Parallel Proceedings

In his order holding in abeyance action on Beth Brewer’s 7A-66 affidavit, pending Defendant Nifong’s State Bar hearing, Judge Orlando Hudson describes the State Bar as a regulatory agency and appears to support his order delaying action on the basis of two curious determinations:

1. A probable cause determination must be made after the State Bar hearing.
2. Defendant Nifong has the due process right to defend himself against the charges brought by the State Bar, as a regulatory agency, and against the charges subject to an inquiry by the superior court at separate points in time, and not simultaneously.

With regard to Hudson’s first finding, the North Carolina Court of Appeals appears to disagree. In their 2004 ruling on the appeal of the dismissal of a similar inquiry against Onslow County District Attorney Dewey Hudson, the Appellate Court stated in very precise terms that the superior court is mandated by statute to act in a specific manner upon the filing of a 7A-66 affidavit.

“Upon filing of an affidavit seeking removal of a district attorney, the superior court is required to perform a two-prong analysis. First, the court must determine whether “the charges if true constitute grounds for suspension” of the district attorney. Second, the court must also find “probable cause for believing that the charges are true.” If the court finds both of these things exist, then a hearing is to be held upon the charges, upon due notice to the district attorney.”

A reading of the statute helps to better understand the Appellate Court's decision and demonstrates clearly that Judge Hudson, in deciding to wait to evaluate whether the charges, if true, merit removal, and whether probable cause to believe them true exists, ignored the statutory directive to, within thirty days, review the affidavit and perform the "two-pronged" analysis required by law.

"A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A‑41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding." [emphasis added]

Hudson's second finding appears to be equally creative.

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On the basis of Judge Hudson’s second finding and with the assumptions that he would neither afford Defendant Nifong rights of due process beyond those another citizen might enjoy, nor would he ignore the statutory and appellate court directives without cause, one might erroneously conclude that concurrent parallel proceedings were unheard of and, perhaps, even unconstitutional. Despite the false impression given by Judge Hudson, parallel proceedings are both constitutional and growing in frequency, often at the insistence of the government and particularly with regard to overlapping judicial and regulatory agencies.

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In an article for the Law Journal Newsletters, Jonathan S. Feld, with co-authors Michael J. Diver and Gail H. Kim, describes parallel proceedings as:

“Parallel proceedings involve simultaneous or successive investigations and/or litigation of separate criminal and civil actions by different government agencies arising out of the same set of facts.” [emphasis added]

Attorney Walter P. Loughlin, a former Assistant United States Attorney and Chief Appellate Attorney in the United States Attorney's Office for the Southern District of New York, expands on that description and notes the increasing frequency of parallel proceedings, apparently for those not graced with the extraordinary due process of law granted to Defendant Nifong by Judge Hudson.

“Perhaps there was a time when the term “parallel proceedings” was not part of the vocabulary of in-house counsel and private practitioners. If that were ever true, it is certainly not the case today. Parallel proceedings, and the challenges they give rise to, in terms of legal issues and strategic choices, have become commonplace.

“As a general rule, parallel proceedings is a term that refers to two different circumstances. The first involves two actions, one civil and one criminal, both brought by the government, either concurrently or successively, in which the allegations of unlawful conduct arise out of the same set of facts. The second involves two actions, again arising out of the same facts or transactions, and again concurrent or successive, one of which is brought by the government as a criminal prosecution or enforcement action, while the other is brought as a civil action by a private plaintiff.”

Loughlin notes further that the United States Supreme Court disagrees with Hudson’s creative due process right to face one tribunal at a time.

“Does the government have the power to conduct parallel civil and criminal proceedings, or should it be required to make a choice as to how to respond to perceived unlawful conduct? The Supreme Court supplied the answer to this question in United States v. Kordel, 379 U.S. 1 (1970), in which it stated that “[I]t would stultify enforcement of federal law to require a government agency invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.”

Attorneys Joseph F. Savage Jr. and Robert J. Durbin note that parallel proceedings can include those which may lead to disbarment.

“It is standard practice for different government agencies to investigate the same set of circumstances. Such parallel proceedings typically involve a civil or administrative entity, like the Internal Revenue Service or the Securities and Exchange Commission, and a criminal authority, like the U.S. attorney’s office. Parallel proceedings are not necessarily separate proceedings — they often involve significant cooperation and coordination among government agencies. These investigations may be simultaneous or sequential and they can result in potential sanctions ranging from administrative orders (disbarment, disgorgement, etc.) to imprisonment.”

