IN RE INQUIRY CONCERNING A JUDGE

• Decision Date: 22 November 2002
• Docket Number: No. 139A01-2.,No. 240,240,139A01-2.
• Citation: 584 S.E.2d 260,356 N.C. 389
• Court: North Carolina Supreme Court
• Parties: In re INQUIRY CONCERNING A JUDGE, No. 240 Gregory R. Hayes, Respondent.

584 S.E.2d 260

356 N.C. 389

In re INQUIRY CONCERNING A JUDGE, No. 240 Gregory R. Hayes, Respondent.

No. 139A01-2.

Supreme Court of North Carolina.

November 22, 2002.

William N. Farrell, Jr., and James J. Coman, Special Counsel, for the Judicial Standards Commission.

Sigmon, Sigmon, Isenhower & Poovey, by W. Gene Sigmon and Nathaniel J. Poovey, Newton; and Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by E. Fielding Clark, II, and Forrest A. Ferrell, Hickory, for respondent-appellant.

WAINWRIGHT, Justice.

This proceeding is before the Court upon the recommendation of the Judicial Standards Commission that Gregory R. Hayes (respondent), a judge of the General Court of Justice, District Court Division, Twenty Fifth Judicial District, be removed for willful misconduct in office and for conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of Canons 1, 2A, and 3A(3) of the North Carolina Code of Judicial Conduct. By letters dated 18 March 1999, 4 August 1999, and 24 September 1999, the Commission notified respondent that it had ordered a preliminary investigation into matters involving an equitable distribution case, sexual advances toward a deputy clerk of court, and acceptance of gifts and favors from attorneys who appeared before him, to determine whether formal proceedings should be instituted against him. The correspondence informed respondent of the matters to be investigated, that the investigation would remain confidential in accordance with N.C.G.S. § 7A-377 and Commission Rule 4, and that respondent had the right to present for the Commission's consideration any relevant material that he might choose.

More specifically, the alleged matter addressed in the letter dated 18 March 1999 was based upon a complaint filed with the Commission by Morganton, North Carolina, lawyer Larry A. Ballew. Ballew alleged improprieties in respondent's denial of his motion to continue an equitable distribution case (Ross v. Ross, Burke County file number 97 CVD 302) in which Ballew appeared as counsel. Ballew was later interviewed by an SBI agent concerning the matters relative to the Ross complaint. It appears from this interview with Ballew that the focus of the investigation shifted to matters concerning claims by Tanya Lynn Isenhour, a deputy clerk in the Burke County Clerk's Office. Allegations as to respondent's actions toward Isenhour were addressed in the notice letter dated 4 August 1999 and are the subject of the instant proceeding. The allegations made by Ballew concerning the Ross case and the allegations of respondent's acceptance of gifts and favors from attorneys, as contained in the 24 September 1999 notice letter to respondent, were apparently dismissed by the Commission at the preliminary investigation stage, as no such allegations appear in the complaint filed subsequent to the investigation.

Special counsel to the Commission filed a verified complaint against respondent with the Commission on 14 September 2000. Respondent was served with a copy of the notice of complaint and complaint on 20 September 2000.

The complaint alleged in pertinent part the following:

3. The respondent has subjected a district court judge and a deputy clerk of court to verbal statements and physical acts unbecoming to him and demeaning to the dignity, integrity, and honor of the judicial office on the following occasions:

a. While attending a party at Lake Hickory in the Summer of 1997, the respondent encountered Judge Nancy L. Einstein and her 13-year old daughter on the dock. The respondent, who had been drinking, hugged Judge Einstein and told her he had a "hard-on", indicating he was sexually aroused. The respondent's statement was made in the presence of and loud enough to be heard by Judge Einstein's 13-year old daughter.

b. The respondent held court in Burke County on July 21, 22, and 24, 1998. After court concluded on July 21st, the respondent asked courtroom clerk Tanya L. Isenhour, who had begun employment as a deputy clerk of the Burke County Clerk of Superior Court two (2) months earlier, about her job satisfaction and marital status. The respondent followed these inquiries with specific questions related to whether she went out, where did she go, and what clothing, including underwear, did she wear when she went out. Isenhour told the respondent that her choice of underwear was none of his business. The respondent then asked Isenhour to go to the lake with him on July 24th, but she declined. On July 22nd, the respondent invited Isenhour to go to lunch with him, but she declined. Two (2) days later after court ended on July 24th, the respondent renewed his invitation to Isenhour to go to the lake by asking her if she had brought her bathing suit. When Isenhour told the respondent she had no bathing suit with her because she was not going to go with the respondent, he suggested she just wear her bra and panties, but Isenhour again declined to go. The respondent did not renew his invitation but asked for a raincheck and again was refused by Isenhour.

