North Carolina Supreme Court Justice Alleging ‘Implicit Bias’ in Colleagues Faces Investigation

North Carolina Supreme Court Justice Alleging ‘Implicit Bias’ in Colleagues Faces Investigation
North Carolina Supreme Court Justice Anita Earls (Courtesy of North Carolina Courts State Webpage)
Matt McGregor

A federal judge has rejected North Carolina Supreme Court Justice Anita Earls’ request for a preliminary injunction to block an investigation into her allegations that the state’s court lacks diversity.

According to Reuters, U.S. District Judge William Osteen denied the request that Earls said would have prohibited the North Carolina Judicial Standards Commission (JSC) from violating her free speech.

 In his ruling, Judge Osteen said Justice Earls “failed to establish a likelihood of success on the merits.”
Justice Earls filed her lawsuit in August alleging that the JSC’s investigation “unconstitutionally infringes on upon her First Amendment rights,” and that her “speech has been chilled in several instances when she declined opportunities to speak on topics of diversity and equity since the Commission’s investigation commenced.”
 The JSC was established in North Carolina in 1973 to review complaints against state judges.
 Justice Earls, elected in 2018, alleged “potential implicit bias and lack of diversity” in the court system in a June interview.
 “In the same Interview, Plaintiff also stated her opinion that litigants predominantly select white male advocates to argue before the Supreme Court on their behalf because the Supreme Court itself is predominantly white and male, and that she often feels treated differently on account of her race, gender, or political party,” Judge Osteen reported in the order.
 This led to the JDS informing Justice Earls that it would be conducting the investigation in August for violating codes in the North Carolina Code of Judicial Conduct that prohibits publicly alleging “that another judge makes decisions based on motivation not allowed under the Canons without some quantum of definitive proof” because it “runs contrary to a judge’s duty to promote public confidence in the impartiality of the judiciary.”
 “The Commission’s letter informed Plaintiff that at any time during the investigation, she is ‘entitled to a reasonable opportunity to present any relevant information regarding this matter,’ including ‘any documents, statements, or other information,’” Judge Osteen said.
 Justice Earls faces three outcomes if it is determined that she violated the canon: a letter or caution with no further proceeding or disciplinary action in which “the notice and statement of charges filed by the Commission, along with the answer and all other pleadings, remain confidential.”
 Once a disciplinary hearing has taken place, up to five members of the JSC must agree to “any recommendation to issue a public reprimand, censure, suspend, or remove any judge.”
 In that case, Justice Earls would still be entitled to a hearing, Judge Osteen said.

‘Unconstitutionally Vague’

 Justice Earls said she has had to frequently self-censor since the JSC’s investigation.
 She argued that she had to decline to write an article for Slate magazine and had to limit her contribution to the Yale Law Review Forum.
 At speaking events such as the Greensboro Bar Association, the Equal Access to Justice Commission, and a Democratic Party event, she said she’s had to refrain from discussing issues of diversity and equity.
 “Plaintiff also alleges that her chilled speech and resulting self-censorship due to the Commission’s investigation will limit what she can say during her upcoming keynote address at the Critical Legal Collective Inaugural Convening, a conference at Duke Law School’s Center on Law, Race & Policy,” Jude Osteen said.
 Justice Earls argued that the codes prohibiting her statements in the interview without evidence are “unconstitutionally vague,” Judge Osteen said. 
 “Second, Plaintiff argues that the Commission’s investigation unconstitutionally abridges her core political speech and does not survive the applicable strict scrutiny analysis,” Judge Osteen said.
 Despite Justice Earls being quoted in the order as calling the canon a “standardless formulation,” Judge Osteen countered that it wasn’t as standardless as she claimed.
 “Canon 2A states: ‘A judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,’” Judge Osteen said. “A judge or judicial candidate running for office assumes not only the responsibility of administering the law but also the responsibility of understanding the ethical rules that apply.”

‘More Than Reasonable Notice’

 The cannons shouldn’t be difficult to interpret, Judge Osteen said.
 Among her arguments was the statement that Canon 2A is vague because “it fails to give a person of ordinary intelligence adequate notice of what conduct is prohibited.”
 This, she argued, makes people subject to the rule “steer far wider of the unlawful zone, than if the boundaries of the forbidden areas were clearly marked.”
 In response, according to the order, Justice Earls had “more than ‘reasonable notice’ on this topic.”
 The court had issued a public reprimand, which gave “at least ‘minimal guidelines’” on how the canon was to be applied to judges.
 “The very Court on which Plaintiff serves reprimanded a fellow judge under Canon 2A for, among other things, openly criticizing another judge and accusing the judge of making decisions based on racial bias,” the JSC said.
 Justice Earls’ attorney, Pressly Miller with Womble Bond Dickson, said he would appeal the case in the 4th U.S. Circuit Court of Appeals.
 “The ruling, in our view, fails to recognize the significance of the constitutional violations to which Justice Earls has been subjected by the continuing investigations of the Judicial Standards Commission,” he said in a statement to Reuters.