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| NORTH CAROLINA SUPREME COURT |
| North Carolina Supreme Court Justice Anita Earls is suing the state Judicial Standards Commission for its investigation into comments she made over diversity in the state’s judiciary branch. |
State Supreme Court Justice Anita Earls is seeking to protect her First Amendment rights in a federal lawsuit she filed Aug. 29 against the N.C. Judicial Standards Commission, the judiciary’s ethical body.
Earls is taking legal action against the JSC, accusing the body of infringing on her First Amendment rights by considering disciplinary action for her public statements on judicial diversity. The repercussions could be severe, potentially costing Earls her job. She holds a unique position as the only Black woman and one of just two Democrats on a court that is predominantly Republican.
The case has garnered bipartisan support, including from figures such as Rep. Marcia Morey, D-Durham, and Dallas Woodhouse, the North Carolina executive director of American Majority, who formerly directed the state Republican Party from 2015-19. According to Earls’ attorney, Press Millen, this case is unprecedented in North Carolina and raises questions about the extent to which the JSC should have the authority to regulate the speech of judges.
“We don’t think the North Carolina Judicial Standards Commission should be trying to or should be in the business of trying to regulate speech,” said Millen. “Clearly, there’s a role for them, but I don’t think it involves content-based regulation of speech.”
Brittany Pinkham, executive director of the JSC, released the following statement regarding the federal lawsuit: “The North Carolina Judicial Standards Commission is a nonpartisan investigative body comprised of members appointed by the Chief Justice, Governor, General Assembly, and State Bar Council. The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”
Earls’ lawsuit came after an unknown sponsor or sponsors sought to change the membership of the commission. The changes are part of the stalled budget bill that has yet to be finalized. If approved, some experts worry that the Senate’s proposed changes to the commission could undermine the judiciary’s independence.
Spokespersons for Chief Justice Paul Newby and state Senate leader Phil Berger declined to comment, pointing to the statement from the commission.
The State Bar had no comment on the lawsuit, said Peter Bolac, its assistant executive director.
The controversy: Earls’ lawsuit and the JSC
The investigation stemmed from comments made by Earls in a Law360 article published in June, wherein she talked about a lack of diversity among judicial clerks and the state courts’ decision to end bias training.
Earls said in the article that “implicit bias is at play” in the court and that she’s felt uncomfortable at times about how her colleagues treated female advocates.
The JSC claimed Earls may have violated a part of the Judicial Code of Conduct that requires judges to promote public confidence in the judiciary by implying her colleagues have racial or gender biases, according to the suit.
But Earls said in the suit that the public’s confidence in the judiciary is undermined when the courts don’t reflect the population they serve. The suit mentions a study published by the N.C. Bar Association that found over 90% of oral advocates in the N.C. Supreme Court identified as white and 70% as male in the last two years.
Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice, was quoted in the publication Perspectives from the American Bar Association as saying that research shows people have greater trust in the courts if they see judges that look like them.
This isn’t the first time Earls has been investigated. The suit also shows that the commission investigated a complaint against her in March alleging that she disclosed confidential information about Supreme Court matters that were still in discussion.
The alleged disclosure may refer to potential changes to internal Supreme Court rules. Earls discussed these changes with some key figures at the N.C. Bar Association. WRAL obtained notes from someone who attended the talk, and Earls confirmed they were accurate. The complaint was dismissed.
This case arises as proposed changes to the JSC are still pending, at the same time that the state budget remains stalled. Carolina Public Press previously reported how the proposed changes have drawn criticism from former judges, attorneys, academic legal experts, and state lawmakers for undermining the independence of the judiciary. If passed, it would replace attorney appointments on the commission with those of judges, giving judges a majority on the JSC. The General Assembly would appoint the judges.
The legal aspects
Amanda Martin, supervising attorney at the Duke University First Amendment Clinic, said that much of Earls’ comments were factual statements, such as the lack of diversity.
“If the recitation of certain facts make the North Carolina judicial system look bad or undermine public confidence in the system, that is the result of the facts,” she said.
While it’s true that judges’ speech is restricted by the standards of conduct, that doesn’t mean they forfeit their entire right to freedom of speech, Martin said.
It’s important for the commission to investigate cases of actual wrongdoing by justices, Martin said, but if the rule means judges can’t speak out about undisputed facts or observations, then it seems to be “a gross overstep.”
She also said the rule requiring judges to promote public trust in the judiciary is vague.
