A recent judicial discipline case is a reminder of the importance of the prohibition on ex parte communications.
In the case, the North Carolina Supreme Court publicly reprimanded a judge who had entered a default judgment against the defendant in a civil complaint for child custody, child support, alimony, etc. without first appointing counsel for him — despite knowing that he was a soldier stationed in Korea and contrary to the Servicemember’s Civil Relief Act of 2003. The Act provides “in plain language,” the Court explained, that, if it appears that a defendant is in military service, a court may not enter a default judgment until it appoints an attorney to represent the defendant. The soldier and his commanding officer had informed the judge in letters that he could not participate in proceedings before he returned.
The judge entered the default judgment when the defendant did not comply with an order entered after a hearing on the plaintiff’s request for additional information concerning the soldier’s status and future availability. The soldier had not been served with the motion, had no notice of objections to a stay, and was not present or represented at the hearing. At the hearing, plaintiff’s attorney provided the judge with Crossing the Military Minefield: A Judge’s Guide to Military Divorce in North Carolina. The publication details ways that a judge could deny a stay by finding that a servicemember did not show “good faith and diligence” when responding to a court action. The Judicial Standards Commission found that the judge “imprudently” relied on plaintiff’s counsel and failed to “sufficiently perform her own independent inquiry and research.” The judge had consented to the reprimand.
The case is also a reminder of the unfortunate action taken by the North Carolina legislature in 2013 eliminating the Commission’s ability to publicly reprimand judges with their consent and without a formal proceeding and eliminating public judicial discipline proceedings, keeping the charges, hearing, and recommendation confidential unless and until the Court decides a judge should be publicly sanctioned. The 2013 bill placed North Carolina in the minority within a minority, joining only 16 other jurisdictions with closed formal hearings and only three jurisdictions (Delaware, Hawaii, and D.C.) in which recommendations are also confidential and proceedings become public only if a court decides on public discipline.
This is the first public discipline in North Carolina since the change was made. (There had been one public sanction in 2013, four in 2012, three in 2011, three in 2010, and three in 2009.) Because of the unjustified extra secrecy imposed in 2013, it is impossible to tell how many recommendations are currently pending before the Court, how many may have been rejected, and why. Therefore, the public cannot evaluate whether the Commission and the Court are diligently protecting the integrity of the judiciary. It is reasonable of the public not to have much confidence in a process that hides so much from its view, particularly when the information used to be available.