In Re Inquiry Concerning a Judge No. 53 Peoples

250 S.E.2d 890 | N.C. | 1978

250 S.E.2d 890 (1978) 296 N.C. 109

In re Inquiry Concerning A Judge No. 53 Linwood T. PEOPLES.

No. 71.

Supreme Court of North Carolina.

December 29, 1978.

Harold D. Coley, Jr., Special Counsel, Raleigh, for Judicial Standards Commission.

Bobby W. Rogers, Henderson and Frank B. Banzet, Warrenton, for respondent.

SHARP, Chief Justice.

We consider first Respondent's contention that his resignation as a District Court Judge on 1 February 1978 deprived the Judicial Standards Commission of jurisdiction over "his person and the subject matter in this cause" as of that date and rendered the question of his removal moot. In support of this contention, Respondent points to the language of N.C.Gen.Stat. § 7A-376 (Cum.Supp.1977), which reads in pertinent part as follows:

"Upon recommendation of the Commission, the Supreme Court may censure or remove any justice or judge for wilful misconduct in office . . . ." (Emphasis added.) It is upon this statute, enacted pursuant to N.C.Const., art. IV, § 17(2) that the jurisdiction of the Commission and this Court depends. Respondent argues (1) that from the time his resignation became effective he was no longer "a justice or judge" within the meaning of the statute, and (2) that since G.S. 7A-376 delimits the jurisdiction of both the Commission and this Court neither now has the power to discipline him. The Commission found no merit in these contentions and denied Respondent's motion to dismiss this proceeding. We affirm its ruling.

It is quite true that "[w]here jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond those limits is in excess of its jurisdiction." Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975). When a statute confers power on a court or administrative body to adjudicate cases involving the members of a certain class, a court's attempt to exercise its power over one who is not a member of that class is void for lack of jurisdiction. See, e. g., Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269 (1955).

However, the general rule is that the jurisdiction of a court depends upon the state of affairs existing at the time it is invoked. Minneapolis & St. Louis Railroad Co. v. Peoria & Pekin Union Railway Co., 270 U.S. 580, 46 S. Ct. 402, 70 L. Ed. 743 (1926); State v. Howell, 107 Ariz. 300, 486 P.2d 782 (1971); Gardner v. Gardner, 253 S.C. 296, 170 S.E.2d 372 (1969). Jurisdiction over the person of a defendant or respondent is obtained by service of process upon him, by his voluntary appearance or consent. The jurisdiction of a court or administrative agency over the subject matter of a proceeding is derived from the law which organized the tribunal. Such jurisdiction, therefore, cannot be conferred upon a court by consent, waiver or estoppel. 3 Strong's North Carolina Index 3rd Courts § 2.1 (1976); 21 C.J.S. Courts § 28 (1940).

Assuming, without deciding, that Respondent is correct in his interpretation of the jurisdictional requirements of G.S. 7A-375, our first inquiry is when did the Commission acquire jurisdiction over the person of Respondent and what was "the state of affairs existing at that time."

On 1 December 1977 the Commission notified Judge Peoples that it had ordered a preliminary investigation of charges that he was guilty of misconduct in office by reason of the manner in which he was handling and disposing of criminal cases. On 30 January 1978 — two days before the effective date of his resignation and in strict compliance with its Rule 8, the Commission notified Judge Peoples that formal proceedings had been instituted against him and advised him of his right to file an answer to the charges within 20 days. Along with that notice, Respondent was personally served with a copy of the verified complaint which specified "in ordinary and concise language" the charges against him.

It is apparent from the language of the Commission's Rule 8 that the verified complaint detailing the charges against a respondent and the "notice of formal proceedings" are intended to serve the same function as do the complaint and summons in a civil suit. Under Rule 3 of the Rules of Civil Procedure, N.C.Gen.Stat. § 1A-1, Rule 3 (1969), a civil action is commenced by the filing of a complaint. Upon the filing of the complaint, Rule 4 requires that summons shall be issued forthwith. Clearly, therefore, on 30 January 1977, the Commission had jurisdiction of Respondent and the charges against him. Thus, we need not decide what result would have been reached had the complaint been filed after the effective date of Judge People's resignation. The question we must answer is what effect did Respondent's resignation two days later have on the jurisdiction of the Commission.

There is nothing in our law which prevents a judge or other public official from tendering his resignation during the pendency of removal proceedings against him. In Rockingham County v. Luten Bridge Co., 35 F.2d 301, 306 (4th Cir. 1929), 66 A.L.R. 735, 741 (a case dealing with the effect of the resignation of county commissioners in North Carolina) Judge John J. Parker said, "A public officer . . . has at common law the right to resign his office, provided his resignation is accepted by the proper authority. (Citations omitted.) And, in the absence of statute regulating the matter, his resignation should be tendered to the tribunal or officer having power to appoint his successor." Among the authorities cited for the foregoing statement are Hoke v. Henderson, 15 N.C. 1 (1833) and Annot., 19 A.L.R. 39 (1922).

Decisions in the various jurisdictions are not in accord with reference to the right of a public official to resign and whether an acceptance is required. See generally 63 Am.Jur.2d Public Officers and Employees §§ 162, 163 (1972); 46 Am.Jur.2d Judges § 17 (1969); Annot., 82 A.L.R. 2d 750, 751 (1962). That issue, however, is not presented here since it is clear that, in his letter dated 20 January 1978, the Governor accepted Respondent's resignation as of 1 February 1978. When a resignation specifies the time at which it will take effect, the resignation is not complete until that date arrives. 46 Am.Jur.2d, Judges, § 17 (1969). Thus, Respondent remained a District Court Judge until 1 February 1978, exercising all the powers of that office.

From the facts outlined above, it is clear that the Judicial Standards Commission acquired jurisdiction of both the Respondent and the charges against him before he left office. The question whether the same result would be reached in a case where the complaint is filed after the effective date of a judge's resignation must await decision in a case which presents that issue.

