NC Supreme Court secretly squashed discipline of two GOP judges who violated judicial code

This report was first published by Doug Bock Clark, ProPublica, a Pulitzer Prize-winning investigative newsroom.
June 17, 2024

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 process needs a major overhaul in that I don’t think it was set up to deal with the current political atmosphere that judges have been embroiled in,” said Orr, who back in the early 2000s was investigated and received a private warning from the then-Democratic-controlled commission over comments that it deemed to be an impermissible political endorsement. He left the Republican Party in 2021 after being a vocal critic of former President Donald Trump.

Orr added, “It’s important for all the decision-makers in the judicial standards process — the commission, its staff and the Supreme Court — to act in a nonpartisan way to increase trust in the judicial system.”

Since 2011, North Carolina’s Judicial Standards Commission has referred 19 cases to the Supreme Court for judicial discipline, according to the court’s annual reports. In that time, the court has issued 17 public disciplinary orders, ranging from reprimands to suspensions without pay.

Had the Supreme Court followed the commission’s recommendations in the cases of the two Republican judges, it would have meant publicly reprimanding them ahead of elections for both in 2024. Judge Lori Hamilton, a longtime Republican, had campaigned with the slogan, “the ideal conservative.” Judge Caroline Burnette had previously been a Democrat — but she switched her registration before her case got to the Supreme Court, according to public records.

In September 2021, Burnette was conducting a trial when she got into a shouting match with the defendant, Christopher Vaughan, who was facing charges of false imprisonment. Court recordings later published by WRAL News captured a three-minute argument, which escalated after Burnette told Vaughan to “shut up.” When Burnette ordered the bailiff to “take him,” Vaughan rushed Burnette. The bailiff blocked him, the two grappled, and the bailiff shouted that Vaughan had his gun. A police officer who was in the courtroom to testify shot Vaughan in the head, killing him, an incident that was widely reported.

The commission’s work is confidential, but sources say that it soon began investigating Burnette, who had potentially violated multiple parts of the judicial code, including the requirements that a “judge should maintain order and decorum in proceedings” and a “judge should be patient, dignified and courteous.” Burnette declined to comment. A spokesperson for the state court system said Burnette would not respond to ProPublica’s detailed list of questions.

Not long after, in November 2021, Hamilton was overseeing the trial of a man charged with sex crimes against minors. According to court transcripts, Hamilton accused the victims’ mother of bringing them to court late and previously being uncooperative with the state’s lawyers. “I’m going to take you into protective custody to ensure your appearance here at trial,” Hamilton told the mother, ordering that she be handcuffed, detained throughout the trial and denied an attorney. Hamilton also said that the victims should be turned over to Child Protective Services. Court staff were so unsure of how to execute their orders that the bailiff explained to Hamilton that they “don’t know how to book” the mother.

The mother of the victims, whose name is being withheld to protect the identities of her children, said she spent her four days of incarceration worrying about her daughters, crying and asking court staff, “How can you hold me if I’m not charged with nothing?”

The commission soon launched an investigation into Hamilton, sources say. She had potentially violated multiple canons, including that “a judge should uphold the integrity and independence of the judiciary” and that a “judge should be faithful to the law and maintain professional competence in it.” In response to a detailed list of questions from ProPublica, Hamilton answered only one, which asked if she thought that her political affiliation had anything to do with the conservative majority of the Supreme Court going against the commission’s recommendation. “No, I do not,” she replied.

During the commission’s investigations and hearings process, both Hamilton and Burnette stipulated that they had violated the judicial code, according to sources. Those sources said that the commission sent the cases to the Supreme Court to determine final discipline and that the commission recommended that the court give them public reprimands. When the commission determines there to be minor violations, it issues a letter of caution or a verbal warning, which remains private. The vast majority of disciplinary action falls into these categories. But all judicial discipline serious enough to be issued by the Supreme Court becomes public, according to the rules of the commission.

Months after the Supreme Court decided in the fall of 2023 to let Hamilton and Burnette off without public consequences, it issued its most recent disciplinary order. In March 2024, the court concurred with the commission’s recommendation for punishment of Angela Foster, a Black Democratic judge who had pressured a court official to reduce a bond for her son and had taken over a courtroom reserved for other court officials, thereby delaying over 100 cases. The Supreme Court suspended her without pay for 120 days.

At the same time as the court was considering how to handle the two white Republican judges, the commission was weighing another fraught matter.

