In re Foster ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 215A19
Filed 27 September 2019
IN RE INQUIRY CONCERNING A JUDGE, NO. 18-070
ANGELA C. FOSTER, 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 on 23 May 2019
that respondent Angela C. Foster, a Judge of the General Court of Justice, District
Court Division, Judicial District Eighteen, be censured for conduct in violation of
Canons 1, 2A, 3A(3), and 3A(4) of the North Carolina Code of Judicial Conduct, and
for 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 28 August 2019, but was determined on the record
without briefs or oral argument pursuant to Rule 30(f) of the North Carolina Rules of
Appellate Procedure and Rule 3 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 is whether District Court Judge Angela C. Foster,
respondent, should be censured for violations of Canons 1, 2A, 3A(3), and 3A(4) of the
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North Carolina Code of Judicial Conduct amounting 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). Respondent has not challenged the findings of fact made by the
Judicial Standards Commission (the Commission) or opposed the Commission’s
recommendation that she be censured by this Court.
On 22 August 2018, Commission Counsel filed a Statement of Charges against
respondent alleging that she had engaged in conduct inappropriate to her judicial
office by making inappropriate comments; by failing to remain patient, dignified, and
courteous with the parties appearing before her; by failing to provide every person
legally interested in a proceeding, or the person’s lawyer, the full right to be heard
according to the law; and by abusing the contempt power. Respondent fully
cooperated with the Commission’s inquiry into this matter. In the Statement of
Charges, Commission Counsel asserted that respondent’s actions constituted willful
misconduct in office and conduct prejudicial to the administration of justice that
brings the judicial office into disrepute or otherwise constituted grounds for
disciplinary proceedings under Chapter 7A, Article 30 of the North Carolina General
Statutes.
Respondent filed her answer on 11 September 2018. On 26 March 2019,
Commission Counsel and respondent entered into a Stipulation and Agreement for
Stated Disposition (the Stipulation) containing joint evidentiary, factual, and
disciplinary stipulations as permitted by Commission Rule 22 that tended to support
a decision of censure. The Stipulation was filed with the Commission on 2 April 2019.
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The Commission heard this matter on 12 April 2019 and entered its recommendation
that same day, which contains the following stipulated findings of fact:
1. On or about January 2, 2018, Respondent
presided over a contempt hearing in Morrow v. Livesay,
Guilford County File No. 15CVD5571. The matter was
calendared by the defendant Jeffery Livesay against the
plaintiff Kathi Morrow, to determine whether Ms. Morrow
should be held in contempt after the parties’ fifteen (15)
year old twin sons, who reside with her, refused to visit
with their father Mr. Livesay during the winter holiday.
2. At the contempt hearing on or about January
2, 2018, Ms. Morrow’s counsel appeared on her behalf and
objected to the court’s consideration of the contempt motion
on the grounds that Ms. Morrow received insufficient
notice of the hearing.
3. Respondent acknowledged counsel’s objection
as to timely notice of the hearing, but instead of continuing
the matter, ordered Ms. Morrow and the twin boys to
appear in court within thirty (30) minutes. At that time,
Respondent stated that “I’m not saying that we’re going
through with the hearing, but you need to call your client
and tell her to get here because I have a few choice words
that I need to say to her . . . .” Respondent further stated
that “the boys need to come . . . so that they can hear that
their mother can go to jail for their behavior . . . “[a]nd [sic]
if a child wants their parent to go to jail, I got a problem
with that as well.”
4. When Ms. Morrow and the teenage twin boys
arrived, Respondent convened the hearing again and asked
Ms. Morrow and her sons to stand, and swore them in as if
to give testimony. At that time, Respondent began to
question the two boys regarding their refusal to participate
in the court ordered visitation with their father and
inquired of the boys whether they understood that their
mother could be incarcerated for contempt if they
continued to resist visitation with their father.
5. After the boys told Respondent that they
would rather have their mother go to jail than visit with
their father, Respondent became deeply concerned and
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stated “my children would never allow me to go to jail for
any reason whatsoever . . . I’m appalled because my
children respect me so much they would never allow that
to happen.” Respondent vigorously questioned and
explained the profound significance and detrimental
impact their refusal to visit with their father would have
on themselves and their mother.
6. After hearing from the boys that they had an
understanding of the consequences of their refusal to
comply with a court order, Respondent then ordered the
bailiff to handcuff Ms. Morrow and place her in a holding
cell. Ms. Morrow’s counsel immediately objected to the
decision to put her into custody because no contempt
hearing had taken place and neither counsel nor his client
were given an opportunity to be heard. Respondent
nevertheless instructed the bailiff to take Ms. Morrow to a
holding cell over her counsel’s objections.
