North Carolina State Bar v. Tillett

369 N.C. 264

794 S.E.2d 743

The NORTH CAROLINA STATE BAR

v.Jerry R. TILLETT

No. 208PA15

Supreme Court of North Carolina.

Filed December 21, 2016

Katherine Jean, Counsel, and David R. Johnson, Jennifer A. Porter, and G. Patrick Murphy, Deputy Counsels, North Carolina State Bar, for plaintiff-appellee.

Vandeventer Black LLP, Raleigh, by Norman W. Shearin, David P. Ferrell, and Kevin A. Rust, for defendant-appellant.

Roy Cooper, Attorney General, by Melissa L. Trippe, Special Deputy Attorney General, for North Carolina Judicial Standards Commission, amicus curiae.

JACKSON, Justice.

In this case we consider whether the North Carolina State Bar Disciplinary Hearing Commission (DHC) has the authority to investigate and discipline sitting Judge Jerry R. Tillett (defendant) for his conduct while in office. Because we conclude that the DHC lacks this authority, we reverse the DHC's denial of defendant's motion to dismiss and remand this case to the DHC to dismiss with prejudice the complaint of the North Carolina State Bar (State Bar) against defendant.

Defendant has served continuously as a judge in Judicial District One of the General Court of Justice, Superior Court Division, from the time of the circumstances giving rise to this case until the present. On 16 February 2012, the Judicial Standards Commission (JSC) commenced a formal investigation into defendant's "interactions with employees and officials of the Town of Kill Devil Hills, including his involvement in orders entered against the town, and regarding his interactions with the District Attorney's office of the 1st Prosecutorial District including pressuring that office to pursue certain legal actions." Based on its findings and conclusions, the JSC imposed a public reprimand on defendant.

According to the public reprimand, on 4 April 2010, Kill Devil Hills Police detained defendant's adult son for an unspecified reason. Eleven days later, on 15 April, defendant arranged a meeting with officials from the Town of Kill Devil Hills and its police department in defendant's chambers. Defendant complained about his son's detention "as part of a series of other complaints about incidents of misconduct involving" the police department. According to those who participated in the meeting, defendant then became agitated and confrontational in his warnings to town officials to address the complaints and engaged in "discussion of a superior court judge's ability to remove officials from office," causing some individuals to feel "threatened."

The public reprimand also states that throughout 2011 defendant received "communications from Kill Devil Hills police officers with grievances against Chief of Police Gary Britt and Assistant Town Manager Shawn Murphy related to personnel issues." During this period, defendant also received "complaints about the performance of the District Attorney of the 1st Prosecutorial District." Concluding from the complaints "that Chief Britt was guilty of professional malfeasance," defendant attempted to convince the District Attorney and members of his staff "that it was their duty to file a petition for the removal of Chief Britt." The District Attorney and his staff "ultimately concluded that there was insufficient evidence to support such a petition." On 24 June 2011, defendant then sent a letter to Chief Britt notifying him about complaints of his professional misconduct and further warning Chief Britt that "to the extent that allegations involve conduct prejudicial to the administration of justice, conduct violative of public policy, and/or violations of criminal law including obstruction of justice, oppression by official, misconduct in public office and/or substantial offense, this office will act appropriately in accord with statutory and/or inherent authority." This letter was printed on defendant's judicial stationery and defendant signed it "in his capacity as Senior Resident Superior Court Judge."

In addition, the public reprimand notes that on 19 September 2011 defendant drafted and executed an order for production of copies of the private personnel records of several town employees, including Chief Britt and Murphy, to be delivered to him "for an in camera review, for the protection of integrity of information, to prevent alteration, spoliation, for evidentiary purposes and or [sic] for disclosure to other appropriate persons as directed by the Court." Defendant issued this order on his own initiative without a request from any employee of the town, anyone in the District Attorney's office, or any of the complainants who previously had contacted defendant.

