Bill To Allow Unqualified Judges and DAs To Remain In Office Passes NC Senate

In February, North Carolina State Senate Majority Leader Tony Rand (D-Bladen/Cumberland) introduced Senate Bill 117 - “Removal of Unqualified Judges and DAs.” This bill was a response to the difficulties created by the refusal of former Judge James Ethridge to resign after being disbarred for fraudulently taking an ailing, elderly client's life savings and home. Ethridge, who was represented before the NC State Bar by Defendant Nifong attorney David Freedman after the News & Observer's Mandy Locke exposure of his misconduct led to an investigation, delayed his resignation until January despite losing his law license in October.
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In its original form, the bill sought to provide an avenue of immediate relief by setting forth a procedure for the prompt removal of judges and district attorneys rendered unqualified by their disbarment. This week, the NC Senate unanimously approved a revised version of the bill that appears to extend the time that disbarred judges or district attorneys may retain their positions. In doing so, the new bill seems to have defeated its own purpose, as the time allowed may stretch well beyond the four months that Ethridge delayed his resignation

At the time the original bill was filed, we noted that it had implications for Durham County District Attorney Mike Nifong, whose anticipated disbarment appears likely to offer the first opportunity for the proposed law to be put to use.

“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.”

When originally introduced on February 12, the bill, co-sponsored by State Senator Eddie Goodall (R-Union/Mecklenburg), read as follows:

§ 7A-410. Vacancy exists on disbarment.

When a judge of the district court, judge of the superior court, judge of the Court of Appeals, justice of the Supreme Court, or a district attorney is no longer authorized to practice law in the courts of this State, the Governor may declare the office vacant. Prior to making such declaration, the Governor shall notify the justice, judge, or district attorney at least 10 days in advance of taking such action and shall afford the justice or judge the opportunity to be heard on the matter.

"§ 7A-410.1. Suspension of salary.

When a justice, judge, or district attorney has been disbarred or suspended from the practice of law under G.S. 84-28 but has not yet been removed from office, the salary of the justice, judge, or district attorney is suspended immediately. If the order of disbarment or suspension is reversed on appeal, the salary shall be paid retroactively from the date the salary was suspended."

After passing through the Senate’s Civil Judiciary Committee and picking up three additional co-sponsors (Bob Atwater (D-Chatham, Durham, Lee), William Purcell (D-Anson, Richmond, Scotland, Stanly), and John Snow (D-Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain, Transylvania), the watered down bill now reads:

§ 7A-410. Vacancy exists on disbarment.

When a judge of the district court, judge of the superior court, judge of the Court of Appeals, justice of the Supreme Court, or a district attorney is no longer authorized to practice law in the courts of this State, the Governor shall declare the office vacant. Prior to making such declaration, the Governor shall notify the justice, judge, or district attorney at least 10 days in advance of taking such action and shall afford the justice or judge the opportunity to be heard on the matter. For purposes of this Article, the term 'no longer authorized to practice law' means that the person has been disbarred or suspended and all appeals under G.S. 84-28 have been exhausted.

"§ 7A-410.1. Suspension of salary.

When a justice, judge, or district attorney has been disbarred or suspended from the practice of law under G.S. 84-28 but the office has not been declared vacant under G.S. 7A-410, the salary of the justice, judge, or district attorney is suspended immediately. If the order of disbarment or suspension is reversed on appeal, the salary shall be paid retroactively from the date the salary was suspended."

The revised bill continues to provide for the immediate suspension of salary for a disbarred judge or district attorney. However, allowing an unqualified judge or district attorney to remain in office until all appeals are exhausted, some of which may be filed up to one year following disbarment and others which have no clear time limitation other than “reasonable,” renders the bill useless as to its initial intent. Effectively, the revised bill will now do little, if anything, to provide for timely removal and replacement of officials who cannot lawfully function in their elected roles.

Not surprisingly, State Senator Bob Atwater (D-Chatham, Durham, Lee), conveniently identified by the N&O as only representing Chatham County and not Durham, was pleased with the alteration that would conceivably allow a disbarred Mike Nifong to remain district attorney for his full term.

“Sen. Bob Atwater, a Chatham County Democrat, said one reason he liked the bill approved Wednesday was that it allows the lawyer to appeal his or her suspension or disbarment.” N&O

If as expected, Defendant Nifong is disbarred in June, and if the bill becomes law as it reads now, and if he delays the start of his appeal process for as long as the law allows, the time until his appeals have finally been exhausted could extend far beyond what remains of his four year term. Should that come to pass, and if Judge Orlando Hudson invents additional creative ways to delay acting on the statutory mandates of NCGS 7A-66, Durham County could be left without a functional district attorney from June of 2006 until January of 2010.