In Re Inquiry Concerning a Judge, No. 14-126B MacK , 369 N.C. 236 ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 250A16
Filed 21 December 2016
IN RE: INQUIRY CONCERNING A JUDGE, NO. 14-126B
PETER MACK, JR., Respondent
This matter is before the Court pursuant to N.C.G.S. §§ 7A-376 and -377 upon
a recommendation by the Judicial Standards Commission entered 16 June 2016 that
Respondent Peter Mack, Jr., a Judge of the General Court of Justice, District Court
Division 3B, State of North Carolina, be publicly reprimanded for conduct in violation
of Canons 1, 2A, and 6C of the North Carolina Code of Judicial Conduct and
constituting conduct prejudicial to the administration of justice that brings the
judicial office into disrepute in violation of N.C.G.S. § 7A-376. This matter was
calendared for argument in the Supreme Court on 10 October 2016, but determined
on the record without briefs or oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure and Rule 2(c) of the Rules for Supreme Court
Review of Recommendations of the Judicial Standards Commission.
No counsel for Judicial Standards Commission or Respondent.
ORDER
The issue before the Court in this case is whether Judge Peter Mack, Jr.
(Respondent) should be publicly reprimanded for violations of Canons 1, 2A, and 6C
of the North Carolina Code of Judicial Conduct amounting to conduct prejudicial to
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the administration of justice that brings the judicial office into disrepute in violation
of N.C.G.S. § 7A-376(b). Respondent has not challenged the findings of fact made by
the Judicial Standards Commission or opposed the Commission’s recommendation
that he be publicly reprimanded before this Court.
On 20 July 2015, the Commission counsel filed a Statement of Charges against
Respondent alleging that he had failed to report certain income from extra-judicial
sources as required by Canon 6 and the State Government Ethics Act. In addition,
the Commission counsel alleged that Respondent had
engaged in conduct inappropriate to his judicial office by
presiding over a session of district court in which a criminal
defendant appeared on the [judge’s] calendar for criminal
charges which the [judge] ha[d] initiated as the
complaining witness, and which the [judge] agreed should
be dismissed after [he] was paid restitution by the criminal
defendant in the amount of $3,000 cash in the [judge’s]
chambers.
According to the allegations contained in the statement of charges, Respondent’s
failure to report his annual outside income as required by law during specified years
is “in violation of Canons 1, 2A, and 6C of the North Carolina Code of Judicial
Conduct,” and Respondent’s actions in presiding over a criminal case that he had
initiated and agreeing to the dismissal of the case after receiving restitution in
chambers constituted violations of “Canons 1, 2A, and 2B of the North Carolina Code
of Judicial Conduct.” As a result, the Commission counsel asserted that Respondent’s
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actions “constitute[d] conduct prejudicial to the administration of justice that brings
the judicial office into disrepute in violation of N.C.G.S. §[ ]7A-376(b) and §[ ]7A-377.”
On 1 September 2015, Respondent filed an answer in which he alleged that his
failure to report outside rental income during the years in question constituted an
unintentional oversight and that the handling of the case in which he received
restitution was not “against normal protocol,” with all the transactions in the case
having been “handled through [his] de facto attorney in the proceeding and the
District Attorney’s Office.” On 16 November 2015, Respondent and the Commission
counsel filed a number of joint evidentiary, factual, and disciplinary stipulations as
permitted by Commission Rule 22 that tended to support a decision to publicly
reprimand Respondent. On 11 May 2016, a hearing concerning this matter was held
before the Commission.
On 16 June 2016, the Commission filed a Recommendation of Judicial
Discipline, in which it made the following findings of fact:
1. Respondent has resided in Craven County, North
Carolina for more than thirty years.
2. Respondent owns two residential properties in
Craven County, North Carolina which he has rented to
various tenants over the last ten (10) years. Specifically,
from approximately May 2013 until February 2014,
Respondent rented a home in New Bern, North Carolina to
a tenant for approximately $800 per month (the New Bern
home). Respondent began renting the New Bern home to
a new tenant in 2014 for approximately $700 per month.