The question we now consider is whether Respondent's resignation divested the Commission of jurisdiction or rendered the question of his removal moot. We conclude that the Commission retained jurisdiction and that the question of removal was not rendered moot by the resignation.

Once the jurisdiction of a court or administrative agency attaches, the general rule is that it will not be ousted by subsequent events. This is true even when the events are of such a nature that they would have prevented jurisdiction from attaching in the first instance. See 20 Am.Jur.2d Courts §§ 142, 148 (1965); 21 C.J.S. Courts § 93 (1940). "[O]nce jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined." Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 11, 102 S.E.2d 469, 476 (1958). "Jurisdiction is not a light bulb which can be turned off or on during the course of the trial. Once a court acquires jurisdiction over an action it retains jurisdiction over that action throughout the proceeding. . . . If the converse of this were true, it would be within the power of the defendant to preserve or destroy jurisdiction of the court at his own whim." Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wash.2d 519, 523, 445 P.2d 334, 336-37 (1968). For other cases supporting the foregoing statement of the rule, see Smith v. Campbell, 450 F.2d 829 (9th Cir. 1971); United States Fidelity & Guaranty Co. v. Millers Mutual Fire Insurance Co. of Texas, 396 F.2d 569 (8th Cir. 1968); Atlantic Corp. v. United States, 311 F.2d 907 (1st Cir. 1962); State v. Howell, 107 Ariz. 300, 486 P.2d 782 (1971); Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948); Collins v. Robbins, 147 Me. 163, 84 A.2d 536 (1951); Jones Drilling Co. v. Woodson, 509 P.2d 117 (Okl.1973); Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wash.2d 519, 445 P.2d 334 (1968). Applying these principles to the instant case, it is apparent that both the Commission and this Court retained jurisdiction over the subject matter of this proceeding and the person of the Respondent after his resignation.

It is immaterial that Respondent, by reason of his resignation, was no longer a district court judge at the time the Commission filed its findings of fact and recommendation that he be removed from office with the Supreme Court. Respondent was a judge at the time the Commission filed its complaint against him and, as such he was clearly within its jurisdiction. Under G.S. 7A-376 there is but one disciplinary proceeding. It began when the Commission filed its complaint, and it will end with this Court's final order. In proceedings authorized by G.S. 7A-376, this Court sits not as an appellate court but rather as a court of original jurisdiction. In re Martin, 295 N.C. 291, 245 S.E.2d 766 (1978). "[T]he Commission can neither censure nor remove a judge. It is an administrative agency created as an arm of the court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. To that end, it is authorized to investigate complaints, hear evidence, find facts, and make a recommendation thereon." In re Nowell, 293 N.C. 235, 244, 237 S.E.2d 246, 252 (1977). Accord, In re Kelly, 238 So. 2d 565 (Fla.1970), cert. denied 401 U.S. 962, 91 S. Ct. 970, 28 L. Ed. 2d 246 (1970).

In addition to the jurisdictional objections, which we have overruled, Respondent argues that the issues before the Commission and this Court were rendered moot by his resignation. That a court will not decide a "moot" case is recognized in virtually every American jurisdiction. D. Kates, Jr. and W. Barker, Mootness in Judicial Proceedings: Toward A Coherent Theory, 62 Calif.L.Rev. 1385, 1386 (1974). In federal courts the mootness doctrine is grounded primarily in the "case or controversy" requirement of Article III, Section 2 of the United States Constitution and has been labeled "jurisdictional" by the United States Supreme Court. Liner v. Jafco, Inc., 375 U.S. 301, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964); Utilities Commission v. Southern Bell Telephone Co., 289 N.C. 286, 289, 221 S.E.2d 322, 324 (1975); 20 Am.Jur.2d Courts § 81 (1965). In state courts the exclusion of moot questions from determination is not based on a lack of jurisdiction but rather represents a form of judicial restraint. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert, denied 344 U.S. 824, 73 S. Ct. 24, 97 L. Ed. 642 (1952); Overesch v. Campbell, 95 Ohio App. 359, 119 N.E.2d 848 (1953); Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 44 S.E.2d 88 (1947); 20 Am.Jur.2d Courts § 81 (1965); 62 Calif.L.Rev., supra at 1412.

Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law. Benvenue Parent-Teacher Association v. Nash County Board of Education, 275 N.C. 675, 170 S.E.2d 473 (1969); Crew v. Thompson, 266 N.C. 476, 146 S.E.2d 471 (1966); In re Assignment of School Children, 242 N.C. 500, 87 S.E.2d 911 (1955); Savage v. Kinston, 238 N.C. 551, 78 S.E.2d 318 (1953); 1 Strong's N.C. Index 3rd Actions § 3, Appeal & Error § 9 (1976).

Unlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action. If the issues before a court or administrative body become moot at any time during the course of the proceedings, the usual response should be to dismiss the action. Allen v. Georgia, 166 U.S. 138, 17 S. Ct. 525, 41 L. Ed. 949 (1897); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert. denied 344 U.S. 824, 73 S. Ct. 24, 97 L. Ed. 642 (1952); 20 Am.Jur.2d Courts § 81 (1965).

While so far as our research can determine the issue has never arisen in a hearing before a body such as our Judicial Standards Commission, the courts of other jurisdictions have considered the effect of a public official's resignation on a proceeding to remove him from office. If the only purpose of the proceeding is to vacate the office, it has been held that the proceeding becomes moot upon the incumbent's resignation. People ex rel. Hill v. Muehe, 114 Cal. App. 739, 300 P. 829 (Dist.Ct.App.1931); State v. Stine, 200 Tenn. 561, 292 S.W.2d 771 (1956); State ex rel. Wilson v. Bush, 141 Tenn. 229, 208 S.W. 607 (1919); Skeen v. Paine, 32 Utah 295, 90 P. 440 (1907); Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470 (1901). Cf., Hardy v. Albert, 225 So. 2d 127 (La.App.1969); Layle v. Schnipke, 384 Mich. 638, 186 N.W.2d 559 (1971); Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966) (expiration of term of office renders removal proceeding moot).

