Cline decision offers clarity on state DA ouster law

What it takes to eject a district attorney from office got a little clearer when the North Carolina Court of Appeals upheld the removal of former Durham County DA Tracey Cline on Oct. 1. It’s the second time the state’s law on removing a DA has ever been successfully applied.

A Durham County trial court had found that Cline had made false statements about Senior Resident Superior Court Judge Orlando F. Hudson Jr. that brought the District Attorney’s Office “into disrepute” and necessitated her ouster under state law. Cline had accused Hudson of, among other things, misconduct that “encompasses conduct involving moral turpitude, dishonesty and corruption” and “kidnapping the rights of victims and their families, holding these rights for hostage until the prosecutor plays the game.” Cline was removed from office in an order filed March 2, 2012.

The state law had only been successfully used once before, in 1995, when New Hanover County District Attorney Jerry Spivey was removed from office for using racial slurs toward a black patron at a bar. Cline was challenging the court’s ruling on several grounds, including that the process was unfair, that the law was unconstitutional, and that her comments were protected free speech.

Cline’s first two challenges related to the brisk pace the state law demands. The statute requires that a hearing be held within 30 days after a district attorney receives an order of suspension. Cline had asked the trial court to continue the hearing an extra month beyond that window, citing illness and an inability to obtain legal counsel. Durham County Superior Court Judge Robert H. Hobgood denied that request and, citing the compressed timeframe, also ruled that Cline did not have a right to conduct discovery for the hearing.

The Court of Appeals upheld both rulings, and found that the 30-day requirement did not deprive Cline of her right to a fair hearing because Hobgood limited the admissible evidence to “statements made by Tracey Cline in written court filings and in open court,” in the cases cited in the affidavit against her.

“As such, Cline knew precisely what evidence could be brought against her, and should have been able to prepare a defense accordingly. Cline cannot show prejudice as a result of the trial court’s actions,” Judge Sanford L. Steelman Jr. wrote for a unanimous court.

Cline had also argued that Hobgood had not clearly defined what party had the burden of persuasion in her removal hearing, but the appeals court ruled that Hobgood had made it clear that the burden rested with the parties who brought the complaint—in Cline’s case, Durham attorney Kerstin Walker Sutton, who filed the affidavit charging Cline with grounds for suspension or removal. The appeals court said it was clear that the trial court had required “clear, cogent and convincing evidence” of the charges that led to Cline’s removal.

Further, Cline’s statements about Hudson were made with actual malice and thus were not protected by the First Amendment, the court said, depriving her of a number of her free speech arguments. Although statements made in a judicial proceeding are immune from civil actions for defamation even when made with malice, the court said that immunity did not extend so far as to cover disciplinary proceedings.

The appeals court also tersely brushed away Cline’s argument that the removal law itself was unconstitutionally vague. The court held that the law’s provision for removal of a district attorney for “conduct prejudicial to the administration of justice which brings the office into disrepute” was “no more nebulous or less objective than the reasonable and prudent man test which has been a part of our negligence law for centuries.”

Cline, who was elected to the office in 2008 after the disbarment of former Durham DA Mike Nifong, still awaits a disciplinary hearing before the state bar. In September of 2012, representing herself, she filed a bizarrely written brief alleging libel against the Raleigh News & Observer for its coverage of her travails. That case is still ongoing.

James R. Van Camp and Patrick M. Mincey of Van Camp, Meacham & Newman in Pinehurst represented Cline. Sutton, along with Burton Craige and Narendra Ghosh of Patterson Harkavy in Raleigh represented the appellees.

The 27-page decision is In re Cline (Lawyers Weekly No. 13-07-0947). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan