Remarks on Diversity Lead to Investigation of North Carolina Judge

When an online legal newsmagazine asked North Carolina Supreme Court Justice Anita S. Earls in June about a state report showing that most lawyers appearing before the court were white men, she said the court should examine the reasons for that disparity and address what she called implicit bias in the judiciary.

As a result, a state judicial commission opened an investigation — not of the issue but of whether Justice Earls’s remarks had violated the state’s Code of Judicial Conduct. Now Justice Earls has filed a federal lawsuit alleging “an ongoing campaign” by the state to suppress her First Amendment rights through “intrusive investigations” initiated by anonymous informers.

The lawsuit, filed on Tuesday, asks the court to permanently bar the state’s Judicial Standards Commission from seeking to stop her from speaking on matters of public concern. On Wednesday, a federal judge ordered that the case first be heard by a mediator.

The lawsuit does not cite a reason for the harassment it claims. But “it’s no secret that this court has been a divided court,” Justice Earls’s lawyer, Press Millen, said in an interview, adding that political opponents appear to be using the judicial disciplinary system to attack one of the court’s most outspoken members.

This dispute was another indicator not just of the deep divisions on North Carolina’s Supreme Court, which went from a 4-3 Democratic majority to a 5-2 Republican one after elections last year, but also of how much divisions in the nation’s politics are buffeting institutions nationwide, including some state courts.

The dispute in North Carolina comes as the Supreme Court in another political battleground, Wisconsin, has become embroiled in conflict after ostensibly nonpartisan elections last spring gave liberal justices control of that court for the first time in 15 years.

The new Wisconsin court is poised to review whether Republican gerrymanders of the State Senate and Assembly, widely viewed as among the most lopsided political maps in the nation, violate the State Constitution. The Republican speaker of the State Assembly, Robin Vos, has suggested that he will support impeaching a newly elected liberal justice, Janet Protasiewicz, unless she recuses herself from hearing the case. Justice Protasiewicz called the legislative maps “rigged” during her election campaign this spring.

In North Carolina, Justice Earls’s lawsuit claims that the threat that the standards commission could punish her for making public remarks abridges her First Amendment right to free speech.

The commission can recommend reprimanding, censuring or even removing state and local judges. The State Supreme Court ultimately decides on punishments, but it rarely, if ever, overrides the body’s recommendations.

Court filings, of course, provide only one side’s view of an issue. A spokesperson for the Judicial Standards Commission did not immediately respond to a request for comment, but the commission said earlier that it was “statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”

While that is technically correct, a report stated in July that only 22 of 560 complaints before the commission in 2022 resulted in formal investigations. Most were dismissed after either initial reviews or preliminary inquiries.

Justice Earls, 63, has been perhaps the most liberal voice on the North Carolina court since, running as a Democrat, she defeated a Republican incumbent in a State Supreme Court race in 2018. The child of a mixed-race marriage, she was a prominent civil-rights lawyer and a top official in the civil-rights division of the U.S. Justice Department during the administration of President Bill Clinton.

On the North Carolina court, she joined a major ruling in 2022 that declared the state’s Republican-drawn political maps to be unconstitutional partisan gerrymanders, and wrote a scathing 71-page dissent when the court, under Republican control, threw out that ruling last April.

“Let there be no illusions about what motivates the majority’s decision to rewrite this court’s precedent,” she wrote. “The merits of plaintiffs’ arguments do not matter. For at stake in this case is the majority’s own political agenda.”

Justice Earls’s first brush with the Judicial Standards Commission had begun about a month earlier, last March, after an anonymous complainant charged that she had improperly revealed internal Supreme Court deliberations — apparently involving administrative changes in the State Court of Appeals — in meetings with state legislators and judges. The commission dismissed that complaint in mid-May with a note asking that she “be mindful” when making public comments.

But the commission decided in August to begin its latest inquiry — and to reopen the March one — after another anonymous complaint took issue with comments Justice Earls made in a June interview with the online legal newsmagazine Law 360.

Jeanette Doran, the president of the conservative North Carolina Institute for Constitutional Law, cautioned against drawing quick conclusions about the motivation for the issues filed with the commission. “Because we don’t know who filed the complaint, we don’t know whether there is an agenda,” she said, adding that anonymity was important to protect whistle-blowers.

Justice Earls’s interview with Law 360 centered on a recent finding by the North Carolina solicitor general that lawyers arguing before the State Supreme Court were overwhelmingly white and male, and that “women and nonwhite attorneys are underrepresented on our state’s brightest legal stage.”

Justice Earls called for the court to hire more clerks from racial minority groups, saying the clerkships were a pipeline into the higher ranks of the legal community. And she said instances of “implicit bias” on the court, such as cutting off or interrupting Black and female lawyers, sent a quiet message about what kinds of lawyers the justices see as persuasive.

Patricia Flood, the counsel to the commission, wrote in an Aug. 15 letter to Justice Earls that the commission had voted to reopen the inquiry based on an interview “in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender and/or political bias in some of their decision-making.”

The letter told Justice Earls that her comments might have violated a clause in the state’s Code of Judicial Conduct requiring judges to behave “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Her lawsuit rejected that, noting that the U.S. Supreme Court ruled in a 2002 case that the First Amendment allows candidates in court elections to express legal and political views even if judicial conduct codes say they cannot.

“In fact,” Justice Earls’s suit states, “nothing will undermine public confidence in our courts more than serial burdensome disciplinary investigations into speech designed to inform the public about problems.”

Alain Delaquérière and Jack Begg contributed research.

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