In re Chastain

• Decision Date: 01 February 2022
• Docket Number: COA21-127
• Citation: 869 S.E.2d 738
• Parties: In the MATTER OF: Patricia Burnette CHASTAIN
• Court: North Carolina Court of Appeals

869 S.E.2d 738

In the MATTER OF: Patricia Burnette CHASTAIN

No. COA21-127

Court of Appeals of North Carolina.

Filed February 1, 2022

Zaytoun Ballew & Taylor, PLLC, by Matthew D. Ballew, Raleigh, Clare F. Kurdys, and Robert E. Zaytoun, Raleigh, for Respondent-Appellant.

Davis, Sturges & Tomlinson, PLLC, by Conrad B. Sturges, III, Louisburg, for the Petitioner-Appellee.

DILLON, Judge.

¶ 1 Respondent Patricia Burnette Chastain appeals from an order entered by Judge Thomas H. Lock removing her as the Clerk of Superior Court for Franklin County. Though there was evidence in the record that could support his decision, Judge Lock erroneously based his decision, in part, on acts by Ms. Chastain not alleged in the charging affidavit or which do not rise to the level of misconduct. Accordingly, we vacate Judge Lock's Order and remand for his reconsideration in accordance with this opinion.

I. Background

¶ 2 In 2014, Ms. Chastain was elected by the people of Franklin County to serve as their Clerk of Superior Court. She was reelected to a second term in 2018.

¶ 3 In July 2020, Franklin County attorney Jeffrey Thompson commenced this proceeding seeking the removal of Ms. Chastain as Franklin County's Clerk, pursuant to N.C. Gen. Stat. § 7A-105 (2020), by filing an affidavit alleging that she had committed various acts of willful misconduct.

¶ 4 In October 2020, after a hearing on the matter, Judge Lock entered his Order permanently removing Ms. Chastain as the Franklin County Clerk of Court based on findings that Ms. Chastain had engaged in various acts of misconduct, some of which had not been alleged in Mr. Thompson's affidavit. Judge Lock ultimately based his decision on "[t]he nature and type of [her] misconduct in office, the frequency of its occurrence, the impact which knowledge of her misconduct would likely have on the prevailing attitudes of the community, and [her] reckless disregard for the high standards of the Office of Clerk of Superior Court[.]"

¶ 5 Ms. Chastain timely appealed Judge Lock's Order.

II. Analysis

¶ 6 A proceeding regarding the removal of an elected official "is neither a civil nor a criminal action." In re Nowell , 293 N.C. 235, 241, 237 S.E.2d 246, 250 (1977). Rather, it "is merely an inquiry into the conduct of one exercising [official] power to determine whether [s]he is unfit to hold [her office]. Its aim is not to punish the individual but to maintain the honor and dignity of the [office] and the proper administration of justice." Id. at 241, 237 S.E.2d at 250. "Albeit serious," removal from office is "not to be regarded as punishment but as the legal consequence[ ] attached to adjudged [ ] misconduct or unfitness." Id. at 241, 237 S.E.2d at 251.

¶ 7 Here, we must determine whether the matter was properly before Judge Lock and whether he followed the law correctly in removing Ms. Chastain.

¶ 8 This matter was brought forth pursuant to Section 7A-105 of our General Statutes, enacted by our General Assembly to provide the procedural mechanism for the removal of the Clerk of Superior Court in a county. Our General Assembly, though, only has the authority to prescribe the procedure and the conditions under which an elected official may be removed, where such is not otherwise provided for by our Constitution :

"[I]t is firmly established that our State Constitution is not a grant of power. All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution [or by the federal constitution]."

Baker v. Martin , 330 N.C. 331, 334-37, 410 S.E.2d 887, 888-91 (1991) (considering the authority of our General Assembly to enact legislation requiring any individual seeking appointment to serve out an unexpired term of an elected judge must be a member of the same political party as the judge being replaced).

¶ 9 We, therefore, must first determine the limitations placed on our General Assembly by our Constitution in prescribing a mechanism for the removal of a county's duly elected Clerk.

A. Article IV

¶ 10 The Clerk of Superior Court in a county is a constitutional officer, whose office is established by Article IV, section 9(3) of our Constitution. Our Constitution provides two different avenues by which an elected Clerk may be removed. Pertinent to this matter and as more fully examined below, one constitutional avenue allows for a Clerk to be removed from her current term of office for mere "misconduct" in office, while the other avenue allows for a Clerk to be permanently disqualified from holding office for "corruption or malpractice in [ ] office."

