The Nifong Law

North Carolina State Senate Majority Leader Tony Rand (D-Bladen/Cumberland) and State Senator Eddie Goodall (R-Union/Mecklenburg) have co-sponsored a bill that will serve to ensure the removal of disgraced District Attorney Mike Nifong from office in the event that the State Bar disbars the defendant. Senate Bill 117, which was referred to the Senate’s Civil Judiciary Committee on Tuesday, proposes granting the governor the authority to remove from office a district attorney or judge, in the event that they are no longer authorized to practice law. The bill also sets forth an immediate suspension of their salary once disbarred.

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Until, or unless, this bill becomes law, and assuming that Judge Hudson continues to ignore the statutory requirements of 7A-66, District Attorney Nifong will continue collecting his salary for an office in which he could not lawfully function, if he is disbarred and refuses to resign as district attorney. The necessity for a new law was made clear recently when former Judge James Ethridge, a fellow client of DA Nifong’s attorney, David Freedman, refused to resign his judgeship for several months, after being disbarred for fraudulently taking an ailing elderly client's life savings and home.

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In October, Jason Beck of The Dunn Daily Record reported on Ethridge’s disbarment:

“Mr. Ethridge was stripped of his law license last Friday by the North Carolina Bar Association, due to a 2001 incident in which he put an elderly woman's life savings in his bank account, while he was serving as a lawyer in Smithfield.

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“Though Mr. Ethridge was scheduled to hold court in Johnston County today, he will not be sentencing anyone for a while. According to District Court Judge Andy Corbett, Mr. Ethridge has been taken out of the rotation.

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"I have been instructed by the administrative office of court to not assign him to court," Judge Corbett said. "He can still appeal it, he will still draw his pay, but he just will not be assigned to court while his case is pending. He will not be holding court until further notice."

The News and Observer's Mandy Locke would later offer this description of Ethridge’s misdeeds.

“In 2001, Ethridge met Rosalind Sweet, a retired schoolteacher who was battling Alzheimer's disease. A neighbor has said Sweet thought Ethridge was her boyfriend. Over the course of several months, Sweet deeded her home to Ethridge and handed over her life savings of $14,249. During that period, a social worker found her living in a home without running water, her kitchen cupboards bare.

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“Ethridge told a committee of the State Bar in October that Sweet begged him to safeguard her assets from relatives wanting to put her in a nursing home and take her money. Ethridge said he agreed to help just to be kind.

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“During the fall of 2001, Ethridge used Sweet's money to upholster a chair in his office and cut checks to his wife and for cash. Months later, he handed over an envelope with Sweet's name on it, full of cash, for a pastor to hold, according to records and testimony presented during the State Bar hearing.

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“Ethridge returned the final $2,250 he owed Sweet's estate a month before the State Bar hearing.”

Despite being legally unable to perform his duties as judge, Ethridge stalled his resignation for months. In January, Locke exposed the costs incurred by the State of North Carolina as a result of Mr. Ethridge’s refusal to resign.

“A judge who lost his law license and can no longer hear cases is still drawing thousands of dollars on the state payroll -- and will continue until someone figures out how to get rid of him.

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"The N.C. State Bar stripped James Ethridge of his law license in October after deciding he had swindled an ailing, older woman of her home and life savings while he was a lawyer in 2001. Ethridge was elected to the district court bench in 2004, where he handled a busy caseload of criminal and domestic and child custody disputes in Johnston, Harnett and Lee counties.

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"Without a law license, Ethridge is barred from holding court and signing orders. But he is not barred from keeping the job. Getting Ethridge off the bench has become a "real quagmire," said Pamela Weaver Best, deputy counsel for the state Administrative Office of the Courts. Best said she can't recall the state agency ever having to force a judge off the bench because he's been disbarred.

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"We don't have a road map of how to proceed in a situation like this," said Paul Ross, executive secretary for the state's Judicial Standards Commission, the disciplinary board for judges. "No one anticipated something like this. You just don't think judges are going to get disbarred."

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"On Oct. 10, the head of the Administrative Office of the Courts, which oversees judges, clerks and other state court personnel, told him he couldn't hold court. Taxpayers have paid $9,300 to hire substitute judges to cover his shifts, according to AOC records. They're also responsible for 31 lunch tabs and reimbursed mileage for the emergency judge's trips to courthouses in Smithfield, Lillington and Sanford.

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"The state has also deposited salary of more than $25,000 into Ethridge's bank account for work he couldn't do.

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"There's no end in sight. The state may be forced to pay Ethridge's annual salary of $101,376 until his term as judge ends in December 2008."