From approximately 2007 until August of 2011,
Respondent also rented a home in Havelock, North
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Carolina to an individual for approximately $600 per
month (the Havelock home). From approximately October
2011 until the present date, Respondent rented the
Havelock home to another individual for approximately
$550-600 per month.
3. With respect to the Havelock home, in 2011
Respondent’s former tenant vacated the home without
notice, was several months behind on rent and left
significant damage to the property including knocked out
drywalls, missing light fixtures, soiled carpets, and more.
4. Respondent incurred significant costs as a result of
the damage done to the Havelock home. Respondent
contacted the former tenant seeking compensation for the
damages, which the former tenant did not pay.
[5]. On 3 May 2013, Respondent sought criminal charges
against the former tenant and a criminal summons was
issued for injury to real property. On the criminal
summons, Respondent is listed as the complainant and his
address is listed as 300 Broad St., New Bern, NC 28560,
the address of the Craven County Courthouse.
[6]. The former tenant’s criminal charge, Craven County
File No. 13CR51808, was first set for 30 May 2013. The
criminal case was continued a number of times and
remained pending for over a year for various reasons. The
former tenant had difficulty finding a defense attorney to
represent him when Respondent was the prosecuting
witness. Eventually, the former tenant applied for a court-
appointed attorney and an Assistant Public Defender from
outside Respondent’s judicial district was assigned by the
Office of Indigent Defense Services.
[7]. In an effort to bring all the parties together to settle
the criminal matter, the Assistant District Attorney (ADA)
assigned to prosecute the former tenant’s charge
calendared the matter in Respondent’s courtroom.
Respondent did not set the case on his own calendar or
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exercise undue judicial authority to have the former
tenant’s charge heard in his court.
[8]. On 25 April 2014, Respondent presided over
Criminal District Court in Craven County, and Craven
County File No. 13CR51808 appeared on line number 28 of
that court calendar, with Respondent’s name listed as the
complainant.
[9]. During the 25 April 2014 court session, Respondent
provided the ADA with photographs of the damaged rental
property, which were also shared with the Assistant Public
Defender, who then consulted with the former tenant. The
parties reached an agreement that Respondent and the
ADA would not pursue the criminal charge against the
former tenant if he paid Respondent restitution for the
property damages. This is a common means of resolution
in similar criminal cases in Craven County. All parties
agreed on the amount of restitution and the case was
continued to allow the former tenant time to raise the
necessary funds to pay Respondent.
[10]. On 18 July 2014, the ADA again scheduled Craven
County File No. 13CR51808 on Respondent’s docket, and
the case appeared on line number 18 of the court calendar,
with Respondent’s name listed as the complainant. During
this court session, Respondent recessed court and was
joined in an office behind the courtroom by the ADA and
the former tenant. The Assistant Public Defender
representing the former tenant was not present as per an
agreement with the ADA. During this meeting,
Respondent left the office temporarily, and when he
returned, the ADA had received $3000 in cash as
restitution from the former tenant, and the ADA handed it
to Respondent. After restitution was made to Respondent,
the ADA filled out a form dismissing the criminal charge
against the former tenant. There is no dispute that
Respondent was entitled to the restitution from the former
tenant.
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[11]. With respect to the rental properties as a whole,
while Respondent stipulates he has had little to no annual
net income from the rental properties, he admits he has
grossed in excess of $5,000 annually in rent as reportable
extra-judicial income.
[12]. Notwithstanding Respondent’s income from his
rental properties, Respondent admits that he did not report
this income on his annual income reports required under
Canon 6 of the Code of Judicial Conduct. Specifically,
Respondent did not file a Canon 6 report with the Craven
County Clerk of Superior Court for 2011, 2012, or 2013.
The only Canon 6 report on file for Respondent in Craven
County was from the 2010 calendar year and under the
column for “name of source/activity,” he stated “(NONE).”
[13]. After receiving notification of the Commission’s
investigation into this matter, Respondent filed an
“Amended” Canon 6 report on 3 November 2014, listing his
two (2) rental properties (described herein), but for the
calendar year for which the “Amended” report was filed, he
indicated “2010 – 2014.”