¶ 11 The first constitutional avenue is found in Article IV of our Constitution. Article IV establishes our judicial branch, including the office of Clerk in each county. Section 17 empowers the "senior regular resident Superior Court Judge serving the county" to remove the county's Clerk for "misconduct or [for] mental or physical incapacity[.]" N.C. Const. art. IV, § 17 (4) (emphasis added).

¶ 12 Significantly, Article IV confers on a single individual, the authority to remove the elected Clerk in a county; namely, the senior regular resident Superior Court Judge in that same county. Accordingly, no other judge may be conferred with jurisdiction over the subject matter of removing a Clerk for misconduct under Article IV. Indeed, consider that Article IV confers on our Senate only the authority to conduct an impeachment trial for the removal of our Governor. N.C. Const. art. IV, § 4. And it is unquestioned that our General Assembly may not confer on any other body or judge the authority to conduct such impeachment trial.

¶ 13 Accordingly, since Judge Lock is not the senior regular resident Superior Court Judge in Franklin County, he lacked any authority to remove Ms. Chastain for mere "misconduct" under Article IV. The only individual currently conferred with this authority under Article IV is Judge John Dunlow, Franklin County's current senior regular resident Superior Court Judge.

¶ 14 It may be that Judge Dunlow has an ethical conflict under our Code of Judicial Conduct to consider Ms. Chastain's removal for misconduct (or incapacity) under Article IV. Indeed, after a hearing on Ms. Chastain's motion to have Judge Dunlow disqualified from hearing the matter, another judge ordered that Judge Dunlow was ethically required to recuse himself based on a letter Judge Dunlow had written which contained "conclusory language regarding" one of the acts of misconduct that Ms. Chastain was alleged to have committed.

¶ 15 However, since our Constitution does not confer subject-matter jurisdiction on anyone else to consider an elected Clerk's removal for misconduct under Article IV, the Rule of Necessity applies. Under this Rule, a judge may hear a matter, notwithstanding that his participation may violate a judicial ethical canon, where his disqualification "would result in a denial of a litigant's constitutional right to have a question properly presented to such a court." Lake v. State Health Plan for Teachers & State Emps. , 376 N.C. 661, 664, 852 S.E.2d 888, 890 (2021).

¶ 16 Our Supreme Court has cited to the Rule of Necessity in holding that a Governor may decide a clemency request though he had previously been involved in the prosecution of the criminal making the request when previously serving as Attorney General. Bacon v. Lee , 353 N.C. 696, 717-18, 549 S.E.2d 840, 854-55 (2001) (noting that the Governor is the only individual constitutionally empowered to hear clemency requests). Our Business Court also relied on the Rule of Necessity in considering the propriety of members of a county board of commissioners to sit in judgment of the removal of one of its members, notwithstanding ethical concerns:

The court cautions that it also has not held that any removal from office would be foreclosed even if bias could be proven in any further proceeding. The court is aware of no authority by which the Board could delegate its decision making by appointing a special committee as might a private corporation. As such, other than a recall election, it is the only body having authority to consider removal. There are cases where courts have upheld even biased quasi -judicial decisions when they were made by the only governmental body that had the power to make the finding. They did so employing a doctrine referred to as the "rule of necessity."

Berger v. New Hanover County Bd. of Comm'rs , 2013 NCBC 45, ¶74 (2013) (emphasis in original).

¶ 17 The fact that it was Ms. Chastain who sought Judge Dunlow's recusal does not change our analysis concerning Judge Lock's lack of authority to consider her removal under Article IV. As our Supreme Court has stated, "we have never found that a party can waive the fundamental requirement that a court have subject matter jurisdiction." In re T.R.P. , 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).

B. Article VI

¶ 18 Having concluded that the Article IV avenue could not serve as the basis for Judge Lock's decision to remove Ms. Chastain from office, we must consider the other constitutional avenue by which a sitting Clerk may be removed, found in Article VI. Article VI prescribes that certain classes of individuals are disqualified from holding any office. Relevant to this present case, a Clerk may be removed from her current term as a consequence of being disqualified from holding any office under Article VI where she is "adjudged guilty of corruption or malpractice in any office[.]" N.C. Const. art. VI, § 8 (emphasis added).¹

¶ 19 Clearly, this Article VI standard is higher than the mere "misconduct" standard found in Article IV. But unlike Article IV, Article VI does not specify any procedure or confer authority on any particular judge or body to make disqualification determinations based on acts of corruption or malpractice. Our General Assembly may, therefore, prescribe a procedure....