Two days after Locke’s story ran, the judge finally resigned. Locke’s victory lap:

"An embattled District Court judge decided to resign Wednesday rather than continue to be paid for a job he couldn't do.

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"The move came two days after state officials admitted they didn't know how to remove him from the bench even though the N.C. State Bar has stripped him of his law license. Ethridge, who was elected judge in Johnston, Harnett and Lee counties in 2004, will officially step down Tuesday, he wrote in a letter to be delivered to the governor this week.

"James made this decision because it was the right thing to do in light of the controversy," [Alan] Schneider [another Ethridge attorney] said Wednesday night. "It was not because of the pressure."

“On Tuesday night, the Johnston County Republicans who helped carry him to the bench urged him to make a "prudent" decision. On Wednesday, the state and county Democratic Party called on Ethridge to resign immediately.”

A review of the procedure entailed in a bill becoming a law after being referred to committee appears to reveal that it would be unlikely to take effect prior to Nifong’s hearing before the State Bar in June.

Reference to Committee

Normally, when a bill is introduced, the Chair of the Rules and Operations of the Senate Committee for Senate bills and the Speaker of the House of Representatives for House bills name a committee to which the bill will be assigned for careful study and recommendation. If the committee approves the bill, it reports this fact and the bill is placed on the calendar - the daily schedule of business - for consideration by the full membership of the body. Changes to the bill called "amendments" may be recommended by the committee or may be proposed by any member from the floor.

Consideration by First House

When the time comes for a consideration of the bill by the full membership of the house (Senate or House of Representatives), the Chair will recognize the sponsor of the bill or the chair of the committee which recommended the bill for passage. That person will explain the bill, and then any member who wishes to speak for or against the bill will be heard. Sometimes there is lengthy and heated debate; sometimes there is virtually no debate at all. After all who wish to be heard have spoken, a vote is taken. If the vote is favorable, the bill is said to have passed its second reading and moves to its third and final reading, at which time there may be more debate.

Consideration by Second House

After a bill has passed its third reading in the house in which it was introduced, it is sent to the other house, where it goes through the same process as in the first house - that is, it is referred to committee, and if approved, is debated and voted on at the second and third readings on the floor.

Concurrence in Amendments

It often happens that the second house will make changes in a bill which was passed by the house in which the bill originated. In such cases the bill must be returned to the house of origin with a request that that body concur in the changes. If the original house does concur, the bill is ready to be enrolled and signed into law. If the original house objects to the amendments adopted in the other house, the two presiding officers may appoint members to a conference committee which seeks to reconcile the differences between the two houses. If the committee can agree upon the disputed subject, the committee reports to each house, and the two houses vote on the recommended text. If either house rejects the conference committee's recommendation, new members to the conference committee may be appointed to try again, otherwise the bill is defeated.

Enrollment, Ratification, and Publication

After a bill passes both houses, it is enrolled. A clean copy, including all amendments, is prepared, with space for the signatures of the two presiding officers, and the governor, if necessary. The enrolled copy is taken to each presiding officer during the daily session. Each officer signs the enrolled copy. When the second signature is affixed, the bill is said to have been ratified. If the bill is a local law, it becomes law at that point. In November 1996, the citizens of North Carolina voted to amend the State Constitution to allow for a gubernatorial veto (Section 22 of Article II of the North Carolina Constitution). All Public Bills other than bills making appointments, proposing constitutional amendments, or revising districts are presented to the Governor on the day following ratification for the Governor's approval or veto. If the Governor signs the bill or takes no action on the bill within ten days after presentation, the bill becomes law. After adjournment of the General Assembly, the Governor has 30 days to act on a bill. The Governor is required to reconvene the General Assembly if a bill is vetoed after adjournment, unless a written request is received and signed by a majority of the Members of both houses that it is not necessary to reconvene. If the Governor vetoes a bill, the bill is returned to the original house where 3/5 of present and voting members can vote to override the veto. If the original house votes to override the veto, the bill is sent to the second house where 3/5 of present and voting members must also vote to override the veto before the bill can become law. After it becomes law, the term "bill" is no longer used. The enrolled act or law is given a chapter number and is published under that number in a volume called "Session Laws of North Carolina."

While we applaud Senators Rand and Goodall for taking this step to prevent Nifong from turning the same trick as Ethridge, the news of the bill serves as a reminder that Judge Orlando Hudson’s decision to ignore the statutory requirements of 7A-66 may serve to benefit Defendant Nifong at the expense of the taxpayers of North Carolina. By delaying action on the 7A-66 affidavit until after the State Bar concludes its hearing, Judge Hudson has perhaps made it possible for Nifong to continue as a disbarred, non-working District Attorney while collecting a paycheck even if the hearing leaves Nifong legally unable to perform the duties of his office.