But where the statute imposes sanctions in addition to ouster, the proceeding may be prosecuted to its conclusion despite the official's resignation. State v. Rose, 74 Kan. 262, 86 P. 296, appeal dismissed, 203 U.S. 580, 27 S. Ct. 779, 51 L. Ed. 326 (1906); Hawkins v. Voisine, 292 Mich. 357, 290 N.W. 827 (1940); State ex rel. Childs v. Dart, 57 Minn. 261, 59 N.W. 190 (1894); State v. Wymore, 345 Mo. 169, 132 S.W.2d 979 (1939); Attorney General ex rel. Robinson v. Johnson, 63 N.H. 622, 7 A. 381 (1885); People v. Harris, 294 N.Y. 424, 63 N.E.2d 17 (1945). See also 63 Am.Jur.2d Public Officers and Employees § 162 (1972); 65 Am.Jur.2d Quo Warranto § 102 (1972); 74 C.J.S. Quo Warranto § 23b(2) (1951).

In State v. Rose, supra, the Attorney General for the State of Kansas brought an action in quo warranto in the Supreme Court to oust the defendant as Mayor of Kansas City, on the ground that he had purposely violated the state liquor laws. After the trial was completed, but before the court issued its judgment, the city council accepted defendant's resignation.

Shortly after the judgment of ouster, a special election was called to fill the vacancy in the office of mayor. In defiance of the judgment, defendant ran for the office and was elected to serve the balance of his original term. When Rose was cited for contempt, his defense was that the court lacked the power to exclude him from office since he had voluntarily resigned and surrendered the office prior to judgment.

Noting that the purpose of the proceeding was not only to remove Rose from office but also to disqualify him for the remainder of his term, the court held that the proceeding had not been rendered moot by defendant's resignation and found defendant in contempt. It explained its conclusions as follows:

"The violations of law by the officer are not only public offenses but in committing them he forfeits his right to the office, and this forfeiture may be judicially declared in a quo warranto proceeding. The judgment cannot be deemed to be invalid because of the resignation of Rose just before its rendition. The issues were joined, testimony had been taken, and the case was ripe for trial before the resignation, and the defendant could not then, by surrendering the office divest the court of jurisdiction, nor thwart the purposes of the proceeding. The public had an interest in the action, and the judgment to be rendered was of no less consequence to it than to the individual interests of the defendant." 74 Kan. at 266, 86 P. at 297. See also State v. Wymore, 345 Mo. 169, 132 S.W.2d 979 (1939).

The North Carolina courts have never considered the precise issue raised by the cases cited above. But we have considered a similar issue in the context of a license revocation hearing.

In Elmore v. Lanier, 270 N.C. 674, 155 S.E.2d 114 (1967) the Commissioner of Insurance, acting under the authority of G.S. 58-42, notified plaintiff on 25 January 1967 that it was instituting proceeding to revoke his license to sell insurance. The hearing was set for February 13th, and at the hearing, plaintiff surrendered his insurance licenses, which expired on March 31. Plaintiff then obtained a preliminary injunction restraining the Commissioner from proceeding further with the hearing to revoke his license. Two days later the Wake Superior Court ordered the injunction dissolved and plaintiff appealed.

On appeal to the Supreme Court, plaintiff argued that his surrender of the licenses and their subsequent expiration rendered the cause moot. In rejecting this contention the Court observed that the proceeding under G.S. 58-42 served purposes in addition to revocation since the adjudication of the agent's wrongdoing would affect the subsequent issuance of a license. "With no adjudication of his wrongdoing, and upon the dismissal of these charges (solely because the petitioner, with whatever motive, reason or hope, has found it expedient to surrender his license), he could have substantial hope of regaining them within a comparatively short time. . . . While the agent in this kind of investigation may be presumed to be guiltless until his improper conduct has been formally proven, we must recognize that he would not be likely to close up his business, surrender his means of livelihood, and move his home unless he had substantial fear of the results of the investigation he is trying so desperately to prevent." 270 N.C. at 679, 155 S.E.2d at 117.

If G.S. 7A-376 limited the sanctions for wilful misconduct in office to censure or removal, Respondent's resignation would have rendered the proceedings moot. The statute, however, envisions not one but three remedies against a judge who engages in serious misconduct justifying his removal: loss of present office, disqualification from future judicial office, and loss of retirement benefits. Only the first of these was rendered moot by Respondent's resignation.

We must still decide whether Respondent's conduct would have merited his removal from office in order to determine whether these additional sanctions should be imposed. The resolution of that question is in no way affected by his resignation.

However, before discussing the Commission's findings of fact and conclusions, we are constrained to add that it would indeed be a travesty if a judge could avoid the full consequences of his misconduct by resigning from office after removal proceedings had been brought against him. According to this argument, it would be possible for an involved judge, at any time before the Commission files its findings and recommendations with the Supreme Court, to bring the proceedings against him to a premature close by submitting his resignation to the Governor, who would accept it without knowledge that charges were pending against the judge. We are entirely convinced that the legislature never intended any such result, and that to interpret G.S. 7A-376 according to Respondent's contentions would emasculate the statute and thwart the legislative intent entirely.

In construing a statute the legislative intent is the all-important or controlling factor. "`Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law.' . . . If a strict literal interpretation of the language of a statute contravenes the manifest purpose of the Legislature, the reason and purpose of the law should control and the strict letter thereof should be disregarded." In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978). A statute will always be interpreted so as to avoid an absurd consequence, if possible, and a construction which will defeat its purpose will be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E.2d 575 (1952).