[14]. Respondent’s failure to file the required Canon 6
reports was the result of his own negligence, but it was not
an attempt to willfully conceal his extra-judicial income
and neither the Respondent nor any party appearing before
him benefitted from his failure to file the required reports.
[15]. In addition to the obligation to file an annual gift
and income report under Canon 6, District Court judges are
“covered persons” under the State Government Ethics Act,
which requires all covered persons to annually file a
Statement of Economic Interest (SEI form). SEI forms
must be filed with the State Ethics Commission each year.
[16]. Respondent reported his rental income from the
New Bern home and the Havelock home as required on his
SEI forms from 2007 until 2010. However, Respondent
failed to report the rental income on his 2011 SEI form. On
his 2011 SEI form, Respondent affirmed “the information
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provided in this Statement of Economic Interest and any
attachments hereto are true, complete, and accurate to the
best of my knowledge and belief.”
[17]. Respondent’s failure to report his rental income on
his SEI forms continued in 2012, 2013, and 2014, when
Respondent filed No-Change SEI forms with the State
Ethics Commission. These SEI forms declared that he had
no changes from his 2011 SEI form to report, and thus he
failed to report the income for these successive years. On
each of his 2012, 2013, and 2014 SEI No-Change Forms,
Respondent confirmed he had reviewed the previous year’s
SEI form and affirmed “my responses continue to be true,
correct, and complete to the best of my knowledge and
belief.”
[18]. All SEI forms signed and filed by Respondent
specifically instructed covered persons to list all sources of
income of more than $5,000, including “rental income.”
[19]. Respondent’s failure to properly report his rental
income to the State Ethics Commission was not a willful or
intentional attempt to conceal sources of income, nor did
Respondent or any party appearing before him benefit in
any way from his failure to report the income. However,
Respondent’s affirmation, acknowledgment, and previous
reporting of extra-judicial income on SEI reports from
2007-2010, show Respondent should have known to report
this income.
(Citations omitted.) Based upon these findings of fact, the Commission concluded as
matters of law that:
A. Failure to Report Rental Income on Canon 6
Reports, 2010-2013
1. Canon 6 of the North Carolina Code of Judicial
Conduct requires judges to “report the name and nature of
any source or activity from which the judge received more
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than $2,000 income during the calendar year for which the
report is filed.” N.C. Code of Judicial Conduct, Canon 6C.
2. Canon 6 further requires District Court judges to file
such reports with the Clerk of Superior Court in the county
in which the District Court judge resides by 15 May of the
year following the year in which the income was received.
N.C. Code of Judicial Conduct, Canon 6C.
3. Canon 6 serves the important purpose of ensuring
transparency in a judge’s financial and remunerative
activities outside of the judicial office to ascertain potential
conflicts of interest, avoid corruption and maintain public
confidence in the impartiality, integrity and independence
of the state’s judiciary.
4. Where a judge acts as a landlord and personally
rents real property and directly receives gross rental
income exceeding $2000 in a calendar year, such activity
must be reported on the annual Canon 6 report.
5. By repeatedly failing to report the rental income on
his Canon 6 reports filed from 2010-2013, Respondent
violated Canon 6 of the Code of Judicial Conduct.
6. By repeatedly failing to report the rental income on
his Canon 6 reports filed from 2010-2013, Respondent
failed to personally observe appropriate standards of
conduct to ensure that the integrity and independence of
the judiciary is preserved, in violation of Canon 1 of the
North Carolina Code of Judicial Conduct and failed to
comply with the law and to conduct himself in a manner
that promotes public confidence in the integrity and
impartiality of the judiciary, in violation of Canon 2A of the
North Carolina Code of Judicial Conduct.
7. Respondent’s failure to properly file annual Canon 6
financial disclosures was the result of his own negligence,
and was not an attempt to willfully conceal his extra-
judicial income. Although Respondent’s failure to report
did not benefit him in any way, the continuing and
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recurring nature of this negligence year after year,
distinguishable from an isolated incident or single
occurrence, aggravates this misconduct to a level
warranting more than a private letter of caution.
