NC Supreme Court Justice Anita Earls sues state’s Judicial Standards Commission

Lawsuit alleges commission violated Earls’s First Amendment rights regarding free speech

By: - August 29, 2023 12:39 pm
Justice Anita Earls

Associate Justice Anita Earls Photo: NC Supreme Court

State Supreme Court Justice Anita Earls filed a federal lawsuit Tuesday alleging the Judicial Standards Commission had violated her First Amendment rights for investigating and potentially punishing her for public comments she made about the lack of diversity in the state judiciary.

The 29-page complaint says that Earls believes that public confidence in the courts is threatened when the judiciary doesn’t reflect the population it serves.

“More importantly, though, the First Amendment of the United States Constitution prohibits the Commission, as an arm of the State, from stifling or even chilling free speech, especially core political speech from an elected Justice of the North Carolina Supreme Court,” reads the complaint, which was filed on Earls’ behalf by attorney Pressly M. Millen of the law firm Womble Bond Dickson. “The First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system. At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so.”

What is the Judicial Standards Commission?

The Judicial Standards Commission oversees compliance with the Code of Judicial Conduct. It investigates claims of misconduct made against sitting judges, including justices on the North Carolina Supreme Court.
Here is the make up of the 14-member commission:

  • Four attorneys appointed by the North Carolina State Bar Council
  • Four citizens who are neither judges nor lawyers, and are appointed by the governor and the legislature
  • Six judges appointed by the Supreme Court’s chief justice, currently Republican Paul Newby.

Based on claims from one or more anonymous individuals, the commission has conducted a series of long, intensive investigations into Earls because of her comments about how the state’s judicial system operates.

Exhibits included in the lawsuit show the commission sent Earls a confidential letter on March 20 notifying her they were opening an investigation because of an allegation that she disclosed confidential information about something that was still being deliberated by the state Supreme Court. The tipster appeared concerned about an article published at WRAL detailing potential big changes at the state Supreme Court. The tipster seemed worried it was a leak similar to the one that preceded the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which deemed Roe unconstitutional.

But a letter from Earls’s attorney to the commission indicates that the WRAL article only used the word “leak” in its headline. The rest of the article references notes taken at a North Carolina Bar Association meeting, which were then “obtained” by WRAL.

“In other words, it appears that the decision to investigate Justice Earls may have been made based upon a misleading disparity between a headline and the more accurate and responsible account found in the body of the story,” Millen wrote on May 4.

The commission ultimately dismissed the complaint and gave Earls “a verbal reminder to be mindful of your public comments.”

On Aug. 15, the commission again sent Earls a confidential email saying it would investigate and potentially punish Earls for talking to a journalist about the state Supreme Court, the legal system and the administration of justice. Earls discussed the court’s lack of judicial clerks from racial minority groups and the role implicit bias plays in interrupting female advocates (and Earls herself, a Black female justice) during oral arguments. She also commented on the state courts’ discontinuance of racial equity and implicit bias training.

The commission letter accused Earls of saying that her colleagues on the Supreme Court “are acting out of racial, gender, and/or political bias in some of their decision-making.” That could violate a part of the Code of Judicial Conduct that “requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary,'” according to the letter. A judge should not publicly claim another judge is making decisions based on an “improper bias,” the letter reads, unless the judge who made the criticism “knows this to be the case.”

Earls’s lawsuit states that the Aug. 15 notice “bespeaks a callous disregard for the principles of the First Amendment,” indicating the the commission thinks the best way to promote public confidence in the impartiality of the courts “is best accomplished by threatening judges who speak out about what they view as imperfections or defects in the judicial system and who do so in a measured and nuanced manner. Nothing could be more inimical to the First Amendment.”

The lawsuit asks for an injunction so that the commission will stop curtailing Earls’s right to speak out on issues of public concern.

“Some members of the public will lose confidence in the judiciary if issues of race and gender bias are not addressed, especially if those issues are not addressed because the Commission is using its powers to stifle the discussion,” the lawsuit warns.

Republicans have held a majority on the state Supreme Court since January. Earls has been the author of fiery dissents critiquing her colleagues’ decisions to rehear cases on gerrymandering and voter ID that had already been decided just a few months earlier. She also dissented in two rulings in April where her Republican colleagues had determined there was no racial discrimination in jury selection in two criminal cases, accusing the court of reverting “to the practice of refusing to acknowledge what is in plain sight and turns a blind eye to evidence of racial discrimination in jury selection in this case by contorting the doctrine and turning the Batson test into an impossible hurdle.”

Earls will be the sole Democrat on North Carolina’s highest court once Justice Michael Morgan steps down on Sept. 4. Gov. Roy Cooper, a Democrat, will appoint Morgan’s replacement.

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Kelan Lyons
Kelan Lyons

Investigative Reporter Kelan Lyons writes about criminal and civil justice, including high-profile litigation, prison and jail conditions, housing, and the challenges people face when they leave prison.