“It could be used to punish a whole host of activities,” Martin said.
In 2019, NC Newsline said that Newby claimed Democrats spent $1.5 million “to get their AOC person on the court,” in an apparent comparison of Earls to Democratic U.S. Rep. Alexandria Ocasio Cortez. Newby made the remark in a speech after Earls’ victory over Republican incumbent Barbara Jackson. He also warned the crowd to watch for “judicial activism” on the court.
He was not disciplined for the comments, according to NC Newsline.
Billy Corriher, the People’s Parity Project’s state courts manager and a former journalist, said those comments are closer to saying the other justices are biased than what Earls said.
“He’s talking about the decisions they make as judges, their rulings from the bench. Earls wasn’t talking about that kind of stuff,” he said. “She was talking about decisions to make about hiring, administrative stuff, maybe the decision to disband that commission, how they run oral arguments, not the decisions they make as judges.”
Bob Orr, a former N.C. Supreme Court justice, said he doesn’t see a basis for the investigation into Earls and that the judicial standards system overall needs to be reformed.
Orr said the state’s judicial code of conduct standards are very general, so it’s left to the discretion of the commission and to the state Supreme Court to decide when someone’s violated them.
The process has also become overly politicized, he said.
State court judges are under pressure to answer to politicians rather than laws because they have to run for office and engage in “highly politicized processes,” David Lyle wrote in a 2017 article for the American Bar Association website. At the time, Lyle was director of the state courts project at the American Constitution Society and is now retired.
“Once judicial races started becoming more and more partisan and more and more hotly contested, then all of a sudden the judicial code started being applied in a political context,” Orr said.
Bipartisan support
The allegations in the lawsuit have raised questions from across the political divide about what role the JSC should play in regulating speech, if at all. Democrats, Republicans and the national nonprofit the People’s Parity Project are siding with Earls.
The People’s Parity Project is a national network of law students and attorneys organizing to support equal access to justice.
The organization issued a statement Aug. 29 in support of Earls.
Morey, who served as a Durham District Court judge for 18 years and a chief District Court judge for five years before joining the General Assembly in 2017, said Earls has every right to express the problems she sees in the judiciary as a sitting justice.
“She’s getting no personal gain out of it and wants the judicial system to be better and more transparent,” she said. “But every time she speaks, it’s like taking every word under a microscope, and whoever is filing these complaints for an investigation, they just don’t like, you know, her opinion.”
Justice Earls is also the co-chair of the Task Force on Racial Equity in Criminal Justice, established by Gov. Roy Cooper in 2020. The task force was created by Gov. Cooper in 2020 after a Minneapolis police officer killed George Floyd. N.C. Attorney General Josh Stein previously co-chaired the force.
“It is her role as a co-chair of the task force to look at what the disparities are, the flaws in our system from juries to racial equity training,” Morey said.
“I have known and watched Justice Earls before she was a justice and as a justice; I think she has the highest ethical and integrity standards that I have ever seen,” she said.
The Senate’s proposed changes to replace lawyer appointments from the JSC with judges appointed by the General Assembly is even more problematic in light of the allegations in Earls’ lawsuit, Morey contends.
Morey fears that the legislature-appointed judges would result in a greater likelihood of the JSC politically attacking a judge or justice, which she said has now happened with the investigation into Earls.
“It is a threat to democracy, because we’re losing the notion of checks and balances of three separate branches of government,” Morey said of the Senate’s proposed changes to the commission. Such changes are an attempt by the legislature to take control of the courts, she said.
The Senate’s proposed changes to the makeup of the commission are minor administrative changes that “don’t amount to some big overly partisan conspiracy,” said Woodhouse, former leader of the state’s Republican party. He is also a critic of the JSC’s role in regulating political speech.
“It is very unusual that you would find Anita Earls and I on the same side,” he said. The JSC shouldn’t be regulating political speech, according to Woodhouse.
While Woodhouse said he found Earls’ comments about the judiciary to be offensive and unhelpful, he said, “I’m going to defend her right to say them and let the voters be the ultimate judge over people’s political speech.”
Woodhouse said the lawsuit is likely to start a conversation among lawmakers on whether or not the legislature should step in to clarify what the JSC’s role should be in regulating speech. But he views the proposed legislative changes to the JSC as a separate issue that has little to do with a judge’s or justice’s First Amendment rights.
The lawsuit’s arrival during the last few weeks of the legislative session offers a timely chance to reevaluate if any semijudicial organizations should have the power to question or penalize judges for their statements in political or public policy discussions, he said.