We now consider the question whether the evidence adduced before the Commission with reference to Judge Peoples' conduct constitutes wilful misconduct in office, conduct prejudicial to the administration of justice, or both, and, if so, whether he should be removed or censured.

First, we conclude that the Commission's findings of fact are supported by clear and convincing evidence — the quantum of proof required to sustain the findings of the Commission. In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977). We therefore accept the Commission's findings and adopt them as our own. In addition, as bearing upon the truth of the findings, we point to the following facts:

Respondent filed no answer or other denial to the charges alleged against him in the complaint either before or after his special appearance and motion to dismiss were overruled. (It is perhaps noteworthy that when Respondent was notified of the date of the formal hearing, the Commission reminded him that he had filed no answer to the charges alleged against him in the complaint.) Further, Respondent neither testified nor appeared in person at the hearing. Noting his absence, the Commission's chairman said to his counsel, "Mr. Boyce, we assume that the Respondent will not be present for the hearing?" Mr. Boyce replied, "That is his election, Mr. Chairman."

It is only in criminal cases that the law decrees that the failure of the defendant to testify "shall create no presumption against him." In all other proceedings, it has long been the rule in this State that the failure of a party to take the stand to testify as to facts peculiarly within his knowledge and directly affecting him is "a pregnant circumstance" for the fact finder's consideration. York v. York, 212 N.C. 695, 701-702, 194 S.E. 486, 490 (1938). If the party is a competent witness, his failure to go upon the stand "when the case is such as to call for an explanation . . . or the evidence is such as to call for a denial," is a "circumstance against him" and a "proper subject of fair comment." Cuthrell v. Greene, 229 N.C. 475, 481-82, 50 S.E.2d 525, 529 (1948). See Smith v. Kappas, 218 N.C. 758, 765, 12 S.E.2d 693, 698 (1941); Powell v. Strickland, 163 N.C. 393, 402, 79 S.E. 872, 876 (1913); Hudson v. Jordan, 108 N.C. 10, 12-13, 12 S.E. 1029, 1030 (1891).

Surely no judge but one with a "substantial fear of the results of the investigation" would have made the elections and followed the course which Respondent has taken in this case. We paraphrase the comment of Justice Walker with reference to the failure of the propounders of a will to testify in a caveat proceeding as follows: "We are at a loss to conceive why [Respondent] did not take the witness stand to refute the personal charges made against [him] unless [he] knew them to be true and unanswerable, or felt that [he] could not overcome the evidence of their truth offered by [Special Counsel], or did not wish to undergo the ordeal of a severe cross-examination . . . ." In re Hinton, 180 N.C. 206, 212-213, 104 S.E. 341, 344 (1920).

Finally we note that Respondent has brought forward on appeal no assignments of error challenging the Commission's findings of fact. Indeed, he took no exceptions to findings 14(b), (c), (g), and (i). As to findings 14(a), (d), (e), (f), and (h) he merely entered a formal objection, making no attempt to point out the basis for any objection. Since any exception which is not made the subject of an assignment of error, and any assignment which is not brought forward on appeal and discussed in the appellant's brief, is deemed abandoned (App.R. 10(c)), this Court is entitled to assume that the facts found by the Commission are correct and, insofar as the facts are controlling, to determine the appeal in accordance with such findings. 1 Strong's North Carolina Index 3d Appeal and Error § 28.1 (1976).

In short summary, Respondent has never denied the charges against him nor contradicted the evidence presented to the Commission. Therefore it is with confidence in the accuracy of the Commission's findings that we proceed to determine whether, upon these findings, Judge Peoples has been guilty of wilful misconduct in office, conduct prejudicial to the administration of justice, or both.

Since 1 January 1973, the effective date of the act establishing the Judicial Standards Commission (1971 N.C.Sess.Laws, Ch. 590) seven cases,^[1] including this one, have come to the Supreme Court upon the Commission's recommendation that disciplinary action be taken against a judge for "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" or for both "wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute." In the first five cases the Commission's recommendation was that the Respondent be censured, and we viewed these cases in the light of that recommendation. In the fifth case, however, In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978), we concluded that G.S. 7A-376 and -377 empowered this Court, "unfettered in its adjudication by the recommendation of the Commission to make the final judgment whether to censure, remove, remand for further proceedings or dismiss the proceedings." Id. at 97-98, 240 S.E.2d at 373. The opinion emphasized that "in the future the result in each case will be decided upon its own facts." Id. Although in the sixth case, In re Martin, 295 N.C. 291, 245 S.E.2d 766 (1978), the Commission recommended the removal of the Respondent for the reasons stated in the opinion, we declined to remove him. Thus, in each of the six cases heretofore decided, the judgment of this Court has been that the Respondent be censured.

As with every innovative enactment, the interpretation of G.S. 7A-376 and -377 evolves as these provisions are brought to bear upon the facts of a particular case. In the course of arriving at our decisions in the six cases which have come to us from the Commission, the following elementary principles of due process, judicial decorum, and the proper administration of justice have been repeatedly emphasized:

1. Any disposition of a case by a judge for reasons other than an honest appraisal of the facts and the law, as disclosed by the evidence presented, will amount to conduct prejudicial to the proper administration of justice. In re Crutchfield, 289 N.C. 597, 603, 223 S.E.2d 822, 826 (1975).

2. The fact that a judge receives no personal benefit, financial or otherwise, from his improper handling of a case does not preclude his conduct from being prejudicial to the administration of justice. The determinative factors aside from the conduct itself, are the results of the conduct and the impact it might reasonably have upon knowledgeable observers. Id.

3. The trial and disposition of criminal cases is the public's business and ought to be conducted in open court. The public, and especially the parties, are entitled to see and hear what goes on in the court. Id.

4. A criminal prosecution is an adversary proceeding in which the district attorney as an advocate of the State's interest, is entitled to be present and be heard. Any disposition of a criminal case without notice to the district attorney who was prosecuting the docket when the matter was not on the printed calendar for disposition, improperly excluded the district attorney from participating in the disposition. In re Edens, 290 N.C. 299, 306, 226 S.E.2d 5, 9 (1976).