8. Respondent’s violations of Canons 1, 2A and 6 of the
Code of Judicial Conduct also amount to conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute, in violation of N.C. Gen. Stat.
[§ 7A-] 376(b).
B. Failure to Disclose Rental Income on
Statement of Economic Interest, 2011-2014
9. The State Government Ethics Act requires all
covered persons to annually file a Statement of Economic
Interest (SEI form). As a judicial officer and judge of the
General Court of Justice, Respondent is a “covered person”
under the State Government Ethics Act. N.C. Gen. Stat.
§ 138A-3(10) & (19).
10. Among other things, covered persons are required to
report the source of income of more than $5000 received by
the covered person, his/her spouse, or members of his/her
immediate family during the filing year. The State Ethics
Commission has interpreted “income” to mean the covered
person’s gross income, not net income.
11. Pursuant to the State Government Ethics Act,
income includes “salary, wages, professional fees,
honoraria, interest, dividends, rental income, and business
income from any source other than capital gains, federal
government retirement, military retirement, or social
security income.” (citing N.C. Gen. Stat. § 138A-24(a)(3)).
The SEI form provided by the State Ethics Commission
also includes similar language.
12. By his failure to file SEI forms that accurately
disclosed his extra-judicial income for the years of 2011-
2014, Respondent failed to observe appropriate standards
of conduct to ensure that the integrity and independence of
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the judiciary shall be preserved, in violation of Canon 1 of
the Code of Judicial Conduct.
13. By his failure to file SEI forms that accurately
disclosed his extra-judicial income for the years of 2011-
2014, Respondent failed to respect and comply with the law
and conduct himself in a manner that promotes public
confidence in the integrity and impartiality of the judiciary,
in violation of Canon 2A of the Code of Judicial Conduct.
14. Respondent’s failure to properly file SEI forms that
accurately disclosed his extra-judicial income for the years
of 2011[ ]to 2014 was the result of his own negligence, and
was not an attempt to willfully conceal his extra-judicial
income or benefit any party appearing before him. Though
not the result of ill motive, Respondent knew or should
have known to accurately include his extra-judicial income
in these reports and that his failure to do so could be
considered a violation of the State Government Ethics Act,
which Respondent acknowledged by his signature on the
SEI forms signed each year. The potential statutory
violations associated with this action aggravates this
misconduct to a level warranting more than a private letter
of caution. The Commission further concludes, as with
Respondent’s failure to properly file Canon 6 financial
disclosures, that the continuing and recurring nature of
Respondent’s admitted negligence year after year with
respect to his SEI forms, as distinguished from an isolated
incident or single occurrence, aggravates this misconduct
to a level warranting more than a private letter of caution.
15. Based on the foregoing, Respondent’s violations of
Canons 1 and 2A of the Code of Judicial Conduct with
respect to his failure to file accurate SEI forms from 2011
to 2014 amounts to conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute, in violation of N.C.G.S. [§ 7A- ]376(b).
C. Acceptance of Restitution in a Criminal Matter
While Presiding Over Court Session
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16. Canon 1 of the Code of Judicial Conduct sets forth
the broad principle that “[a] judge should uphold the
integrity and independence of the judiciary.” To do so,
Canon 1 requires that a “judge should participate in
establishing, maintaining, and enforcing, and should
personally observe, appropriate standards of conduct to
ensure that the integrity and independence of the judiciary
shall be preserved.”
17. Canon 2 of the Code of Judicial Conduct generally
mandates that “[a] judge should avoid impropriety in all
the judge’s activities.” Canon 2A specifies that “[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.” These principles embody the requirement that
a judge should not use the prestige and benefits of the office
to advance his own private and personal interests.
18. The Commission accepts Respondent’s contention,
as set forth in the Stipulations, that for both the April and
July 2014 criminal court sessions, the ADA assigned to
prosecute the former tenant calendared the matter in
Respondent’s courtroom for the purpose of achieving
restitution or other settlement of the matter. The
Commission further accepts that Respondent did not
exercise undue judicial authority to have his criminal case
against his former tenant heard in his court. The
Commission also accepts Respondent’s contention, as set
forth in the Stipulations, that the State’s dismissal of the
charge in exchange for payment of restitution was routine
practice in Craven County.
