NC Senate Democrats Move on Nifong, Hudson

Three North Carolina State Senate Democrats have initiated legislation that would provide a procedure for the North Carolina State Bar to act on the §7A-66 affidavit filed in February. The affidavit seeking the removal of Durham County District Attorney Mike Nifong from office was stalled indefinitely by Durham County Senior Resident Superior Court Judge Orlando Hudson despite a statutory mandate requiring him to act within thirty days of the filing. The proposed legislation would remedy Hudson's delay by providing an immediate, although temporary, avenue for the protection of the public from a rogue District Attorney who is supported by a Judge willing to ignore the letter of the statute that was designed specifically to offer that protection.

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State Senator Daniel G. Clodfelter (D-Mecklenburg) sponsored the new bill which was filed yesterday. If enacted, the bill gives the North Carolina State Bar, the Governor, and the Attorney General a role in the suspension and replacement of a rogue District Attorney. Co-sponsored by Senate Majority Leader Tony Rand (D-Bladen, Cumberland) and Senator Charles W. Albertson (D-Duplin, Lenoir, Sampson), the bill, short titled “Governor May Suspend DA for Misconduct,” is proposed to take effect on July 1, 2007 which is coincidently, or not, three weeks after disgraced Durham County District Attorney Mike Nifong is scheduled to appear before the State Bar on charges of misconduct that include making extra-judicial statements, withholding evidence, and lying to the Court and the State Bar.

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The newest Nifong Bill outlines a procedure for the North Carolina State Bar to request an immediate suspension of a District Attorney in the event of the filing of a §7A-66 affidavit if it finds the “necessity for prompt action exists.” As outlined by the Bill, the Governor may then move to suspend the District Attorney whose replacement would be chosen by the Attorney General from among the attorneys in his Special Prosecution Division.

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As filed, the Bill reads :

A BILL TO BE ENTITLED

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AN ACT to provide that the governor may suspend a district attorney in certain circumstances when a formal complaint alleging misconduct of the district attorney is filed with the North Carolina State Bar.

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The General Assembly of North Carolina enacts:

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SECTION 1. Article 9 of Chapter 7A of the General Statutes is amended by adding a new section to read:

"§ 7A-66A. Suspension of district attorney by Governor.
(a) The Governor may suspend a district attorney as provided by this section. Upon application by the North Carolina State Bar, the Governor may suspend a district attorney from office if: (i) a complaint against the district attorney is filed with the North Carolina State Bar alleging a ground of misconduct under G.S. 7A-66; (ii) the Council as defined in G.S. 84-17, after providing reasonable notice and a hearing to the district attorney on the issue, determines that a disciplinary proceeding regarding the matter of conduct is warranted, that the district attorney is incapable of fulfilling the duties of office during that time and that the necessity for prompt action exists while the disciplinary proceeding is conducted, and makes public that a disciplinary proceeding is pending against the district attorney; and (iii) the Governor finds that the suspension of the district attorney is required for the protection of the public interest. If the Governor determines that the district attorney should be suspended, the Governor shall report that finding and the reasons for that finding to the district attorney, the North Carolina State Bar, and to the public.
(b) Upon suspension of a district attorney under this section, the Governor shall request the Attorney General to assign a special prosecutor to assume the responsibilities of the district attorney pursuant to G.S. 114-11.6.
(c) The district attorney may resume office if no disciplinary action is taken by the North Carolina State Bar against the district attorney pursuant to G.S. 84-28 within 90 days of the suspension and if no procedure for suspension or removal of the district attorney pursuant to G.S. 7A-66 is begun."

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SECTION 2. G.S. 114-11.6 reads as rewritten:
"§ 114-11.6. Division established; duties.
(a) There is hereby established in the office of the Attorney General of North Carolina, a Special Prosecution Division. The attorneys assigned to this Division shall be available to prosecute or assist in the prosecution of criminal cases when requested to do so by a district attorney and the Attorney General approves. In addition, these attorneys assigned to this Division shall serve as legal advisers to the State Bureau of Investigation and the Police Information Network and perform any other duties assigned to them by the Attorney General.
(b) Upon request by the Governor under G.S. 7A-66A, the Attorney General shall assign an attorney from this Division to assume the responsibilities of a district attorney."

SECTION 3. This act becomes effective July 1, 2007.

As a first step to providing the public immediate protection from a rogue District Attorney supported by a friendly Judge willing to ignore the statutory mandates of §7A-66, it would appear that the proposed legislation is both necessary and welcome. As currently framed, however, the Bill leaves the decision to permanently remove a rogue District Attorney to the same Senior Resident Superior Court Judge who failed to act in the first place. As such, it would appear the Bill needs more teeth if it is to serve as a lasting remedy to protect the public.