5. "`A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.'" In re Stuhl, 292 N.C. 379, 389, 233 S.E.2d 562, 568 (1977).

In view of the publicity attendant upon this Court's censure of the six judges who have been recommended for discipline by the Judicial Standards Commission (the first censure having occurred on 17 December 1975) and the publication of the Court's opinions in these censure cases, no judge — be he lawyer or layman, sensitive or insensitive to the proprieties — can justify his disposition of any case out of court. Nor can he justify disposing of a criminal case in court without the knowledge of the prosecuting attorney, for when he does so he purposely violates the duties of his office.

When we apply the principles enunciated and emphasized in the censure cases and the North Carolina Code of Judicial Conduct, 283 N.C. 771 (adopted in September 1973), to Respondent Peoples' conduct over a period of more than four years it appears beyond any reasonable doubt that Judge Peoples has repeatedly been guilty of wilful misconduct in office and conduct prejudicial to the administration of justice. The earliest record evidence of unlawful misuse of the powers of his judicial office by Judge Peoples is found in his handling of the case of Howard Taylor Cottrell, who was charged with driving while under the influence of an intoxicant on 21 November 1971 (breathalyzer reading .20%). This case was "pending" in Judge Peoples' personal file when defendant Cottrell died on 10 July 1974 — more than three years after Respondent had caused it to be withdrawn from the active trial docket. It was among the cases which the auditors discovered during the general audit of July 1977.

Witnesses would give no estimate of the turnover in the Judge Peoples personal files, but counsel did elicit the information from the courtroom clerk in Vance County that "over a period of two or three years, cases were disposed of and new ones added." Another said that when the file got "cumbersome" she would urge him "to do something with some of the cases" and he would "from time to time make some disposition of them that would help cut the number back down." It was equally impossible for counsel to obtain any estimate of the number of cases in which Respondent entered judgment out of court and out of term, but it is implicit in the evidence that he did both routinely. The evidence also showed that "from time to time," after Respondent had entered judgment, he would deliver money to the clerk for the defendant's cost and fine. It is undenied that on two occasions Respondent received money ($27.00) to pay a defendant's court costs for him after Respondent had disposed of his case; that Respondent neglected to dispose of the case and never paid the costs or returned the money to the defendant. In a third such case Respondent returned the money almost a year after receiving it and after another judge had disposed of the case.

It is no part of the business of a judge to receive and handle money to pay a defendant's court costs. A judge may not with propriety handle any financial transaction for a defendant (or any other party) which is incident to a case in which he sits in judgment. A fortiori, however, if a judge is indiscreet enough to take money for the purpose of paying a defendant's fine and costs he should forthwith pay it to the Clerk of the Court. Any use or retention of such funds, whether it be inadvertently, forgetfully, or because the judge is short of cash and intends to apply the money eventually to the purpose for which it was received, if not criminal — is wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

To properly appraise Judge Peoples' judicial conduct we need only ask the question, "What would be the quality of justice and the reputation of the courts for dispensing impartial justice, if every judge kept a personal file and exercised the duties of his office like Judge Peoples?" Clearly Judge Peoples has been guilty of wilful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute in that: (1) Respondent consistently and improperly precluded the district attorney from participating in the disposition of cases on which he was entitled to be heard in behalf of the State, and removed the disposition of cases from public view in open court by transacting the court's business in secrecy. (2) Respondent dismissed each of the three cases specified in the Commission's findings of fact No. 14(a), (b), (c) without a trial, in the absence of the defendant, without the knowledge of the district attorney, and on a day when the cases were not calendared for trial. (3) Respondent maintained a special file in the counties of Vance, Granville, and Franklin, as more fully set out in the Commission's findings of fact 14(d), (e), (f). He caused the clerk to remove certain cases from the active criminal docket and to be held in the files until he directed otherwise. In consequence these cases were not tried speedily or calendared and disposed of in open court in the normal course of business in the district courts of the respective counties. (4) From time to time Respondent paid to the clerk money which he had collected from the defendants in cases which he disposed of in their absence; that in the two cases specified in the Commission's findings of fact 14(h) and (i), Respondent received $27.00 from each of two defendants for the purpose of paying his fine and costs when Respondent disposed of his case; that Respondent never "took care of the case," never paid the fine and costs and never returned the money; that in a third such case, he returned the $27.00 after keeping it eleven months.

The question we must now consider is whether Respondent should be censured or removed in accordance with the recommendation of the Commission. As Justice Branch pointed out in writing the opinion of the Court in In re Martin, 295 N.C. 291, 245 S.E.2d 766 (1978), "[W]e have not previously adopted precise guidelines or standards for our determination of whether a judge or justice should be censured or whether he should be removed. Such strict guidelines should not be adopted since each case should be decided upon its own facts. In re Hardy, supra. Certainly where a judge's misconduct involves personal financial gain, moral turpitude or corruption, he should be removed from office. Further, if a judge knowingly and wilfully persists in indiscretions and misconduct which this Court has declared to be, or which under the circumstances he should know to be, acts which constitute wilful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, he should be removed from office. Unquestionably, any act by a judge or justice which is prejudicial to the administration of justice and brings the judicial office into disrepute warrants censure." Id. at 305-306, 245 S.E.2d at 774-775.

