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Facing investigation, NC Supreme Court Justice files lawsuit saying she’s being silenced

North Carolina Supreme Court Justice Anita Earls is suing the group in charge of judicial ethics and oversight in the state, claiming it’s trying to silence her with an improper — and possibly politically motivated — investigation targeting her.

The nc court system
The nc court system

Earls recently gave interviews to legal news outlets in which she spoke about the lack of diversity among the staff of the state’s highest court, lamented a recent decision to end bias training for court employees and accused fellow justices of disrespecting her. She suggested in the interview that race or gender may have been a factor in what she perceived as slights; she is the only Black woman on the court.

She said in the federal lawsuit, filed Tuesday, that she has been informed the state’s Judicial Standards Commission is now investigating her for those comments — an investigation she says is unconstitutional.

“The First Amendment provides me and every American the right to free speech and to bring to light imperfections and unfairness in our political and judicial systems,” Earls said in a statement provided by her attorney in the case, Press Millen. “I believe that public confidence in the judiciary is best promoted by honestly looking at the facts, not by sweeping the truth under the rug or silencing dissenters.”

The executive director of the Judicial Standards Commission, Brittany Pinkham, said in a written statement that she couldn’t comment on the investigation or Earl’s lawsuit.

“The North Carolina Judicial Standards Commission is a non-partisan investigative body comprised of members appointed by the chief justice, governor, General Assembly, and State Bar Council,” she said. “The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”

The commission has the power to discipline judges, with a range of punishments that include removing them from office and banning them from serving as judges in the future.

And while the lawsuit itself doesn’t explicitly accuse the commission of targeting Earls due to her politics, Millen’s announcement implies there could be political motivations at play. Earls is one of two Democrats on the seven-member court. Millen pointed to actions by prominent GOP leaders, including the court’s Republican chief justice and the state Senate leader.

“The lawsuit against the Judicial Standards Commission comes after it has undergone numerous changes under Chief Justice Paul Newby and at a time when state Senate leader Phil Berger Sr. is proposing significant changes to how the Commission members are chosen,” Millen wrote.

Spokespeople for Newby and Berger didn’t immediately respond to requests for comment.

Millen’s reference to changes at the commission under Newby may refer to a shakeup in leadership last year. In late 2021 and early 2022, Newby and Berger’s son — Republican Supreme Court Justice Phil Berger Jr. — each publicly backed specific candidates in contested GOP primaries for high-profile judicial elections. The Judicial Standards Commission published a memo in early 2022 warning that it could violate ethics rules for sitting judges to endorse political candidates.

Within days of that memo, the head of the Judicial Standards Commission announced her retirement — and a new version of that memo was then published with those lines warning against political activities deleted, the N.C. Tribune reported. That allowed a new executive director to be hired by the commission’s chair, who is chosen by Newby. Investigations into Earls have come under that new leadership.

A progressive group, North Carolina Voters for Clean Elections, came to Earls’ defense Tuesday and made more explicit accusations about the investigation being politically motivated.

The group echoed Millen’s concern over the proposed changes to the Judicial Standards Commission backed by the elder Berger. Those changes, which Senate leadership is pushing to include in this year’s state budget, would remove the four commission members who are appointed by the State Bar, and instead let Republican legislative leaders fill those seats.

“Senator Berger wants the legislature to handpick the judges who will decide the constitutionality of the legislature’s laws,” Melissa Price Kromm, the group’s director, said in a statement. “And Berger also wants to be able to stack the Judicial Standards Commission with political allies who can stifle dissent and target judges that don’t toe the line.”

Multiple investigations

It’s not the first time the commission has investigated Earls in recent months, an exhibit associated with the lawsuit reveals.

Earlier this year she was investigated because of an article, published by WRAL in February, that broke news of efforts by the Supreme Court to change several internal rules. Critics view the efforts as a power grab by the court’s new Republican majority, which had come into power just weeks before.

Earls, who is a vice president of the North Carolina Bar Association, gave a presentation to a gathering of that legal group’s top officials about several impending changes to the court’s internal rules. It was not a public presentation, but WRAL obtained notes taken by an attendee that described what she had said.

When WRAL asked Earls about the content of the notes, she confirmed their veracity and declined to make any further comment. Earls’ lawsuit indicates that put her in the crosshairs of the Judicial Standards Commission.

Millen represented Earls in that matter earlier this spring. He wrote the commission a letter in May stating that such actions don’t violate rules governing judges’ behavior, and rather “fit well within the actions deemed acceptable — and rightfully encouraged” by the state’s judicial rules.

If the commission wanted to continue its investigation, Millen added in that letter, Earls would be happy to waive the normal confidentiality surrounding such investigations and have it conducted out in the open.

The commission then dismissed the investigation.

But the commission began to probe Earls again, this month, over her comments about the court’s lack of diversity and her own experiences being treated poorly, even by fellow members of the court. Courts often have deeply ingrained norms about respecting seniority, and Earls is among the most senior justices on the Supreme Court. But she spoke of being rudely interrupted during oral arguments by junior justices. She didn’t name who, but all of the justices junior to her are Republicans.

“Sometimes it’s hard to separate out: Is this race or is this gender or is this because of my political views?” Earls said in an interview with legal news service Law 360 that was published in June. She then answered her own question: “Any one of those three or the combination of all three might be the explanation.”

Other comments now under investigation include her raising issues with the fact that 14 of the Supreme Court’s 15 law clerks are white, and none are Black — as well as her frustration with Newby’s decision in January to eliminate a state courts commission that handled implicit bias training and other issues related to racial and gender equity in the courts system.

Her comments ruffled feathers and led to one or more anonymous complaints against her, according to Earls’ complaint, which in turn led to the Judicial Standards Commission investigating her yet again.

The commission told Earls it’s investigating her because judges must conduct themselves “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

Through her lawsuit, Earls has responded that her comments highlighting potential race and gender biases inside the court system should be viewed as necessary — not forbidden — because “public confidence in the judiciary is compromised when the court system does not reflect the population it serves.”