7. After Ms. Morrow was handcuffed and
removed from the courtroom, Respondent again asked the
twin boys to stand and then proceeded to convey to them
how “appalled” she was at their behavior and how
“ashamed” they should be of themselves for allowing their
mother to go to jail for their behavior. During this colloquy,
Respondent also lectured the twin boys about her personal
experiences as a parent as well as her experiences as a
certified juvenile judge. Respondent shared personal
stories, as well as disturbing cases she had presided over
where children had suffered unfortunate outcomes.
8. Respondent informed the boys that if their
mother was found in contempt, she would go to jail for sixty
(60) days and explained that meant they would be in their
father’s custody for that entire time. Respondent appealed
to the boys’ sense of reason by questioning whether it made
more sense to spend six (6) days of visitation with their
father as originally ordered, or sixty (60) days while their
mother was incarcerated. The boys finally relented and
agreed to visit their father.
9. After reaching this understanding with the
boys, Respondent then asked to have Ms. Morrow brought
back into the courtroom and commented “as far as your
full-blown hearing, it is going to be continued. You two
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need to pick a date because I do not believe that you [had]
enough time to truly prepare.”
10. At the conclusion of the hearing, both parties
thanked Respondent for her efforts trying to resolve the
boys’ refusal to visit with their father.
11. Respondent believed that her actions in
ordering Ms. Morrow to be handcuffed and put into custody
without a hearing, opportunity to be heard, or written
order were appropriate to deescalate an unfortunate
situation and resolve the visitation issues without further
involving the Court. Respondent has previously placed
litigants in temporary custody for a short “cooling-off
period” without an opportunity to be heard and found that
practice to be successful in getting litigants to comply with
the Court’s directives. After such temporary detention,
Respondent typically offers the litigant an opportunity to
apologize to the Court in lieu of facing a contempt hearing
and a jail sentence.
12. Respondent acknowledges that she
specifically intended to have Ms. Morrow handcuffed and
taken into custody without a hearing and that this decision
was an improper or wrongful use of the power of her
judicial office and that she knew or should have known that
doing so was beyond the legitimate exercise of her
authority.
(Brackets in original and citations to pages of the Stipulation omitted.)
Based on these findings of fact, the Commission concluded as a matter of law
that:
1. 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.”
2. Canon 2 of the Code of Judicial Conduct
generally mandates that “[a] judge should avoid
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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.”
3. Canon 3 of the Code of Judicial Conduct
governs a judge’s discharge of his or her official duties.
Canon 3A(3) requires a judge to be “patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and
others with whom the judge deals in the judge’s official
capacity . . . . . [sic]” Canon 3A(4) requires a judge to “accord
every person who is legally interested in a proceeding, or
the person’s lawyer, full right to be heard according to law
. . . .”
4. Upon the Commission’s independent review
of the stipulated facts concerning Respondent’s conduct on
January 2, 2018 in presiding over the contempt hearing in
Morrow v. Livesay, Guilford County File No. 15CVD5571,
and the audio and transcript thereof included with the
Stipulation, the Commission concludes that Respondent:
a. failed to personally observe appropriate
standards of conduct necessary to ensure that the
integrity of the judiciary is preserved, in violation of
Canon 1 of the North Carolina Code of Judicial
Conduct;
b. failed to conduct herself in a manner that
promotes public confidence in the integrity of the
judiciary, in violation of Canon 2A of the North
Carolina Code of Judicial Conduct;
c. failed to be patient, dignified, and courteous
to litigants, lawyers and others who she dealt with
in her official capacity, in violation of Canon 3A(3) of
the North Carolina Code of Judicial Conduct;
d. failed to afford every person who is legally
interested in a proceeding, or the person’s lawyer, a
full right to be heard according to the law in
violation of Canon 3A(4) of the North Carolina Code
of Judicial Conduct.
13. [sic] The Commission also notes that
Respondent agreed in the Stipulation that she violated the
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foregoing provisions of the North Carolina Code of Judicial
Conduct.
14. The Commission further concludes that the
facts establish that Respondent engaged in willful
misconduct in office and conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute in violation of N.C. Gen. Stat. § 7A-376(b). See
also Code of Judicial Conduct, Preamble (“[a] violation of
this Code of Judicial Conduct may be deemed conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute.”).
15. More than 40 years ago, the Supreme Court
first defined “willful misconduct in office” as “improper and
wrong conduct of a judge acting in his official capacity done
intentionally, knowingly and, generally in bad faith. It is
more than a mere error of judgment or an act of
negligence.” In re Edens, 290 N.C. 299, 305 (1976). As the
Supreme Court further explained in In re Nowell, 293 N.C.
235 (1977), while willful misconduct in office necessarily
encompasses “conduct involving moral turpitude,
dishonesty, or corruption,” it also can be found based upon
“any knowing misuse of the office, whatever the motive.”