We have heretofore attempted to define wilful misconduct and conduct prejudicial to the administration of justice in general terms. See In re Nowell, supra, 293 N.C. at 248, 237 S.E.2d at 255, and In re Edens, 290 N.C. 299, 305-306, 226 S.E.2d 5, 9 (1976). Like fraud, however, these terms are "so multiform" as to admit of no precise rules or definition. Garrett v. Garrett, 229 N.C. 290, 296, 49 S.E.2d 643, 647 (1948). It suffices now to say that conduct prejudicial to the administration of justice, unless knowingly and persistently repeated, is not per se as serious and reprehensible as wilful misconduct in office, which is a constitutional ground for impeachment and disqualification for public office. N.C.Const., art. 4, § 4, art. 6, § 8. Although we have not previously focused on this issue, we believe that a more careful distinction should henceforth be made between "wilful misconduct in office" and "conduct prejudicial to the administration of justice." A judge should be removed from office and disqualified from holding further judicial office only for the more serious offense of wilful misconduct in office.

A comparison of Judge Peoples' misconduct in the handling of cases over a period of years with the misconduct censured in In re Crutchfield, In re Edens, In re Stuhl, In re Nowell, In re Hardy, and In re Martin reveals some similarity, but it also reveals a vast difference in the number of cases each of those judges mishandled and the time during which his misconduct persisted. Judge Peoples' special files, which had certainly been maintained for more than three years and probably as long as seven years, contained 49 cases on the day the auditors discovered the files. Respondent's custom of rendering and entering judgments out of court and in the absence of both the defendant and the district attorney had become well-enough known to his friends and their acquaintances, so that they did not hesitate to seek his aid when confronted by a traffic ticket for speeding, a warrant for driving drunk, or any infraction by which their drivers license was threatened by either revocation or "points." Respondent's willingness to assist them with a "prayer for judgment continued" upon the payment of $27.00 for the fine and costs, or perhaps a dismissal in "a hard case," would surely cause the knowledgeable observer "to believe that Respondent was more interested in obtaining some personal advantage from his disposition of these cases in this manner than deciding them on their merits." Further, this is the first case we have considered in which there was any evidence that any judge had received money for costs or fines and had failed to apply it to the purpose for which the money had been received.

We are therefore forced to the conclusion that Judge Peoples' repeated and purposeful misconduct and persistent indiscretions constitute wilful misconduct in office and require that he be officially removed from office.

Finally, we consider Respondent's contention that the provisions of G.S. 7A-376 which bar a judge who has been removed for misconduct from future judicial office are not authorized by Article IV, Section 17(2) or by any other provision of the Constitution. We disagree.

Article IV, Section 17(2) of the North Carolina Constitution directs the General Assembly to "prescribe a procedure, in addition to impeachment and address . . . for the . . . censure and removal of a justice or judge of the General Court of Justice for wilful misconduct in office."

As the language of the amendment indicates, the purpose of the provision is not so much to change the consequences of removal as it is to provide a "procedure in addition to impeachment and address" which will accomplish the goals which formerly could be accomplished only through the cumbersome and antiquated machinery of impeachment. It "neither specifies a tribunal nor directs the creation of an authority for this purpose. It merely commands the legislature, in its discretion, to provide a new remedy as an adjunct to the cumbersome, ancient and impractical remedy of impeachment." In re Martin, 295 N.C. 291, 299, 245 S.E.2d 766, 771 (1978).

In order to ascertain the meaning of this amendment to the Constitution, it is appropriate to consider it in pari materia with the other sections of our Constitution which it was intended to supplement. Williamson v. City of High Point, 213 N.C. 96, 195 S.E. 90 (1938); Parvin v. Board of Commissioners, 177 N.C. 508, 99 S.E. 432 (1919).

N.C.Const., art. IV, § 1 vests the judicial power of the State in the General Court of Justice and in a "Court for the Trial of Impeachments." Under Article IV, Section 4, the House of Representatives has the power of impeaching and the Senate serves as the "Court for Trial of Impeachments." This constitutional provision does not specify the consequences which follow conviction but it does state that they "shall not extend beyond removal and disqualification to hold office." (Emphasis added.) It adds, however, that a person who has been removed by impeachment is still "liable to indictment and punishment according to law."

In addition to impeachment, the Constitution provides for the removal of judicial officers "for mental or physical incapacity by joint resolution of two-thirds of all the members of each house of the General Assembly." N.C.Const., art. IV, § 17(1). This process, which is termed "address," has been a part of our Constitution since 1835. When a justice or judge is removed for incapacity, this section imposes no sanction other than removal from office.

The removal of a judge or justice from office by either impeachment or address requires a two-thirds vote and places the legislature in the awkward position of sitting as a trier of fact, a role for which the courts and not the General Assembly are best suited. As a result, the machinery for impeachment and address has been seldom used. No judge has been removed by impeachment in this State pursuant to the Constitution of 1868. See North Carolina Courts Commission, Report of the Courts Commission to the General Assembly (1971); W. Clark, History of the Supreme Court of North Carolina, 177 N.C. 617, 619 (1919). The joint resolution procedure, while limited to disability cases, is even less effective. It apparently has never been used in North Carolina. Report of the Courts Commission, supra at 20.

Recognizing the need for a better method of removal, the General Assembly, following the lead of many of our sister states, submitted Article IV, Section 17(2) as a constitutional amendment authorizing an "[a]dditional Method of removal of Judges." (Emphasis added.) This amendment was approved by the people in an election held on November 7, 1972.

The sections of the Constitution providing for the removal of judges by impeachment or joint resolution make a careful distinction between judges removed for misconduct and those removed for "mental or physical incapacity." In following the constitutional mandate to "prescribe a procedure in addition to impeachment and address," the legislature made the same distinction in G.S. 7A-376. When a judge is removed for "mental or physical incapacity" upon the recommendation of the Judicial Standards Commission, the remedy allowed by statute is limited to removal from office. On the other hand, when a judge is removed for reasons other than incapacity, G.S. 7A-376, (like the impeachment provision it was intended to supplement) provides for both removal and disqualification from future judicial office. A proceeding instituted by the Judicial Standards Commission, like a removal proceeding under Article IV, § 4, is neither civil nor criminal in nature. In re Nowell, 293 N.C. 235, 241, 237 S.E.2d 246, 250 (1977). A judge removed by impeachment or by the Supreme Court pursuant to the recommendation of the Commission may still be prosecuted in a criminal court.

