In re Royster
| Decision Date | 24 August 2007 |
| Docket Number | No. 608A06.,608A06. |
| Citation | 648 S.E.2d 837 |
| Court | North Carolina Supreme Court |
| Parties | In re Inquiry Concerning a Judge, No. 05-158, Theodore S. ROYSTER, Jr., Respondent. |
On 2 November 2006, the Judicial Standards Commission (Commission) recommended that the Supreme Court censure respondent for participating in an ex parte conference with a defendant's attorney and entering an order as a result thereof, without notice to the plaintiff and without taking evidence.
On 17 May 2006, the Commission's counsel filed a complaint alleging that respondent "engaged in conduct inappropriate to his judicial office." In particular, it alleged that on 13 July 2005, respondent participated in an ex parte conference with an attorney representing a defendant in an action in Iredell County District Court to recover unpaid child support. As a result of this conference, respondent entered an order striking an earlier order which had been entered by a different district court judge and had found defendant in contempt. The complaint to the Commission further alleged that respondent's actions "constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of N.C.G.S. § 7A-376, and are in violation of Canons 1, 2A, and 3A(4) of the North Carolina Code of Judicial Conduct." Respondent did not file an answer, but sent a letter to the Commission while the matter was under investigation stating that he believed the trial court has inherent authority to enter ex parte orders "to prevent irreparable harm to an individual as well as to prevent a possible violation of an individual's civil rights and liberty."
On 2 November 2006, the Commission filed its recommendation, which included the following findings of fact made at its 6 October 2006 hearing on the complaint:
2. Tanya (Moore) Bennett is the plaintiff in an action pending in the District Court Division of the General Court of Justice, Iredell County, entitled Tanya (Moore) Bennett v. Lester Wayne Moore, II, 01CVD822, in which Ms. Bennett sought, inter alia, child support for the parties' two minor children. Throughout the course of the proceeding, Ms. Bennett has been required to file numerous motions due to Mr. Moore's noncompliance with child support orders. On many of those occasions, she has appeared pro se.
3. On or about 20 April 2005, Ms. Bennett filed a Motion to Show Cause alleging Mr. Moore was in arrears more than $29,000.00; an order was issued by the Assistant Clerk of Superior Court of Iredell County ordering Mr. Moore to appear on 23 May 2005 and show cause why he should not be found in contempt for his failure to comply with the Court's child support order. The motion and order were served on Mr. Moore by registered or certified mail on 29 April 2005.
4. A hearing was held on Ms. Bennett's motion before the Honorable James M. Honeycutt on 23 May 2005. Ms. Bennett was present and appeared pro se. Mr. Moore was neither present nor represented. After hearing evidence, Judge Honeycutt entered an order finding that Mr. Moore had been properly served with the motion, was residing in Kentucky, and had failed to pay child support as ordered. Judge Honeycutt concluded that Mr. Moore was in contempt for failing to pay child support and ordered that he pay ongoing child support for the months of June, July, and August 2004, pay toward his arrearage on a monthly basis, and that he
5. On 28 June 2005, Judge Honeycutt entered an order in which he found that Mr. Moore had failed to make the payment ordered in the 23 May 2005 order, adjudged Mr. Moore in willful contempt, and issued an order for Mr. Moore's arrest and commitment to the Iredell County Jail until "he may purge himself by paying his arrearages in full, $18,530.61."
6. On 13 July 2005, attorney William M. Willis, IV filed a motion to strike Judge Honeycutt's order for Mr. Moore's arrest and to set aside Judge Honeycutt's orders adjudging Mr. Moore to be in contempt. The motion was not served on Ms. Bennett until 22 July 2005.
7. Notwithstanding Mr. Willis's failure to serve the motion upon Ms[.] Bennett, he presented the motion to respondent ex parte on 13 July 2005. Respondent engaged in an[ ] ex parte conference with Mr. Willis on 13 July 2005 and entered an order striking the 28 June 2005 order of Judge Honeycutt adjudicating Mr. Moore to be in contempt and recalling the order for Mr. Moore's arrest.
The Commission also found that "[t]he relief requested by Mr. Willis and granted by Judge Royster was not of a nature properly considered ex parte under the laws of North Carolina." Based on these findings, the Commission concluded "on the basis of clear and convincing evidence that respondent's conduct constitutes conduct in violation of Canons 1, 2A and 3A(4) of the North Carolina Code of Judicial Conduct and is conduct prejudicial to the administration of justice which brings the judicial office into...
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