Nowell, In re

• Decision Date: 12 September 1977
• Docket Number: No. 95,W,No. 36,36,95
• Citation: 293 N.C. 235,237 S.E.2d 246
• Court: North Carolina Supreme Court
• Parties: In re Inquiry concerning a JudgeMilton NOWELL.

Page 246

237 S.E.2d 246

293 N.C. 235

In re Inquiry concerning a Judge No. 36, W. Milton NOWELL.

No. 95.

Supreme Court of North Carolina.

Sept. 12, 1977.

Duke & Brown, Hulse & Hulse, Goldsboro, and Thomas J. White, Jr., Kinston, for Judge W. Milton Nowell, respondent.

Atty. Gen. Rufus L. Edmisten, Deputy Atty. Gen. Millard R. Rich, Jr., and Associate Atty. James E. Scarbrough, Raleigh, for the Judicial Standards Comn.

PER CURIAM.

A citizen having filed written charges against Judge Nowell (respondent), the Commission directed an investigation in accordance with G.S. 7A-377 and the Commission's Rule 7. Thereafter, on 1 August 1976, this proceeding was begun before the Commission by the filing of a complaint, verified by Millard R. Rich, Jr., Deputy Attorney General, whom the Commission appointed as special counsel (Commission Rules 8, 10). The complaint alleged that respondent had engaged in wilful misconduct in office and in conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The charges were that on 10 May 1976, prior to the opening of the criminal session of the District Court of Wayne County over which respondent was to preside, he disposed of two specified cases in the office of the Clerk of the Superior Court without notice to the prosecuting attorney for the State and in his absence. In each case the defendant was charged with a violation of the motor vehicle law and, as to each, respondent ordered the deputy clerk of the court to enter "a prayer for judgment continued upon payment of the costs."

In his answer, respondent's first defense was a motion to dismiss the complaint on the ground that the statute under which the Commission was attempting to proceed violated N.C.Const., art. I, § 19 and U.S.Const. amend. XIV. As a second defense he denied the allegations of the complaint. As a third, or "further defense," he averred that the defendant Grantham was a high school student whose mother was employed and that he desired to minimize the time the boy and his mother would lose from school and work respectively. As to the defendant West, he alleged that a deputy sheriff had given him a "high recommendation."

In accordance with its rules, promulgated in 283 N.C. 764, et seq. (1973) and 288 N.C. 738 et seq. (1975), on 15 October 1976 the full Commission conducted a plenary hearing upon the charges contained in the complaint. Special Counsel Rich presented the evidence in support of the charges. Respondent, represented by his attorney of record, offered evidence and testified in his own behalf.

Thereafter the Commission made written findings of fact from which it concluded "as a matter of law" that the conduct of respondent detailed therein "constituted wilful misconduct in office and conduct prejudicial to the administration of justice, which brings the judicial office into disrepute." The specific findings upon which the Commission based these findings are the following:

"7. That Respondent was scheduled to preside over the District Court of Wayne County, Criminal Division, on May 10, 1976. That prior to the opening of court on said date, while in the office of the Clerk of Superior Court of Wayne County, Respondent, in Case # 76CR3975, State v. Don Christopher West, wherein Don Christopher West was charged with unlawfully and wilfully operating a motor vehicle on a public street or highway at a speed of 50 miles per hour in a 35 mile per hour zone, directed Mrs. Evelyn Edgerton, Deputy Clerk of Superior Court, who works in the Criminal District Court Division of the Clerk's Office, to enter a prayer for judgment continued upon the payment of costs and that Mrs. Edgerton did so enter said judgment. That at the time Respondent directed Mrs. Edgerton to enter said judgment, and at the time said judgment was entered, the defendant Don Christopher West was not present, the defendant was not represented by counsel, the entry was not made in open court, the Assistant Solicitor who was prosecuting the criminal document on said date, Paul Wright, was not present and had no prior knowledge that such entry would be made.

"8. That Respondent, on May 10, 1976, in the offices of the Clerk of Superior Court of Wayne County, prior to the opening of the Criminal Division of the District Court of said County on said date, directed Mrs. Evelyn Edgerton, Deputy Clerk of Superior Court, to enter a prayer for judgment continued upon the payment of costs in Case # 76CR4219, wherein James Randall Grantham was charged with unlawfully and wilfully operating a motor vehicle on a public street or highway 70 miles per hour in a 55 mile per hour zone. That the said entry was made by Mrs. Edgerton as directed by Respondent. That at the time said entry was made by Mrs. Edgerton at the direction of Respondent, said entry was not made in open court, was not made in the presence of the defendant James Randall Grantham, nor in the presence of an attorney representing Grantham, and was made without the knowledge and consent of Assistant Solicitor Paul Wright, who was prosecuting the criminal docket in District Court in said County on said date.