In addition to the sanctions which follow removal by impeachment (loss of office and disqualification to hold further judicial office), G.S. 7A-376 imposes an additional sanction, the loss of retirement benefits.

The constitutional source for this remedy does not lie in the impeachment provisions of Article IV, Section 4, but in Section 8 of that same Article, which gives the General Assembly the power to "provide by general law for the retirement of Justices and Judges." Under this power the General Assembly may condition retirement benefits upon good conduct in office. Thus it acted well within its constitutional authority when it provided in G.S. 7A-376, that a judge who is removed from office for cause other than mental or physical incapacity shall receive no retirement compensation. This does not mean, of course, that he forfeits his right to recover the contributions which he had paid into the fund. G.S. 135-62 (1974).

Respondent states correctly that the scope of removal proceedings under G.S. 7A-376 cannot be broader than the constitutional amendment which authorized the General Assembly to set up a procedure for the removal and censure of judges. He then asserts that in providing for both disqualification to hold future judicial office and loss of retirement benefits under G.S. 7A-376 the General Assembly exceeded the authority granted it by Article IV, Section 17(2) of the Constitution since that provision speaks only of the "censure and removal of a Justice or Judge."

As we have already noted, this amendment must be read in connection with the impeachment provisions of Article IV, which it was intended to supplement. These provisions clearly provide for the disqualification of a judge who has been removed for misconduct. Nevertheless, we will address Respondent's argument.

Questions of constitutional construction are in the main governed by the same general principles which control the meaning of all written instruments. Perry v. Stancil, 237 N.C. 442, 75 S.E.2d 512 (1953). The fundamental principle of constitutional construction must be to give effect to the intent of the framers and of the people adopting it. State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944); Reade v. City of Durham, 173 N.C. 668, 92 S.E. 712 (1917). Where possible amendments to the Constitution should be given a practical interpretation which will carry out the plainly manifested purpose of those who created them. 16 Am.Jur.2d Constitutional Law § 65 (1964).

In ascertaining the intent of the framers, the Court should look at "conditions as they then existed and the purpose sought to be accomplished. Inquiry should be directed to the old law, the mischief, and the remedy. The Court should place itself as nearly as possible in the position of the men who framed the instrument." Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953).

In our view the driving force behind the creation of the Judicial Standards Commission was the need for a workable alternative to the cumbersome machinery of impeachment. See North Carolina Courts Commission, Report of the Courts Commission to the General Assembly (1971). Disqualification from office has long accompanied removal for misconduct under the impeachment provisions of both the state and federal constitutions. See, e. g., N.C. Const. of 1835, Art. 3, § 1. We do not believe that the legislature misconstrued the spirit of the amendment when it attached this same consequence to removal proceedings under G.S. 7A-376. The drafters of the impeachment provisions of the Constitution recognized that the removal of a public official for wilful misconduct in office without disqualifying him from future office might well be a futile gesture. In the absence of such a provision a judge who had been removed for wilful misconduct in office could not only run for election to fill out the term from which he had been removed but also — as here — seek higher judicial office. Such an event, would obviously thwart the purpose of the removal proceedings, which is to protect the public from unfit public officials.

The "mischief" to be cured by Article IV, Section 17(2) was the inefficiency of removal proceedings under the impeachment and address provisions of our Constitution, not the remedies.

This view is supported by the interpretation placed upon Article IV, Section 17(2) by the legislature which framed the amendment. Both G.S. 7A-376 and the constitutional amendment authorizing this legislation were conceived and ratified together. Both bills were enacted by the General Assembly within three days of each other in June 1971. 1971 N.C.Sess.Laws, chs. 560, 590. The statute by its terms was to become effective on January 1, 1973 provided the voters of the State approved the amendment to Article IV, Section 17 of the Constitution. 1971 N.C.Sess.Laws, ch. 560, § 3.

Clearly the legislature believed that the disqualification provisions of the statute were authorized by the terms of the constitutional amendment, for no purpose would be served by passing a constitutional amendment which was not as broad as the statute it was intended to implement.

This legislative construction, while not conclusive, should be given considerable weight. Wilson v. City of High Point, 238 N.C. 14, 76 S.E.2d 546 (1953); Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702 (1946); Reade v. City of Durham, 173 N.C. 668, 92 S.E. 712 (1917); Chadbourn Sash, Door & Blind Co. v. Parker, 153 N.C. 130, 69 S.E. 1 (1910). This is particularly true where, as in this case, the statute construing the Constitution was enacted by the very legislature which conceived and submitted the constitutional amendment.

As this Court said when faced with a similar situation in Trustees of the University of North Carolina v. McIver, 72 N.C. 76, 83 (1875):

"[W]e find that the very legislative body which adopted this amendment and was conversant with its meaning, immediately upon its ratification, passed the act we are now construing, and provided therein for the election of trustees as they were elected before the war. Thus the very legislative body which drafted the constitutional amendment, gave a legislative construction of the meaning of its terms. This interpretation. . . is entitled to peculiar respect."

We hold that N.C.Const., art. IV, § 17(2) authorizes the General Assembly to disqualify from holding further judicial office a justice or judge who has been removed for causes other than mental or physical disability.

As an alternative ground for our holding that the North Carolina Constitution authorizes the General Assembly to prescribe disqualification from office as a consequence of removal under G.S. 7A-376, we note the language of Article VI, Section 8 of the Constitution, which provides as follows:

"Sec. 8. Disqualifications for office. The following persons shall be disqualified for office:

"First, any person who shall deny the being of Almighty God.

"Second, with respect to any office that is filled by election by the people, any person who is not qualified to vote in an election for that office.