The respondent next held court in Burke County on October 27, 28 and 30th, 1998. Isenhour served as the respondent's courtroom clerk for that period and went to his chambers after court on October 30th with continuance orders for his signature. The respondent was on the telephone at the time but signaled Isenhour to stay. When the respondent completed his call, Isenhour asked the respondent if he had missed being in Burke County. The respondent approached Isenhour and said, "I'll show you how much I missed you." The respondent then grabbed her hand in his and rubbed her hand against his genitals, grabbed and rubbed her genitals with his hand, and asked if she could tell that he missed her. Isenhour broke free and protested the respondent's actions, but the respondent approached her again and tried to hug her. When Isenhour pushed the respondent away, he retreated but offered his phone number and indicated he would like to date her and have sexual intercourse with her. Isenhour told the respondent that would not happen, and she knew all about him. The respondent demanded an explanation from her, blocked the door with his hand after grabbing her wrist, and prevented her from leaving until she explained herself.

4. The actions of the respondent constitute willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute and are in violation of Canons l, 2A, and 3A(3) of the North Carolina Code of Judicial Conduct.

On 6 October 2000, respondent filed a verified answer, response, and defenses to the complaint, which provided in pertinent part as follows:

3. The initial allegations contained in Paragraph 3 are denied.

a. As to the allegations contained in Subparagraph 3(a) it is admitted that the Respondent, Judge Gregory R. Hayes, attended a party at Lake Hickory in the summer of 1997 and Judge Nancy L. Einstein was present at the party. It is admitted that the Respondent, Judge Gregory R. Hayes had a social alcoholic drink or drinks as did most guests at the social function including the Complainant Nancy L. Einstein. It is specifically denied that the Respondent, Judge Gregory R. Hayes, hugged Nancy L. Einstein or made any off-color or inappropriate remark to or towards her or in the presence of her daughter. It is further specifically and emphatically denied that he made any remark to Nancy L. Einstein or anyone else concerning the physiological state of his anatomy or male private parts. The Respondent, Judge Gregory R. Hayes' wife was present with the Respondent, Judge Gregory R. Hayes during the entirety of the social function and nothing inappropriate was said or done by the Respondent, Judge Gregory R. Hayes. The remaining allegations contained in Subparagraph 3(a) are denied.

b. As to the allegations contained in Subparagraph 3(b) it is admitted that the Respondent, Judge Gregory R. Hayes as a Judge of the General Court of Justice held Court in Burke County on July 21, 22 and 24, 1998. It is admitted that the deputy courtroom clerk, Tanya L. Isenhour, had begun employment as a deputy clerk under the tenure of the then Clerk of Court, Iva Rhoney. Tanya L. Isenhour had begun her employment some two months earlier. It is admitted that there were conversations between Judge Gregory R. Hayes and the deputy clerk regarding her job satisfaction, her knowledge of the job and her duties and abilities as well as conversations concerning her work. The remainder of the allegations contained in Subparagraph 3(b) are denied.

As to the allegations contained in the last paragraph of Paragraph 3 of the Complaint, it is admitted that the Respondent, Judge Gregory R. Hayes held Court in Burke County on October 27, 28 and 30 in 1998 and that the Complainant deputy clerk served as Courtroom Clerk during that period. It is admitted that as a part of her official duties the Complainant deputy clerk, went into the Judge's Chambers with Continuance Orders for Judge Hayes' signature. It is specifically and emphatically denied that the Respondent, Judge Gregory R. Hayes made any inappropriate advances towards Tanya L. Isenhour or inappropriately approached her or said to her or anyone else "I'll show you how much I missed you", or had made any statement to her in that context. It is specifically and emphatically denied that the Respondent, Judge Gregory R. Hayes had any physical contact with the Complainant deputy clerk, Tanya L. Isenhour. It is specifically denied that Judge Gregory R. Hayes made any sexual overtures or comments of a sexual nature to the deputy clerk, Tanya L. Isenhour or that the deputy clerk, Tanya L. Isenhour made any statements to him other than statements having to do with the official conduct of the Court's business. It is specifically denied that Judge Gregory R. Hayes made any demands upon the Complainant deputy clerk, Tanya

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