Hardy, In re, 62

• Decision Date: 24 January 1978
• Docket Number: No. 62,62
• Citation: 294 N.C. 90,240 S.E.2d 367
• Parties: In re Inquiry concerning a Judge, Herbert W. HARDY.
• Court: North Carolina Supreme Court

Page 367

240 S.E.2d 367

294 N.C. 90

In re Inquiry concerning a Judge, Herbert W. HARDY.

No. 62.

Supreme Court of North Carolina.

Jan. 24, 1978.

Rufus L. Edmisten, Atty. Gen., Millard R. Rich, Jr., Deputy Atty. Gen., Andrew A. Vanore, Jr., James E. Scarbrough, Associate Attys., Raleigh, for the Judicial Standards Commission.

Duke & Brown, by John E. Duke, Herbert B. Hulse, Goldsboro, Thomas J. White, Jr., Kinston, for respondent.

HUSKINS, Justice:

We overrule without discussion Respondent's contentions (1) that Article 30 of Chapter 7A of the General Statutes is unconstitutional because it was enacted prior to the time the Constitution was amended authorizing its enactment, (2) that the General Assembly unconstitutionally delegated its legislative powers to the Judicial Standards Commission, and (3) that the procedures followed by the Commission violate Respondent's due process rights under both federal and state constitutions. All these arguments have been answered adversely to Respondent in In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977). We therefore put these matters aside and go directly to the questions remaining: Is the Supreme Court authorized and empowered to order the removal of a judge when the Judicial Standards Commission has only recommended that the judge be censured? If so, should the Respondent Judge in this case be censured as recommended by the Commission or should he be removed from office?

G.S. 7A-376 provides in pertinent part: "Upon recommendation of the Commission, the Supreme Court may censure or remove any justice or judge for wilful misconduct in office, . . . or conduct prejudicial to the administration of justice that brings the judicial office into disrepute."

G.S. 7A-377 provides in pertinent part: "A majority of the members of the Supreme Court voting must concur in any order of censure or removal. The Supreme Court may approve the recommendation, remand for further proceedings, or reject the recommendation."

The provisions of these statutes are parts of the same enactment, relate to the same class of persons and are aimed at suppression of the same evil. The statutes are therefore in pari materia and must be construed accordingly. 73 Am.Jur.2d, Statutes, § 189; Redevelopment Comm. v. Bank,252 N.C. 595, 114 S.E.2d 688 (1960); Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956); Keith v. Lockhart, 171 N.C. 451, 88 S.E. 640 (1916).

In construing the language of statutes we are guided by the primary rule of construction that the intent of the Legislature controls. "In the interpretation of statutes, the legislative will is the all-important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law." 73 Am.Jur.2d, Statutes, § 145; State v. Spencer, 276 N.C. 535, 546, 173 S.E.2d 765, 773 (1970).

If a strict literal interpretation of the language of a statute contravenes the manifest purpose of the Legislature, the reason and purpose of the law should control and the strict letter thereof should be disregarded. State v. Barksdale, 181 N.C. 621, 107 S.E. 505 (1921).

Words and phrases of a statute may not be interpreted out of context, but individual expressions "must be construed as a part of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit." Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 210, 69 S.E.2d 505, 511 (1952).

A construction which will defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E.2d 575 (1952). Where possible, statutes should be given a construction which, when practically applied, will tend to suppress the evil which the Legislature intended to prevent. 73 Am.Jur.2d, Statutes, § 157. See State v. Spencer, supra. "It would violate the elementary rule of construction not to construe it in that way, for we are told that the words in a statute are to be construed with reference to its subject-matter and the objects sought to be attained . . . as well as the legislative purpose in enacting it; and its language should receive that construction which will render it harmonious with that purpose, rather than that which will defeat it . . . ." Manly v. Abernathy, 167 N.C. 220, 221-22, 83 S.E. 343, 344 (1914).

It now becomes our duty to construe and interpret G.S. 7A-376 and -377 in light of these rules.