19. The touchstone of an inquiry under the Code of
Judicial Conduct is not whether the conduct was motivated
by malice or ill-intent, although that can be a relevant
consideration, but whether the conduct in issue threatens
to undermine public confidence in the independence,
impartiality and integrity of the judiciary. As such,
regardless of whether the restitution and dismissal
practice in Craven County is routine in criminal cases, and
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without taking a position on the propriety of such practice,
and regardless of who calendared the matter on
Respondent’s criminal docket, sitting judges are not
similarly situated with respect to resolving their personal
legal matters as other criminal complainants or civil
litigants.
20. In these circumstances, public confidence in the
independence, impartiality and integrity of the judiciary
depends on conduct, especially in the courtroom, that
objectively and reasonably conveys a clear separation of the
judge’s private interests from his judicial duties. As the
presiding judge in criminal district court on 25 April 2014
and 18 July 2014, it was incumbent upon Respondent to
independently evaluate the propriety of his personal
criminal matter being calendared before him as presiding
judge, and further, to recognize the obvious conflict of
interest and the potential for public concern as to his
influence over the outcome of a matter in which he had a
personal financial interest. As a criminal complainant, it
was also incumbent upon Respondent to maintain a clear
separation of his personal life from his judicial duties,
including ensuring that his personal address rather than
the Craven County Courthouse address was indicated as
his address on the criminal summons, and settling and
accepting cash restitution at a time when he was not also
exercising his judicial duties as presiding judge.
21. The Commission notes that at the disciplinary
recommendation hearing held on 11 May 2016, Respondent
requested that the Commission reject and dismiss his
stipulation that his conduct relating to the acceptance of
restitution warranted discipline as set forth in the
Stipulations. The Commission denies Respondent’s
request. In addition, as noted previously, Respondent
indicated on the record that he has no objections to the
facts contained in the Stipulations as they relate to this
issue[, stating,] “I know I stipulated to all the facts, and I
still stipulate that those are the facts[].” The facts relating
to the restitution issue were also admitted in Respondent’s
Verified Answer.
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22. The Commission concludes, therefore, that based
upon the clear, cogent and convincing evidence supporting
its findings of fact on this issue, Respondent (1) failed to
personally observe standards of conduct to ensure the
integrity and independence of the judiciary is preserved, in
violation of Canon 1 of the North Carolina Code of Judicial
Conduct; and (2) failed to conduct himself at all times in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary, in violation of Canon 2A
of the North Carolina Code of Judicial Conduct.
23. The Commission further concludes that the facts
and circumstances relating to the restitution issue
aggravate this misconduct to a level warranting more than
a private letter of caution. Accordingly, Respondent’s
violations of Canon 1 and Canon 2A of the Code of Judicial
Conduct also amount to conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute, in violation of N.C. Gen. Stat. § N.C.G.S. § 7A-
31[-]376(b).
(Citations omitted.) Based upon these findings of fact and conclusions of law, the
Commission recommended that this Court “issue a public reprimand to Respondent”
for “failing to report rental income on Canon 6 gift and income reports from 2010 to
2013,” “failing to report rental income as required on annual Statements of Economic
Interest filed with the State Ethics Commission from 2011 to 2014,” and “settling and
accepting cash restitution in a criminal matter initiated by Respondent while
presiding over the court session in which the criminal matter was docketed,” with
this recommendation resting upon the Commission’s earlier findings and conclusions
and the following additional dispositional determinations:
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1. Respondent has been fully cooperative with the
Commission’s investigation, voluntarily providing
information about the underlying matter.
2. Respondent agreed to enter into the Stipulations to
bring closure to this matter and because of his concern for
protecting the integrity of the court system.
