necessary editing and cite-checking), that such conduct was impacting Respondent's reputation and would also cause him to "burn through law clerks," and that Ms. Suber had concerns that Mr. Tuite would be rude to Ms. Maywalt and take advantage of her strong work ethic. Ms. Maywalt had a meeting with Respondent on November 13, 2017 and advised Respondent that Mr. Tuite was dishonest in his communications with other employees at the Court of Appeals. Ms. Suber and Ms. Scruggs advised Respondent on December 2, 2017 that Mr. Tuite was dishonest in his communications with other employees at the Court of Appeals and that he failed to diligently discharge his duties.

17. After learning of Mr. Tuite's dishonesty and lack of diligence on multiple occasions, Respondent failed to address these issues directly with Mr. Tuite ...

18. Mr. Tuite made comments of a sexual or inappropriate nature in the workplace.

19. In early 2017, Mr. Tuite came into the offices of Ms. Suber and Ms. Scruggs on separate occasions early in their clerkships, and without any context closed the doors to their offices and told them that he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them, and stated that he had been sexually harassed in his prior employment by a female co-worker who had pulled him into a vehicle and assaulted him after she "misconstrued" their relationship. Mr. Tuite also told Respondent about this incident, but described it in "vulgar terms."

20. Later, during a cold workday while outside with Ms. Suber, Mr. Tuite stated that he would like to see her in a "wife beater" tank top and shorts on a cold day. Mr. Tuite, on or about the following day, asked Ms. Suber to come into Respondent's office (when Respondent was away from the office), kept the lights off and sat down beside her and told her that he "was married but not blind" or similar words in an apparent attempt to apologize for the inappropriate sexual remark from the previous day. Ms. Suber was offended and upset by the inappropriate and suggestive sexual remarks and non-apology when they occurred, felt unsafe as a result and feared it would occur again. Ms. Suber continued to be upset and uncomfortable about this

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