The public reprimand further notes that on 5 January 2012, defendant sent a letter to Murphy, also on judicial stationery "and signed in his capacity as Senior Resident Superior Court Judge," alleging receipt of "complaints of professional misconduct" against Murphy and warning Murphy that "to the extent that allegations involve conduct prejudicial to the administration of justice, conduct violative of public policy, and/or violations of criminal law including obstruction of justice, oppression by official, misconduct in public office and/or substantial offense, this office will act appropriately in accord with statutory and/or inherent authority." That same day defendant met with the District Attorney and a member of the District Attorney's staff "in reference to complaints lodged against the District Attorney's office and the office's failure to file a petition against Chief Britt." A sheriff's deputy was present at this meeting in defendant's chambers, which, in conjunction with defendant's "critical and aggressive comments, had the effect of intimidating the officials from the District Attorney's office."

Finally, the reprimand states that even though defendant later recused himself from matters involving complaints against the Kill Devil Hills Police Department and the District Attorney's office, he continued to involve himself in the adjudication of the complaints by communicating with judges who were involved in the matter "through suggested orders, and his appellate filings in defense of such suggested orders."

Based on these findings of fact, the JSC determined that both defendant's initial confrontation with town officials in his chambers and later in his capacity as Chief Resident Superior Court Judge "created a reasonable and objective perception of conflict that tainted his subsequent use of the powers of his judicial office in matters adversarial to these officials." The JSC also determined that defendant's attempts to address complaints against Chief Britt, Murphy, and the District Attorney were "overly aggressive," drove him to become "embroiled in a public feud with these individuals," and caused him to engage in "actions that fell outside of the legitimate exercise of the powers of his office." Furthermore, the JSC found that defendant's "communication with other judges through suggested orders, and his appellate filings in defense of such suggested orders" after he had recused himself, "created a public perception of a conflict of interest which threatens the public's faith and confidence in the integrity and impartiality of [defendant's] actions in these matters." The public reprimand of defendant concluded:

The above-referenced actions by [defendant] constitute a significant violation of the principles of personal conduct embodied in the North Carolina Code of Judicial Conduct.... [Defendant's] overly aggressive conduct displayed toward the District Attorney's office and certain employees of the Town of Kill Devil Hills, and his misuse of the powers of his judicial office in connection thereto, resulted in the public perception of a conflict of interest between [defendant] and the District Attorney's office and the town of Kill Devil Hills, which brought the judiciary into disrepute and threatened public faith and confidence in the integrity and impartiality of the judiciary.

Defendant accepted the reprimand as indicated by his 6 March 2013 signature, and its official filing on 8 March 2013 constituted the JSC's final action on the matter.

On 6 March 2015, exactly two years after defendant accepted the JSC's public reprimand, the State Bar commenced a disciplinary action against defendant by filing a complaint with the DHC. The State Bar alleged that defendant's conduct constituted seventeen separate violations of North Carolina Rule of Professional Conduct 8.4(d)¹ and requested that the DHC take disciplinary action against defendant in accordance with N.C.G.S. § 84-28(a) and section B.0114 of the Discipline and Disability Rules of the North Carolina State Bar. Defendant filed a motion to dismiss the State Bar's complaint dated 16 March 2015 and an answer to the complaint on 30 March 2015. The DHC denied defendant's motion to dismiss on 30 April 2015, and defendant filed a petition for discretionary review with this Court, which was denied and certified to the North Carolina Court of Appeals by order entered on 28 January 2016. Upon reconsideration, this Court issued an order ex mero motu on 27 May 2016 deeming "the question presented by this case to be of such importance that the invocation of our supervisory jurisdiction is warranted." We issued a writ of certiorari to review the following question:

Do the North Carolina State Bar Council and the Disciplinary Hearing Commission have the jurisdictional authority to discipline a judge of the General Court of Justice for conduct as a judge for which the judge has already been disciplined by the Judicial Standards Commission?

This Court stayed all proceedings before the DHC "pending full briefing by the parties in this Court and our determination of this question."

Defendant argues that Article IV, Section 17(2) of the North Carolina Constitution and Chapter 7A, Article 30 of the General Statutes convey to this Court exclusive, original jurisdiction over the discipline of members of the General Court of Justice. Con...