"9. That the aforesaid Findings and this Recommendation were concurred in by five or more members of the Judicial Standards Commission."

Upon the foregoing findings and conclusions, the Commission recommended to the Supreme Court "that respondent be censured for said conduct."

In our consideration of the Commission's recommendation we begin with respondent's "first defense," i. e., that the statutory authority under which the Commission proceeded, Art. 30, ch. 7A, N.C.Gen.Stats. (G.S. 7A-375, -377 (1975 Cum.Supp.)), hereinafter referred to as Article 30, violates the constitutional guarantees of due process, N.C.Const., art. I, § 19, and U.S.Const. amend. XIV. Respondent contends:

(a) Article 30 is invalid because it was enacted prior to the time the constitutional amendment authorizing its enactment was ratified by the people.

(b) Article 30 constitutes an attempt by the General Assembly to abrogate "its legislative duties by unconstitutionally delegating them to an administrative agency, the Judicial Standards Commission," without providing any standards for the censure and removal of judges.

(c) The terms "wilful misconduct" and "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" are so vague as to be meaningless.

(d) The Commission combines the roles of prosecutor, judge and jury.

Before considering the foregoing contentions seriatim, we deem it appropriate to note the following pertinent facts:

At the general election on 7 November 1972 the voters of the State approved an amendment which rewrote N.C.Const. art. IV, § 17. As rewritten, art. IV, § 17(1) authorizes the General Assembly, after notice, to remove a Justice or Judge of the General Court of Justice for mental or physical incapacity by joint resolution of two-thirds of all the members of each house. It further provides that removal from office by the General Assembly for any other cause shall be by impeachment. Article IV, § 17(2) requires the General Assembly to prescribe a procedure, in addition to impeachment and address set forth in (1), for the removal of a Justice or Judge for permanent mental or physical incapacity "and for the censure and removal of a Justice or Judge of the General Court of Justice for wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." In compliance with the foregoing constitutional mandate the General Assembly created our Judicial Standards Commission by the enactment of Article 30.

Over twenty jurisdictions have established commissions similar to ours. See In re Diener, 268 Md. 659, 662, 304 A.2d 587, 589 (1973); Note, Judicial Discipline The North Carolina Commission System, 54 N.C.L.Rev. 1074 (1976); American Judicature Society, Judicial Disability and Removal Commissions, Courts and Procedures (1972). The supreme courts of a number of these states have previously met the contentions made by respondent, and we are aided by their decisions.

As pointed out in our previous decisions, a proceeding begun before the Commission is neither a civil nor a criminal action. 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 (1975). Compare In re Gilliand, 248 N.C. 517, 103 S.E.2d 807 (1958). Such a proceeding is merely an inquiry into the conduct of one exercising judicial power to determine whether he is unfit to hold a judgeship. Its aim is not to punish the individual but to maintain the honor and dignity of the judiciary and the proper administration of justice. In re Diener, supra; In re Kelly, 238 So.2d 565, 569 (Fla.1970); Sharpe v. State ex rel. Oklahoma Bar Association, 448 P.2d 301 (Okl.1968); In re Brown, 512 S.W.2d 317 (Tex.1974). See Memphis & Shelby County Bar Association v. Vick, 40 Tenn.App. 206, 290 S.W.2d 871, 875 (1955). Albeit serious, censure and removal are not to be regarded as punishment but as the legal consequences attached to adjudged judicial misconduct or unfitness. Sharpe v. State ex rel. Oklahoma Bar Association,supra.

Notwithstanding, because of the severe impact which adverse findings by the Commission and censure or removal by the Supreme Court may reasonably be expected to have upon the individual, fundamental fairness entitles the judge to a hearing which meets the basic requirements of due process. In re Diener, supra. "The Commission's procedures are required to meet constitutional due process standards since a judge's interest in continuing in public office is an individual interest of sufficient importance to warrant constitutional protection against deprivation." In re Hanson, 532 P.2d 303, 305 (Alaska ...