Commission plans investigation into justice’s public comments about court’s record related to diversity
By Gary D. Robertson
Associated Press
RALEIGH, N.C. (AP) — A Democratic justice on North Carolina’s Republican-majority Supreme Court sued an ethics panel Tuesday to block it from investigating her public comments about state courts and colleagues, saying the probe and other recent scrutiny violate her free speech rights.
Associate Justice Anita Earls filed the federal lawsuit against the state Judicial Standards Commission, which is charged by law with investigating potential violations of the state’s judicial conduct code, and its members. She wants a judge to declare that the panel can no longer investigate her speech “on matters of public concern.”
A commission staff attorney wrote Earls two weeks ago that it planned to investigate her for a media interview in which she discussed the Supreme Court’s recent record related to diversity. The letter, which was attached to the lawsuit, said the commission had already dismissed an earlier complaint in which Earls was accused of speaking publicly about some administrative matters under consideration by the seven-member court.
The commission can issue a private caution letter to a judge, or recommend to the Supreme Court that a judge receive anything from a public reprimand to suspension or removal from office.
Earls’ lawsuit, filed in Greensboro, says the investigations have “led to a chilling of her First Amendment rights” and “interrupted her ability to do her work” as a justice, while other justices seemingly get to comment publicly about similar issues without challenge.
“Any discipline from the Commission has the potential to derail Justice Earls from seeking or being considered for any future professional opportunities, which causes her considerable stress and anxiety,” the lawsuit adds.
Earls’ unusual lawsuit, which says she’s formally waived her confidentiality for the commission cases, comes as the state’s highest court in January switched from a 4-3 Democratic seat majority to 5-2 Republican control following last November’s election results. Anyone can file a complaint with the commission. An accuser’s name isn’t made public and the commission’s activities are performed behind closed doors with some exceptions.
In an interview with Law360 released in June, Earls — the only Black woman on the court — discussed the court’s decision to end a commission looking at fairness and equity in the state court system and what she considered a lack of minority judicial clerks on the court.
“I really do think implicit bias is at play,” Earls was quoted as saying, adding that “there have been cases where I have felt very uncomfortable on the bench because I feel like my colleagues are unfairly cutting off a female advocate,” including one who was Black.
The Aug. 15 letter from commission attorney Patricia Flood said the commission was specifically reopening an investigation into a complaint dismissed earlier this year that had examined her public discussion of the court’s administrative matters in light of the print interview.
In that interview, Flood wrote, Earls appears “to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making.” That would potentially violate a section of the conduct code which requires a judge to consider themselves “at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary,” she added.
But Earls’ lawsuit pointed to a portion of the judicial code that permits judges to speak “concerning the ... legal, or governmental system, or the administration of justice.” And it cited part of the interview where Earls said she was “not suggesting that any of this is conscious, intentional, racial animus” but that “we all have implicit biases.”
Commission Executive Director Brittany Pinkham said in an emailed statement Tuesday that the commission is nonpartisan, “statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”
The 14-member commission is composed of six judges picked by the Supreme Court chief justice — two each from the Court of Appeals, Superior Court and District Court; four lawyers appointed by the North Carolina State Bar Council; and four non-attorneys, with two picked by the governor and the other two by legislative leaders. There are two more alternate members.
Commission staff can dismiss cases without having them to go to a panel of commissioners if they determine the allegations can’t be supported.
Earls, a civil rights attorney elected to the court in 2018, has become a foil to the Republican majority, which includes Chief Justice Paul Newby. She has criticized in dissenting opinions decisions by GOP colleagues to agree to reconsider rulings by the previous Democratic majority that had struck down photo voter identification and gerrymandered voting maps. Both of those reconsidered rulings were later reversed. Earls’ seat is up for reelection in 2026.
