In re Cline

• Citation: 749 S.E.2d 91
• Decision Date: 01 October 2013
• Docket Number: No. COA12–964.,COA12–964.
• Parties: In the Matter of Tracey E. CLINE.
• Court: Court of Appeal of North Carolina (US)

749 S.E.2d 91

In the Matter of Tracey E. CLINE.

No. COA12–964.

Court of Appeals of North Carolina.

Oct. 1, 2013.

Appeal by Tracey E. Cline from an order entered 2 March 2012 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 13 February 2013.

Patterson Harkavy, LLP, Raleigh, by Burton Craige and Narendra Ghosh, and Law Office of Kerstin Walker Sutton, PLLC, Durham, by Kerstin Walker Sutton, for appellee.

Van Camp, Meacham & Newman, PLLC, Pinehurst, by James R. Van Camp and Patrick M. Mincey, for Tracey E. Cline.

STEELMAN, Judge.

In a proceeding pursuant to N.C. Gen.Stat. § 7A–66 for removal of a district attorney from office, the trial court did not err in denying appellant's motion to continue where statute mandated a specific time period within which the matter must be heard. Where N.C. Gen.Stat. § 7A–66 did not provide for discovery, and no other statute or rule created such a right, appellant was not entitled to discovery. Where the trial court defined the burden of proof as clear, cogent and convincing evidence, and it was clear from the proceedings that this burden was upon the party that initiated the proceedings, the trial court did not err. The trial court's rulings did not violate appellant's right to due process. The standard set forth in N.C. Gen.Stat. § 7A–66 of conduct prejudicial to the administration of justice which brings the office into disrepute is not unconstitutionally vague. Where the trial court found that appellant's speech was made with actual malice, it was not protected speech under the First Amendment. Where the matter was heard without a jury, it is presumed that the trial court considered only admissible evidence, and the trial court did not err in admitting lay testimony.

I. Factual and Procedural History

On 13 January 2012, Durham attorney Kerstin Sutton filed a sworn affidavit pursuant to N.C. Gen.Stat. § 7A–66 charging Tracey Cline (Cline), the elected District Attorney for Durham County, with numerous grounds for suspension or removal from office. On 27 January 2012, the trial court found probable cause to suspend Cline, and ordered that an inquiry be held pursuant to N.C. Gen.Stat. § 7A–66. The hearing was originally scheduled for 13 February 2012, but was continued until 20 February 2012 “to allow Ms. Cline time to recover from an illness and to employ an attorney.” On 17 February 2012, the trial court denied Cline's second motion to continue the matter until the first Monday in March 2012. However, the trial court entered an order limiting evidence to “statements made by Tracey Cline in written court filings and in open court on the record as shown on transcripts of record[,]” and stated that Cline “would not be called upon to present evidence until Friday, 24 February 2012.”

On 20 February 2012, the trial court heard from Ms. Sutton, as well as the following additional witnesses: Staples Hughes, Director of the North Carolina Office of the Appellate Defender; Tracy Hillabrand, Durham County Deputy Clerk of Superior Court; Angela Kelly, Durham County Assistant Clerk of Superior Court; Thomas Maher, Director of the North Carolina Office of Indigent Defense Services; Cheri Patrick, Durham County private family law attorney; and David Ball, a jury consultant. The trial court took judicial notice of the cases cited by Ms. Sutton in her complaint, and admitted into evidence various filings by Cline and court transcripts in those cases.

At the conclusion of the evidence presented against her, Cline moved that the court define the burden and standard of proof. The court defined the burden of proof under N.C. Gen.Stat. § 7A–66 as “clear, cogent and convincing evidence[.]” Cline moved to dismiss for insufficiency of the evidence, for violations of substantive due process, for vagueness of the statute, and on the grounds of constitutionally protected speech. The trial court denied Cline's motions to dismiss for due process and statutory vagueness, and withheld ruling on the protected speech issue.

On 24 February 2012, Cline testified, and was cross-examined on 27 February 2012. Additional witnesses testified on her behalf: Susan Perez–Trabis, a woman whose daughter was the victim of a crime that Cline prosecuted; Bill Cotter, a Durham County attorney; Chief District Court Judge Marcia Morey; and Durham Police Chief Jose Lewis Lopez, Sr.