We first look at Article IV, section 17(2) of the Constitution of North Carolina which reads in pertinent part as follows: "The General Assembly shall prescribe a procedure, in addition to impeachment and address set forth in this section, . . . for the censure and removal of a Justice or Judge of the General Court of Justice for wilful misconduct in office, . . . or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." In obedience to this mandatory provision of the Constitution, the General Assembly enacted Article 30 of Chapter 7A of the General Statutes creating the Judicial Standards Commission, prescribing the grounds for censure or removal and fixing the procedures to be followed. See G.S. 7A-375, -376, and -377. By such enactment it was the intent of the General Assembly to provide the machinery and prescribe the procedure for the censure and removal of justices and judges for wilful misconduct in office, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. When G.S. 7A-376 and -377 are read aright they provide that upon recommendation of the Judicial Standards Commission the Supreme Court may censure or remove any justice or judge, may approve or reject the recommendation of the Commission, or may remand the matter for further proceedings.

Ordinarily when the word "may" is used in a statute, it will be construed as permissive and not mandatory. Felton v. Felton, 213 N.C. 194, 195 S.E. 533 (1938); Rector v. Rector, 186 N.C. 618, 120 S.E. 195 (1923). Whether a particular word in a statute is mandatory or merely directory must be determined in accordance with the legislative intent; and legislative intent is usually ascertained not only from the phraseology of the statute but also from the nature and purpose of the act and the consequences which would follow its construction one way or the other. Art Society v. Bridges, State Auditor, 235 N.C. 125, 69 S.E.2d 1 (1952); State v. Earnhardt, 170 N.C. 725, 86 S.E. 960 (1915).

A recommendation of the Commission that a justice or judge be disciplined in some fashion brings the controversy before the Supreme Court for such action as the Court deems proper. The Commission can neither censure nor remove. It functions as an arm of the Court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. "Its recommendations are not binding upon the Supreme Court, which will consider the evidence on both sides and exercise its independent judgment as to whether it should censure, remove, or decline to do either." In re Nowell, 293 N.C. 235, 244, 237 S.E.2d 246, 252 (1977). The General Assembly designated the Supreme Court as the adjudicatory body to provide the final scrutiny and make the final judgment whether to censure, remove, remand or dismiss the proceeding. Our conclusion in this regard is supported by courts in other jurisdictions which have considered the question. See Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973); In re Robson, 500 P.2d 657 (Alaska 1972); Spruance v. Commission on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209 (1975); In re Kelly, 238 So.2d 565 (Fla.1970); In re Diener, 268 Md. 659, 304 A.2d 587 (1973).

We therefore hold that all options listed in G.S. 7A-376 and -377 are permissive options available to the Supreme Court in disposing of any disciplinary proceeding. G.S. 7A-376 and -377 authorize and empower the Court, unfettered in its adjudication by the recommendation of the Commission, to make the final judgment whether to censure, remove, remand for further proceedings or dismiss the proceeding. This interpretation is in harmony with the rules of statutory construction and promotes the legislative purpose to suppress wilful misconduct by judicial officers and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

We now turn to the question whether Judge Hardy should be removed from office, censured, or whether the proceedings against him should be dismissed.

First we conclude that the Commission's findings of fact are supported by clear and convincing evidence. We therefore accept the facts as established by the findings and adopt them as our own. The conduct of Respondent established by Findings 7, 8, 9, 10 and 11 heretofore quoted verbatim, constitutes wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Crutchfield, 289 N.C. 597, 223 S.E.2d 822 (1975); In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976); In re Stuhl, 292 N.C. 379, 233 S.E.2d 562 (1977); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).

A comparison of Judge Hardy's indiscretions with the judicial misconduct in Crutchfield, Edens and Stuhl reveals striking similarity. Since we followed the Commission's recommendation in prior cases and only censured the offender, fairness requires a similar result here. In view of the Court's power to remove from office a justice or judge for misconduct prejudicial to the administration of justice that brings the judicial office into disrepute, it is appropriate to emphasize that in the future the result in each case will be decided upon its own facts.

For the reasons stated we conclude that Respondent...