In March 2023, Earls, the Supreme Court’s lone Black justice and a Democrat, received a letter from the commission informing her that she was under investigation. The letter stated that Earls had been accused of disclosing “confidential information concerning matters being currently deliberated in conference by the Supreme Court.” If the commission found evidence of a serious violation, it could send the case to the Supreme Court, which would make a final determination and could go as far as to expel her.

At the center of the anonymous complaint was the allegation that Earls had told lawmakers and state bar members at two different meetings about proposed rule changes that would give more power to the Republican justices. The complaint, which was made after WRAL News published an article describing the meetings, also alleged that she’d provided confidential information to a reporter.

In her response to the letter, which later was filed in court, her lawyer argued that it had been standard practice for justices to discuss the court’s rule changes with affected parties and that no information had been leaked. Earls’ lawyer also wrote that if the matter proceeded to a hearing, Earls planned to make the investigation public and subpoena “current and former Justices” about their “actions.” In May, the commission dismissed the complaint, providing Earls with verbal and written warnings “to be mindful of your public comments,” according to court documents.

In June, Earls, the only person of color on the court, gave an interview to Law360 in which she criticized Chief Justice Paul Newby and other conservative justices for refusing to address the lack of diversity in the state’s court system. She revealed that Newby had effectively killed its Commission on Fairness and Equity by not reappointing its members and that he had ended implicit bias trainings for judges, which Earls had helped set up. Much of the interview was framed around a Law360 analysis and an outside study that found that the vast majority of state appellate court judges, and the attorneys arguing before them, were white and male. In reference to the findings, Earls said that “our court system, like any other court system, is made up of human beings and I believe the research that shows that we all have implicit biases.” She said that her five Republican colleagues “very much see themselves as a conservative bloc” and that “their allegiance is to their ideology, not to the institution.”

In August, Earls received another letter from the commission alerting her that it had “reopened” the former investigation. The letter warned: “Publicly alleging that another judge makes decisions based on a motivation not allowed under” the code, such as racial or political biases, without “definitive proof runs contrary to a judge’s duty to promote public confidence in the impartiality of the judiciary.”

Rather than letting the investigation proceed in secret again, Earls sued the commission in federal court, seeking an injunction to stop “an on-going campaign” by the commission to “stifle the First Amendment free-speech rights of Justice Earls and expose her to punishment.”

Two weeks after the lawsuit was filed, Democratic state lawmakers held a press conference to call the investigation into Earls “a political hit job” — and one state representative accused Newby of pushing it, though he said he could not reveal his sources. Four sources knowledgeable about Newby’s or the commission’s actions told ProPublica that the chief justice encouraged the investigation. The sources requested anonymity because the inner workings of the commission are confidential and because they feared retaliation.

Newby and Earls declined to comment through a North Carolina Supreme Court spokesperson. Neither responded to questions submitted to the North Carolina Judicial Branch.

The lawsuit led to public outcry, which was fiercely critical of the investigation and which was partially fueled by the fact that Newby had himself made remarkably similar statements alleging that his Democratic colleagues were biased. In the summer of 2019, when Newby was a justice campaigning to become chief justice, he made a speech, first reported by WRAL News, in which he called Earls an “AOC” — referencing progressive U.S. Rep. Alexandria Ocasio-Cortez. He also accused Earls of wanting “to cause social change through our judicial branch,” suggested that she was part of a Democratic strategy to “sue till you’re blue” and warned, “See what kind of judicial activism occurs on your North Carolina court.”

After the speech, the commission, which at the time was under a Democratic court, fielded complaints about Newby. The existence of those complaints has not been previously reported. According to multiple sources, the commission issued Newby a confidential verbal warning, emphasizing he should not so overtly criticize his fellow justices again.

At the time, experts told news outlets that Newby’s statements about Earls were probably protected by the fact that he was campaigning, as the code allows justices greater leeway when seeking reelection. However, in 2023, Earls was also technically in campaign mode and subject to the same protections as Newby. According to Earls’ lawsuit, she had declared her candidacy for her next election many years in advance, as had become standard practice among justices.

Two sources with direct knowledge of the investigations into both Newby and Earls said that Earls faced more scrutiny in terms of both the length and depth of the investigative process. One of those sources, however, said that “there was no bias” in the treatment of Earls. The source chalked up the difference between the two investigations to the fact that in the intervening years, the commission had intensified efforts to rein in the justices as they became more openly contentious about their differing political views.

In January 2024, as Earls’ lawsuit barreled toward a trial, the commission abruptly dropped its investigation. It did not recommend the Supreme Court take any disciplinary action against her.

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