The executive director of the N.C. Judicial Standards Commission was pushed out of her role by top Republicans in North Carolina’s judiciary after going far beyond her role as a nonpartisan administrator. She attempted instead to create and enforce new policies on judicial political activity, according to information received by Carolina Journal.
North Carolina’s two largest newspapers have attacked the move:
According to the News and Observer’s Ned Barnett, the liberal associate opinion editor:
“Now we’ve learned that a top state courts official may have been ousted for the offense of publicly reminding judges — perhaps including at least one prominent Republican — that they shouldn’t be politicking when they’re not up for election.”
However, the News and Observer appears to be wrong about some critical details.
According to her LinkedIn profile, attorney Carolyn Dubay, the now former executive director of the Judicial Standards Commission, left her role after she released a controversial memo on March 11. Dubay, a Duke University and Fordham University School of Law graduate, held the role a little more than six years, beginning in 2016.
Her role and that of the Judicial Standards Commission is to explain the rules and administer their enforcement.
The Judicial Standards Commission reviews and investigates allegations of misconduct or disability made against N.C. judges and justices. The commission was established in 1973 and acts as an arm of the Supreme Court of North Carolina to ensure the impartiality, independence, and integrity of the judicial branch.
The Judicial Standards Commission is not a policy-making body. The elected members of the state Supreme Court are charged with creating and revising the Code of Judical Conduct. Canon 7 of the code that covers judicial political activity has not changed significantly in years. The last revision of the code was adopted on Nov. 6, 2015.
“Canon 7 of our Code, which addresses political conduct of judges, is designed ‘to strike a balance between … (1) the need for an impartial and independent judiciary and (2) . . . the right of judicial candidates to engage in constitutionally protected political activity.’”
Chief Justice Paul Newby oversees the state court system through the Administrative Office of the Courts. Early in his term, he appointed Court of Appeals Judge Chris Dillion to oversee the Judicial Standards Commission. Dillon has hiring and firing authority in his role, but a change in leadership of Judicial Standards would not likely have come without Newby being consulted.
The March 11 memo, prepared by Dubay, directed judges to avoid involvement in campaigns in years when they are not on the ballot. The memo was sent under Dillon’s name.
According to the News and Observer, “it was prepared by staff. It was unclear if Dillon had read it. Dubay could not be reached for comment, but others familiar with the situation said she (Dubay) was pushed to resign over it.”
So issue No. 1 appears to be staff sending out a memo with a judge’s name on it that was not approved by the judge.
Second, the March 11 memo included two extremely problematic sections never seen before in previous similar memos.
The Code limits certain political activity. For example, no member of the judiciary may donate directly to other candidates — state, federal, or local — at any time. However, members of the judicial branch may donate to political parties and attend their events.
One specific section of Canon 7 prevents judges and justices from endorsing candidates unless they themselves are candidates.
For example, Newby can’t specifically endorse a candidate because he can never again be a candidate himself. Newby will reach the state’s mandatory retirement age of 72, near the end of his current eight-year term.
Canon 7 specifically lists how someone is considered a candidate.
“A ‘candidate’ is a person actively and publicly seeking election to judicial office. A person becomes a candidate for judicial office as soon as the person makes a public declaration of candidacy, declares or files as a candidate with the appropriate election authority, authorizes solicitation or acceptance of contributions or public support, or sends a letter of intent to the chair of the Judicial Standards Commission.”
Carolina Journal has previously reported that it is common practice for elected judges and justices to declare themselves as candidates immediately after winning an election so they can continue to solicit donations and make endorsements. Appeals Court Judge Richard Dietz was appointed to the N.C. Court of Appeals by Republican Gov. Pat McCrory on Aug. 25, 2014, to fill the vacancy created by the elevation of Judge Robert Hunter to the state Supreme Court.
Dietz immediately declared himself a candidate for a full term on the Court of Appeals, which he won in 2016. Immediately following his 2016 victory, he informed the Judicial Standards Commission he would be a candidate in 2024, eight years later. Dietz instead is running this year for the state Supreme Court.
The March 11 memo drafted by Dubay included this section:
“NOTE: Although there is no time frame in the Code limiting the time at which a judge may declare himself or herself a ‘candidate’ for election, and some judges choose to send their letter of intent to the Commission immediately after election, judges are reminded that the ability to engage in conduct under Canon 7 that is only permissible for ‘judicial candidates’ is intended to be limited to the time the judge is actively campaigning during their election cycle.”
This was a change in policy that was never debated or adopted by the state Supreme Court.
It is further expanded in a second section of the memo:
“As noted above, a judge is generally prohibited from endorsing other candidates except when he or she is a ‘candidate’ campaigning for election or re-election. See Canon 7C(2), Canon 7B(2). As such, endorsements should only be made when a judge is a bona fide candidate actively engaging in campaigning during his or her election cycle. Otherwise, the rule prohibiting endorsements in Canon 7C would be rendered meaningless except as to special Superior Court judges and other judges unable to run for re-election.”
In a podcast recorded before her departure expressing her views, Dubay said, “[Judges] really do need to remember, in this very politically charged environment particularly, that maintaining that independence and professionalism is important and that their constituent is justice and fairness and not a political base.” She added, “We might have partisan elections for judges, but we don’t have partisan justice.”
It is worth noting that most of the March 11 memo is a direct cut-and-paste job from a Jan. 2, 2020, memo written by Judge Wanda Bryant, who then chaired the Judicial Standards Commission. Bryant, a Democrat, was appointed to lead Judicial Standards by Democratic Supreme Court Chief Justice Cheri Beasley. The 2020 memo did not contain the sections about judges and justices having to limit their endorsements to election cycles when they are on the ballot.
“A tighter interpretation of the code would inhibit politically active judges, including, say, Justice Phil Berger Jr., who supports Republican candidates even though he’s still early in his eight-year term. On Twitter, he recently endorsed Republican state Supreme Court candidate Trey Allen, calling him ‘a true conservative.’ In another post, he said he was ‘thrilled to be on hand’ as District Court Judge Beth Freshwater filed for a Republican primary challenge to Donna Stroud, the chief judge of the North Carolina Court of Appeals.”
“Having formally declared himself to be a candidate for re-election, Justice Phil Berger, Jr.’s recent endorsement of Trey Allen is clearly permissible under the North Carolina Code of Judicial Conduct,” said Jon Guze, senior fellow in legal studies at the John Locke Foundation. “The only way to prevent sitting judges from engaging in that kind of political activity would be to amend the Code, and — given the strong protections afforded to political speech under the U.S. and the North Carolina constitutions — even that might not work.”
One can debate the wisdom of a justice on the state Supreme Court endorsing candidates at all. However, it seems unrealistic if not unwise to expect members of the elected judiciary to take no interest or role in the direction, politically or otherwise, of the courts. They are citizens, too.
One of the most important aspects of electing people to head government institutions is so those elected officials can control and hold to account non-elected, government officials who empower themselves to invent rules. You can argue the rules need changing. I have long advocated that since the N.C. Constitution requires an elected judiciary, judges should be free to engage in virtually any kind of political activity with as few limitations as possible. Voters themselves should be the judge when judges step over the line with political activity and speech.
Yet those are not the rules. I don’t get to decide them. Neither do unelected bureaucrats.