"Third, any person who has been adjudged guilty of treason or any other felony against this State or the United States, or any person who has been adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, or any person who has been adjudged guilty of corruption or malpractice in any office, or any person who has been removed by impeachment from any office, and who has not been restored to the rights of citizenship in the manner prescribed by law." (Emphasis added.)

N.C.Const., art. VI, § 8 has a long and complicated history, See generally Coates, Punishment for Crime in North Carolina, 17 N.C.L.Rev. 205, 206-208 (1939). It made its first appearance in the Constitution of 1868, which provided in pertinent part as follows:

"Sec. 5. The following classes of persons shall be disqualified for office: First, All persons who shall deny the being of Almighty God. Second, All persons who shall have been convicted of treason, perjury or of any other infamous crime . . . or of corruption, or malpractice in office." (Emphasis added.) N.C.Const. of 1868, art. VI, § 5.

The Constitution of 1868 likewise prohibited any person who engaged in dueling from holding office. N.C.Const. of 1868, art. XIV, § 2. Conviction as a prerequisite to disqualification under this section was not required.

In 1902 the disqualification provision of the Constitution was amended to include not only persons convicted of crimes but also those who "confessed their guilt on indictment pending, and whether sentenced or not, or under judgment suspended, of any treason or felony . . . or of corruption or malpractice in office." N.C.Const., of 1876, art. VI, § 8 (1902), 1900 Laws of N.C., ch. 2, §§ 8, 9.

In the few cases which have considered the issue, the courts have agreed that the term "convicted," when used in a provision making "conviction" of a crime a cause of disqualification to hold office, means conviction in a criminal court of law. State ex rel. White v. Mills, 99 Conn. 217, 121 A. 561 (1923) (term "convicted" used in city charter); Lovely v. Cockrell, 237 Ky. 547, 35 S.W.2d 891 (1931) (statute); Coco v. Jones, 154 La. 124, 97 So. 337 (1923) (constitutional provision); State v. Henderson, 166 Miss. 530, 146 So. 456 (1933) (constitutional provision); Annot., 71 A.L.R. 2d 593, 595 (1960); 63 Am.Jur.2d Public Officers and Employees § 196 (1972).

The present language of Article VI, Section 8, was introduced as part of a major revision of the North Carolina Constitution in 1971. That revision extended the bar against office holding to persons found guilty of committing a felony against the United States or another state and substituted the phrase "adjudged guilty" for the term "convicted." N.C.Const., art. VI, § 8; 1969 N.C.Sess.Laws, ch. 1258. See also Report of the N.C. State Constitution Study Commission (1968).

In its present form, this provision of our Constitution disqualifies from office "any person who has been adjudged guilty of corruption or malpractice in any office." The word adjudged means "to decide or rule upon as a judge or with judicial or quasi-judicial powers." Websters Third New International Dictionary (1961). The word guilty connotes evil, intentional wrongdoing and refers to conscious and culpable acts; it does not necessarily mean or require criminal conviction or the finding of a jury. 39 C.J.S. Guilty, p. 448 (1976). Certainly these definitions are broad enough to encompass an adjudication by this Court, pursuant to the provisions of G.S. 7A-376, that a judge is guilty of wilful misconduct in office.

We conclude that the substitution of the term "adjudged guilty" for the term "convicted" permits the General Assembly to prescribe proceedings in addition to criminal trials in which an adjudication of guilt will result in disqualification from office. Pursuant to that authorization, the legislature enacted G.S. 7A-376, barring a judge from future judicial office when he has been removed by this Court for wilful misconduct in office. Since disqualification is a serious penalty it can be constitutionally imposed only when the adjudication of guilt meets the fundamental requirements of due process.

An adjudication of guilt under the provisions of G.S. 7A-376 meets the requirements of due process. The judge's misconduct must be proved by "clear and convincing evidence." In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).

Under rules adopted by the Judicial Standards Commission, a judge is entitled to notice of the charges against him and must be personally served with process. Rules of the Judicial Standards Commission, Rule 8. The judge must be given the "opportunity to defend against the charges by introduction of evidence, representation by counsel, and examination and cross-examination of witnesses." Rules of the Judicial Standards Commission, Rule 13. He also has the right to issue subpoenas for the attendance of witnesses or the production of documents. Rule 13, supra.

We hold that an adjudication of "wilful misconduct in office" by this Court in a proceeding instituted by the Judicial Standards Commission in which the judge or justice involved has been accorded due process of law and his guilt established by "clear and convincing evidence," is equivalent to an adjudication of guilt of "malpractice in any office" as used in N.C.Const., art. VI, § 8. We conclude, therefore, that the legislature acted within its power when it made disqualification from judicial office a consequence of removal or wilful misconduct under G.S. 7A-376.

For the reasons enunciated in this opinion it is ordered by the Supreme Court of North Carolina, in conference on 29 December 1978, that Respondent Linwood Taylor Peoples be and he is hereby officially removed from office as a judge in the General Court of Justice, District Court Division, Ninth Judicial District, for the wilful misconduct in office specified in the findings of fact made by the North Carolina Judicial Standards Commission, which findings the Court has adopted as its own.

In consequence of his removal, Respondent is disqualified from holding further judicial office and is, therefore, ineligible to take the oath of office as the resident Superior Court Judge of the Ninth Judicial District, the office to which he was elected on 7 November 1978 and certified by the State Board of Elections on 28 November 1978. For the same reason he is ineligible for retirement benefits.

NOTES

[1] 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 (1976); In re Stuhl, 292 N.C. 379, 233 S.E.2d 562 (1977); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977); In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978); In re Martin, 295 N.C. 291, 245 S.E.2d 766 (1978).

Case Details

Case Name: In Re Inquiry Concerning a Judge No. 53 Peoples

Court Name: Supreme Court of North Carolina

Date Published: Dec 29, 1978

Citation: 250 S.E.2d 890

Docket Number: 71

Court Abbreviation: N.C.