Parallel proceedings are so common, in fact, that the Department of Justice has a manual specific to them. The DOJ manual reads, in part:

“5-13.1 DEFINITION OF PARALLEL PROCEEDINGS

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“Parallel proceedings are defined as situations where both criminal and civil investigations/cases are in progress at the same time. An example would be where a trustee is conducting an adversary proceeding to recover property in a chapter 7 case, while, at the same time, there is a criminal investigation of the debtor for bankruptcy fraud involving concealment of the same asset.

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“5-13.2 NEED FOR PARALLEL PROCEEDINGS

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“Because both civil and criminal investigations and proceedings may consume a great deal of time, it is usually impractical to hold one in abeyance for any substantial length of time while the other proceeds to conclusion. Thus, it is normal for both criminal and civil cases to proceed at the same time. Due consideration must be given to both proceedings to ensure that one does not improperly impact the other.”

The Supreme Court of the State of Michigan addressed concurrent parallel proceedings between the State Bar Grievance Hearing Board and the State’s Judicial Tenure Commission by seemingly finding no due process concerns, while affirming the removal of a judge from office.

“We do note, however, that concurrent disciplinary proceedings against Judge Ryman have concluded in the Judicial Tenure Commission and are now pending on petition for review before this Court. These Tenure Commission proceedings involve a number of charges of misconduct concerning activities both prior to and during Judge Ryman's judicial tenure. The present State Bar and General Court Rules regarding the jurisdiction of the State Bar Grievance Board (State Bar Rules 15 and 16) and the Judicial Tenure Commission (GCR 1963, 932) appear to permit such parallel proceedings (Cf. In re Kapcia, 389 Mich 306; 205 NW2d 436 [1973]).” …“We conclude that the hearing panel's and board's findings and conclusions are properly supported on the whole record. We further conclude that these findings and conclusions fully support and warrant disciplinary action.”

Further demonstrating the absence of a strict interpretation of due process of law as preventing a defendant from facing two tribunals outside of the Durham Superior Court are the many law firms that promote their familiarity and proficiency with addressing the challenges of what Hudson alone finds to be a violation of due process of law.

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Texas attorney Jeffrey Lynch boasts on his website:

“The following is a sample of the representations handled by Mr. Lynch:

“Defense of attorney in parallel proceedings before the Grievance Committee and in District Court, resulting in dismissal for the Defendant attorney.”

Farella Braun + Martel , a California law firm, self describes their acumen as:

“We regularly represent corporate officers and directors in both judicial and regulatory proceedings, covering cases involving insider trading, stock manipulation, revenue recognition issues, other accounting practices, mergers and acquisitions, and issues of corporate control and management. We routinely provide clients with securities advice.

“We frequently represent parties in parallel proceedings that include securities class actions, Securities Exchange Commission regulatory and enforcement matters, and grand jury proceedings.”

Manatt’s Criminal Defense & Investigations Practice Group, with offices on both coasts, touts its expertise in parallel proceedings:

“We understand and have had long experience in dealing with “parallel proceedings,” which involve regulatory, criminal, and civil issues simultaneously. Depending on how matters are investigated and prosecuted by the government and private parties, these may include:

• Civil forfeiture and penalty proceedings brought by the government
• Civil litigation by private parties or by class action plaintiffs
• “Whistle blower" lawsuits or Qui Tam actions under the Federal False Claims Act or similar state laws
• Unfair competition litigation under the antitrust statutes, California’s Unfair Competition Law (§ 17200) and other state laws Employment problems
• Regulatory proceedings
• Legislative oversight inquiries
• Adverse publicity and its potential to generate further investigation
• Disbarment proceedings"

With legal writers discussing the challenges of parallel proceedings, the Department of Justice employing manuals on the strategy, defense attorneys promoting their prowess in such situations, and the Supreme Court affirming the legitimacy of a defendant facing two tribunals, it would appear that no man other than Defendant Nifong has an absolute right to defend himself in one arena at a time. Certainly there are instances when facing two tribunals could constitute a violation of due process, most notably when a criminal defendant under indictment risks self incrimination. There does not, however, appear to be a strict prohibition against simply facing two tribunals, let alone a discipline hearing and a judicial inquiry, outside of Durham County.