The complaint against Justice Earls is politically motivated, said Corriher, the People’s Parity Project’s state courts manager and a former journalist.
“How the courts operate and whether there’s discrimination in the courts are crucial public policy questions that the people of North Carolina deserve an answer to,” Corriher told CPP. “Who better to answer that question than judges who see this stuff firsthand?”
Corriher also said he doesn’t think it’s a coincidence that once Earls was sworn in as a justice on the N.C. Supreme Court in 2019, lawmakers began to propose changes to the JSC.
“As a lawyer, Earls took the legislature to court more than once to beat them,” he said. “They don’t like her.”
According to the statement from the JSC spokesperson, “The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct.”
Racial equity in the judiciary
Black lawyers and civil rights groups spoke at a press conference Wednesday in support of Earls, as reported by CBS 17.
“The agenda is to silence Justice Anita Earls and subsequently to silence us,” said Rep. Renee Price, D-Orange County, at the press conference.
The N.C. NAACP released a statement indicating that the attempt to boot Earls from the commission is “a deliberate endeavor to impede her judicial duties on the North Carolina Supreme Court.”
Earls is one of two people of color on the N.C. Supreme Court. The other, Justice Michael Morgan, announced he would step down the week of Sept. 4, according to WRAL.
The Brennan Center reports that people of color occupy 20% of state supreme court seats nationally, while they constitute over 40% of the U.S. population.
Both appellate and district judges are more likely to identify as white and less likely to identify as Black, Hispanic or Native American, Harvard University researcher Maya Sen said in written testimony to the U.S. House Judiciary Subcommittee on Courts, Intellectual Property and the Internet in 2021.
As a leading member of the Task Force on Racial Equity in Criminal Justice, Earls and other members published a report detailing how to bring equity to the criminal justice system.
The report found that 51.5% of people incarcerated in N.C. Department of Public Safety custody are Black, while only 22% of the state’s total population was Black in 2018.
The barriers to a racially diverse court don’t start at the bench. Many justices start out as lawyers, who are predominantly white. Some 87% of lawyers are white, according to 2022 data from the U.S. Bureau of Labor Statistics.
According to 2021 data from the Federal Judicial Center Biographical Database and U.S. Census Population Estimates, the federal judiciary is disproportionately white. Over 76% of Court of Appeals judges and 72% of Court of Appeals judges identify as white, compared to the general population, which is 60% white.
During Supreme Court confirmation hearings, potential minority justices may face more criticism of their qualifications than a white male nominee. A study published in Law & Society Review looked at every Supreme Court hearing since 1939 and found that female and minority nominees are often questioned more about their “judicial philosophies” to hint they’re not qualified.
The study also found that nominees of the party in power are more often presumed competent, while “similarly situated female and minority nominees” are not.
A study from the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association that was cited in the Perspectives article also found that women and men of color and white women reported having to go “above and beyond” to get the same recognition as their white male colleagues. The report referred to this as the “prove-it-again factor,” and women of color reported prove-it-again bias directed toward them more than any other group.
Tonja Jacobi, a law professor at Northwestern Pritzker School of Law, is quoted in Perspectives as noticing that “female justices get talked over a lot.” Jacobi found that female justices were interrupted up to three times as often as male judges.
That’s something Earls pointed out in the comments that sparked the JSC’s investigation. She said junior justices had interrupted her rudely, according to WRAL.
Orr said he remembered Judge Clifton Johnson, the first African American to serve as a North Carolina District Court judge, commenting that white justices seemed to never hire Black judicial clerks.
Orr found that, with the exception of one Black clerk hired by Court of Appeals Justice Earl Vaughn, there had never been a Black law clerk hired by a white member of the appellate judiciary in 1987.
Next steps
Millen, who is serving as Earls’ attorney, submitted a request for a preliminary injunction. This legal measure would restrict the involved parties from undertaking certain actions specified in the lawsuit while the case is under consideration. Millen noted that the lawsuit is still in its initial stages and that the next move hinges on the court’s decision regarding the injunction. The case has been assigned to Loretta Biggs, one of the few other Black female judges serving in North Carolina.
If the new rules for the JSC are approved, they could have ramifications for Earls’ investigation and future ones. The outcome of her suit could also have consequences for evaluating racial equity in the state judiciary. If the commission suggests disciplining Earls, the final decision will come from the N.C. Supreme Court.