On 29 February 2012, at the close of all of the evidence, Cline renewed her motions to dismiss. The trial court then heard the arguments from the parties as to the protected speech issue. The trial court denied Cline's motions to dismiss, but again reserved ruling on the protected speech issue.

On 2 March 2012, Judge Hobgood filed an order removing Cline from the office of District Attorney for Durham County. The trial court found that Cline's statements “made verbally and in written court documents about Judge Orlando F. Hudson, Jr.¹ that have been quoted in this Order are not supported by facts and have brought the office of the Durham County District Attorney into disrepute.” The trial court further found that Cline's allegation of judicial corruption on the part of Judge Hudson was “not only false; it is inexcusable and clearly, cogently and convincingly demonstrates the personal animosity and ill will of Tracey E. Cline toward Judge Hudson and her actual malice in making the statements.”

The trial court concluded that certain of Cline's statements, “though vehement, caustic and unpleasantly sharp in attacking Judge Hudson, and although untruthful, may well fall under the umbrella of protected speech under the First Amendment.” Although those statements “violate North Carolina State Bar Rule of Professional Conduct 8.2 and are abusive and repetitive[,]” the trial court concluded that Cline had qualified immunity to utter them.

The trial court further found that certain of Cline's statements were not protected by the First Amendment, and constituted grounds for removal from office. The statements that the court found to be a basis for removal were:

19. “The District Attorney alleges, based on personal knowledge that this Honorable Court's [Judge Hudson] misconduct involves more that an error of judgment or a mere lack of diligence; this Court's actions encompasses conduct involving moral turpitude, dishonesty and corruption.” Exhibit 1, page 1, Conflict of Interest Between the State and This Honorable Court, State v. Dorman.

...

24. “The District Attorney may personally accept the planned purposeful personal attacks of this Court [Judge Hudson], but there are some sacrifices that are too great for the District Attorney to accept, kidnapping the rights of victims and their families, holding these rights for hostage until the prosecutor plays the game would bankrupt the credibility of our court system and Justice will not play that Game.” Exhibit 1, page 11.

...

28. “The intentional malicious misconduct of this Court [Judge Hudson] is covered by the robe, and rationally relied on by reporters and the public. Then media mayhem—another prosecutor withheld evidence; this shameful disgraceful conduct is unimaginable, but true with this Honorable Court. This is gross misconduct.” Exhibit 3, Pages 79–80 Paragraph 299.

...

39. “This Honorable Court [Judge Hudson] is in total and complete violation of the North Carolina Code of Judicial Conduct and ... will continue to violate the North Carolina Code of Judicial Conduct with regard to the rights of others, no regard of the constitutional protections of the victims of crime, and no regard to the simple difference between right and wrong.” Exhibit 5, Page 272, Paragraph 1014.

40. “Orders full of false findings are relayed to and relied upon by the press to agitate or ignite even more distrust in the prosecutors, law enforcement and the entire criminal justice system and for the root of this unjustified contempt to be conceived in the womb of justice, a judge, sworn to be fair and impartial, destroys the dignity of the office of this Honorable Court [Judge Hudson] and for those who use this Court for special situations outside the lines of right and wrong; don't hide your dirty hands; and to those who have seen, and know, yet turn a blind eye, acknowledge your hands are covered with the blood of justice, And be ashamed.” Exhibit 5, Page 283.

These findings were specific statements made by Cline in the cases of State v. Dorman, 10 CRS 7851, (findings of fact 19 and 24) State v. Yearwood, 99 CRS 65452, 65460, 65461, and 65462, (finding of fact 28) and State v. Peterson, 01 CRS 24821 (findings of fact 39 and 40). The trial court concluded that the statements listed

in the findings of fact paragraph numbers 19: “misconduct ... involving moral turpitude, dishonesty and corruption,” paragraph 24: “kidnapping the rights of victims and their families,” paragraph 28:

“intentional malicious conduct,” paragraph 39: “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct,” and paragraph 40: “the root of this contempt to be conceived in the womb of justice, a judge, ... acknowledge that your hands are covered with the blood of justice, and be ashamed” are not protected by any guarantees of free speech under the First Amendment, nor did Tracey E. Cline possess a qualified immunity to make those untruthful statements with reckless disregard for the truth. This false, malicious, direct attack on Judge Orlando F. Hudson, Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publically, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record. These specific statements were made with actual malice and with reckless disregard for the truth.

The trial court concluded that Cline made these statements with actual malice, removing them from the protections of the First Amendment and...