3. With respect to filing accurate Canon 6 and SEI
reports, Respondent agreed to accept a recommendation of
public reprimand from the Commission and acknowledges
that the conduct set out in the Stipulations establishes by
clear and convincing evidence that this conduct is in
violation of the North Carolina Code of Judicial Conduct
and is prejudicial to the administration of justice that
brings the judicial office into disrepute in violation of G.S.
§ 7A-376([b]).
4. Respondent has an exemplary record of public
service having served honorably with the United States
Army where he was awarded the Army Commendation
Medal for service above and beyond the call of duty.
Respondent also worked for the United States Navy as a
civilian and served as a law enforcement office for over 5
years in North Carolina before beginning a career in law.
5. Respondent is also strongly dedicated to his
community, volunteering his time with numerous
organizations. Respondent has served as a volunteer fire
fighter and EMT, President of the Judicial District 3B Bar
Association, and trustee on the Board of Trustees for
Craven Community College. Respondent was a Havelock
Rotary Club member, has been a Master Mason in the
Cherry Point Masonic Lodge for over 30 years and is a
member of the Ancient and Accepted Scottish Rite.
6. Respondent has already taken remedial measures
by filing an amended Canon 6 disclosure form and is taking
similar steps to supplement his SEI forms from 2011-2014.
Respondent now understands the necessity of reporting his
extra-judicial income and will comply each year as set forth
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in Canon 6 of the Code of Judicial Conduct and the State
Government Ethics Act.
7. Respondent also acknowledges the potential for
conflicts of interest to arise in his role as a landlord. If he
were to encounter another incident which would require
taking out criminal charges against a current or former
tenant, Respondent understands and agrees that the
matter must be kept separate from any of his judicial
duties and he must make reasonable efforts to ensure his
role and schedule as a judge will not conflict with any
criminal action where he is the prosecuting witness.
Respondent has already shown initiative to comply with
the Code by recusing himself when the former tenant
obtained a new unrelated criminal charge which was
scheduled before Respondent. When Respondent realized
the matter was on his calendar, he properly recused
himself.
(Citations omitted.)
When reviewing a recommendation from the Commission, the Supreme Court
“acts as a court of original jurisdiction, rather than in its typical capacity as an
appellate court.” In re Hartsfield, 365 N.C. 418, 428, 722 S.E.2d 496, 503 (2012)
(order) (quoting In re Badgett, 362 N.C. 202, 207, 657 S.E.2d 346, 349 (2008) (order)).
We have discretion to “adopt the Commission’s findings of fact if they are supported
by clear and convincing evidence, or [we] may make [our] own findings.” Id. at 428,
722 S.E.2d at 503 (alterations in original) (quoting In re Badgett, 362 N.C. at 206, 657
S.E.2d at 349). The scope of our review is to “first determine if the Commission’s
findings of fact are adequately supported by clear and convincing evidence, and in
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turn, whether those findings support its conclusions of law.” Id. at 429, 722 S.E.2d
at 503 (quoting In re Badgett, 362 N.C. at 207, 657 S.E.2d at 349).
After careful review, this Court concludes that the Commission’s findings of
fact, including the dispositional determinations set out above, are supported by clear,
cogent, and convincing evidence in the record. In addition, we conclude that the
Commission’s findings of fact support its conclusions of law. As a result, we accept
the Commission’s findings and conclusions and adopt them as our own. Based upon
those findings and conclusions and the recommendation of the Commission, we
conclude and adjudge that Respondent should be publicly reprimanded.
Therefore, pursuant to N.C.G.S. §§ 7A-376(b) and -377(a5), it is ordered that
Respondent Peter Mack, Jr. be PUBLICLY REPRIMANDED for conduct prejudicial
to the administration of justice that brings the judicial office into disrepute in
violation of N.C.G.S. § 7A-376(b) and that violates Canons 1, 2A, and 6C of the North
Carolina Code of Judicial Conduct.
By order of the Court in Conference, this the 20th day of December, 2016.
s/Ervin, J.
For the Court
WITNESS my hand and the seal of the Supreme Court of North
Carolina, this the 21st day of December, 2016.
Clerk of the Supreme Court
s/M.C. Hackney
Assistant Clerk
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