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Justice is blind, but clearly not mute

The whole point of a court of appeal is to disabuse trial judges who’ve somehow misapplied the law, and on occasion exasperated appellate judges have been known to issue their rebukes in particularly pointed language. But an opinion this month by the North Carolina Court of Appeals brought something Sidebar doesn’t recall having ever seen before.

In Chavez v. Carmichael, the appeals court ruled that Mecklenburg County Superior Court Judge Yvonne Mims-Evans lacked the authority to grant the habeas corpus petitions of two men who were arrested by the local sheriff’s office and detained pursuant to a written agreement with Immigration and Customs Enforcement. (See our story.)

The court’s reasoning for overturning the ruling seems sensible enough, but the tail end of the opinion contained quite the stinger—the panel very publicly announced that a copy of its opinion would be “delivered to the Judicial Standards Commission and to the Disciplinary Hearing Commission of the North Carolina State Bar.”

Judge John Tyson wrote the opinion, joined by Judges Richard Dietz and Phil Berger Jr. (For what it’s worth, an attorney for the men seeking habeas told Lawyers Weekly that they would ask the state’s Supreme Court to review the ruling.)

It’s surely not unheard of for appellate judges to bring something to the JSC’s attention, but the novelty here is in how the judges chose to publicly drag Mims-Evans in the body of their opinion rather than quietly alert the JSC through other channels. The implication is clearly that Mims-Evans’ ruling wasn’t simply in error, but was so egregious that someone ought to discipline her over it.

Interestingly, although the Supreme Court now metes out judicial discipline, for many years the JSC issued disciplines itself, and would explain in each order how it learned of the misconduct. Sidebar couldn’t find any instances where a referral came from the appellate courts (although any referral that didn’t lead to discipline would remain confidential).

The JSC received 357 complaints against judges in 2017, per its latest annual report. Of those, just five came from judges and court personnel, covering the entirety of the state’s judiciary. It’s also quite rare for judges to be disciplined for making an error of law. The JSC does have a category for “abuse of power,” although that’s been described to Sidebar as the “do you know who I am?” offense. (As in, judges should most definitely not say that to try to get out of a speeding ticket.)

It’s also interesting that the opinion mentions that a copy would be forwarded to the state bar as well. The Supreme Court ruled in 2016 that the bar has no authority to discipline sitting judges for their conduct as a judge. Surely the judges must have been aware of the correct application of the law on this matter.

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