Id. at 248. The Supreme Court also found that “these
elements are not necessary to a finding of bad faith. A
specific intent to use the powers of the judicial office to
accomplish a purpose which the judge knew or should have
known was beyond the legitimate exercise of his authority
constitutes bad faith.” Id.
16. In keeping with this long-standing definition,
the Commission finds that Respondent engaged in willful
misconduct in office. In reaching this conclusion, the
Commission does not review the legal issue of whether Ms.
Morrow may properly have been held in contempt based on
her sons’ refusal to visit with their father. Respondent
admits that she purposely avoided any legal ruling on the
contempt issues before her and continued the hearing to a
later date. Instead, the Commission considers
Respondent’s conduct in ordering Ms. Morrow into custody
and then threatening the boys to achieve compliance with
the visitation order without a contempt hearing to be
intentional and willful.
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17. The facts establish that Respondent acted
with the specific intent to avoid what Respondent referred
to as a “full-blown hearing,” which Respondent admitted
could not properly go forward because of inadequate notice.
The facts also establish that this conduct was not a mere
“error of judgment or mere lack of diligence” but was
intentional and part of Respondent’s admitted pattern of
ordering litigants into temporary custody to achieve
compliance with her directives without resort to the
contempt power.
18. Importantly, Respondent has indicated that
her decision to order Ms. Morrow into custody and her
threats and harsh language directed to the boys were
undertaken with benevolent motives to “deescalate an
unfortunate situation and resolve the visitation issues
without further involving the Court.” Even so, “bad faith”
includes “any knowing misuse of the office, whatever the
motive.” In re Nowell, 293 N.C. at 248. The facts establish
that Respondent acted in bad faith because she had “[a]
specific intent to use the powers of the judicial office to
accomplish a purpose which the judge knew or should have
known was beyond the legitimate exercise of [her]
authority. [sic] Id. Respondent concedes this point as well.
19. Having concluded that Respondent engaged
in willful misconduct in office, the Commission also
concludes that Respondent’s conduct amounts to conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute. The Supreme Court in Nowell
explained that “willful misconduct in office of necessity is
conduct prejudicial to the administration of justice that
brings the judicial office into disrepute.” Nowell, 293 N.C.
at 248.
20. The Supreme Court also defined conduct
prejudicial to the administration of justice in In re Edens,
290 N.C. 299 (1976) and stated as follows:
Conduct prejudicial to the administration of justice
that brings the judicial office into disrepute has been
defined as “conduct which a judge undertakes in good
faith but which nevertheless would appear to an
objective observer to be not only unjudicial conduct
but conduct prejudicial to the public esteem for the
judicial office.” Whether the conduct of a judge may be
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so characterized “depends not so much upon the
judge’s motives but more on the conduct itself, the
results thereof, and the impact such conduct might
reasonably have upon knowledgeable observers.”
Id. at 305–306 (internal citations omitted).
21. In the present case, regardless of what
Respondent perceived to be good motives for undertaking
her course of conduct, Respondent’s actions in directing the
bailiff to handcuff Ms. Morrow and escort her out of the
courtroom without an opportunity to be heard and without
any indication of contemptuous behavior by Ms. Morrow in
the courtroom, and then continuing to berate and threaten
Ms. Morrow’s children, is conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute.
22. As the Supreme Court recognized in In re
Nowell, “[t]he power of the district court over the lives and
everyday affairs of our citizens makes it imperative that
the district court judges of the State not only be fully
capable but also dedicated to carrying out their official
responsibilities in accordance with the law and established
standards of judicial conduct.” 293 N.C. at 252. In this case,
Respondent’s conduct fell below the standards expected in
Canon 1, Canon 2A, Canon 3A(3) and Canon 3A(4) and the
facts establish that she engaged in willful misconduct in
office and conduct prejudicial to the administration of
justice that brings the judicial office into disrepute.
23. Respondent also acknowledges that the
factual stipulations contained herein are sufficient to prove
by clear and convincing evidence that her actions
constitute willful misconduct in office and that she willfully
engaged in misconduct prejudicial to the administration of
justice that brings the judicial office into disrepute in
violation of N.C. Gen. Stat. § 7A-376.
(Brackets in original and citations to pages of the Stipulation omitted.)
Based on these findings of fact and conclusions of law, the Commission
recommended that this Court censure respondent. The Commission based this
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recommendation on its earlier findings and conclusions, as well as the following
additional dispositional determinations:
1. The Supreme Court in In re Crutchfield, 289
N.C. 597 (1975) first addressed sanctions under the
Judicial Standards Act and stated that the purpose of
judicial discipline proceedings “is not primarily to punish
any individual but to maintain due and proper
administration of justice in our State’s courts, public
confidence in its judicial system, and the honor and
integrity of its judges.” Id. at 602.
2. In cases where willful misconduct in office is
found, however, the Supreme Court has found that censure
is an appropriate sanction. As stated in In re Martin, 333
N.C. 242 (1993), “Judges especially must be vigilant to act
within the bounds of their judicial power. When judges
knowingly act beyond these bounds, it amounts to willful
misconduct which brings the judicial office into disrepute
and prejudices the administration of justice. In such cases
censure at least is proper.” Id. at 245.
3. The Commission recommends censure rather
than a more severe sanction based on the following
mitigating factors:
a. Respondent has been cooperative with the
Commission’s investigation, voluntarily providing
information about the incident and accepting
responsibility for her actions.
b. Respondent has been active in her
community and throughout Guilford County and has
served as a duly elected judge since 2008.
c. Respondent, through a written statement
offered to the hearing panel expressed regret that
her actions were inappropriate and offered an
apology to the Livesay/Morrow family for the
manner in which she handled the matter.
d. The factual stipulations as to the merits
make clear that Respondent had engaged in similar
conduct in the past, and therefore the Commission
gives no weight to the proposed mitigating factor
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that the incident involving Ms. Morrow was an
isolated event.
4. The Commission and Respondent
acknowledge the ultimate jurisdiction for the discipline of
judges is vested in the North Carolina Supreme Court
pursuant to Chapter 7A, Article 30 of the North Carolina
General Statutes, which may either accept, reject, or
modify any disciplinary recommendation from the
Commission.
5. Pursuant to N.C. Gen. Stat. § 7A-377(a5),
which requires that at least five members of the
Commission concur in a recommendation of public
discipline to the Supreme Court, all seven Commission
members present at the hearing of this matter concur in
this recommendation to censure Respondent.
(Emphasis in original and citations to pages of the Stipulation omitted.)
“The Supreme Court ‘acts as a court of original jurisdiction, rather than in its
typical capacity as an appellate court’ when reviewing a recommendation from the
Commission.” 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)). Neither
the Commission’s findings of fact nor its conclusions of law are binding, but they may
be adopted by this Court. Id. at 428, 722 S.E.2d at 503 (citing In re Badgett, 362 N.C.
at 206, 657 S.E.2d at 349). If the Commission’s findings are adequately supported by
clear and convincing evidence, the Court must determine whether those findings
support the Commission’s conclusions of law. Id. at 429, 722 S.E.2d at 503 (citing In
re Badgett, 362 N.C. at 207, 657 S.E.2d at 349).
The Commission found the stipulated facts to be supported by “clear, cogent
and convincing evidence.” In executing the Stipulation, respondent agreed that those
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facts and information would serve as the evidentiary and factual basis for the
Commission’s recommendation, and respondent does not contest the findings or
conclusions made by the Commission. We agree that the Commission’s findings are
supported by clear, cogent, and convincing evidence, and we now adopt them as our
own. Furthermore, we agree with the Commission’s conclusions that respondent’s
conduct violates Canons 1, 2A, 3A(3), and 3A(4) of the North Carolina Code of Judicial
Conduct and is prejudicial to the administration of justice, thus bringing the judicial
office into disrepute in violation of N.C.G.S. § 7A-376.
This Court is not bound by the recommendations of the Commission. In re
Hartsfield, 365 N.C. at 428–29, 722 S.E.2d at 503. Rather, we may exercise our own
judgment in arriving at a disciplinary decision in light of respondent’s violations of
several canons of the North Carolina Code of Judicial Conduct. Id. at 429, 722 S.E.2d
at 503. Accordingly, “[w]e may adopt the Commission’s recommendation, or we may
impose a lesser or more severe sanction.” Id. (citation omitted). The Commission
recommended that respondent be censured. Respondent does not contest the
Commission’s findings of fact or conclusions of law and voluntarily entered into the
Stipulation with the understanding that the Commission’s recommendation would be
to censure respondent.
We appreciate respondent’s cooperation and candor with the Commission
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throughout these proceedings. Weighing the severity of respondent’s misconduct
against her candor and cooperation, we conclude that the Commission’s
recommended censure is appropriate.
Therefore, the Supreme Court of North Carolina orders that respondent
Angela C. Foster be CENSURED for conduct in violation of Canons 1, 2A, 3A(3), and
3A(4) of the North Carolina Code of Judicial Conduct, and for conduct prejudicial to
the administration of justice that brings the judicial office into disrepute in violation
of N.C.G.S. § 7A-376.
By order of the Court in Conference, this the 27th day of September, 2019.
s/Davis, J.
For the Court
WITNESS my hand and the seal of the Supreme Court of North Carolina, this
the 27th day of September, 2019.
AMY L. FUNDERBURK
Clerk of the Supreme Court
s/M.C. Hackney
Assistant Clerk
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