A North Carolina Court of Appeals judge has been censured after an investigation determined that Judge Hunter Murphy’s executive assistant created a “toxic work environment” for female law clerks who worked for him.
In March 2018, the Judicial Standards Commission filed a statement of charges against Murphy, who took office in January 2017. Among other things, the JSC alleged that Murphy had “hired his close, personal friend from high school,” Ben Tuite, to serve as both his executive assistant and a law clerk. The JSC’s investigation found that Tuite frequently engaged in profane and angry outbursts in the workplace, displayed a pattern of dishonesty and failure to diligently discharge his duties, and frequently made lewd and sexually inappropriate comments to Murphy’s female law clerks.
The investigation found that Murphy failed to address this misconduct after it came to his attention, and by November 2017 another judge raised concerns with the chief judge. Murphy subsequently “lacked candor and downplayed, minimized, and mischaracterized” Tuite’s actions to both the JSC and the Administrative Office of the Courts’ HR department. Even after the clerks reiterated their complaints in a face-to-face meeting, Murphy told the JSC in an email that “there was not even a whiff of a complaint of a sexual or sexual harassment nature” against Tuite.
Even as the investigation remained ongoing, Murphy repeatedly reassured Tuite that his job was secure, including in response to a text in which Tuite referred to the judge as “Dude.” Tuite ultimately resigned in January 2018, after both of Murphy’s other law clerks resigned early.
The JSC unanimously recommended that Murphy be censured. Murphy did not consent to the censure, and the case went before the Supreme Court, which reviews all recommendations from the JSC independently. Murphy challenged—at quite some length in his brief—several of the JSC’s factual findings and conclusions of law and argued that the JSC’s prosecution of the case exceeded its statutory authority and violated his due process rights to a fundamentally fair investigatory process.
But in a unanimous opinion filed on Dec. 18, the Supreme Court ruled that the findings and conclusions were supported by clear and convincing evidence and adopted them as the court’s own, saying that “there was no reason for the Commission panel to believe that the clerks’ testimony was anything less than truthful.” The court also rejected arguments that a judge’s due process rights are violated because of the JSC’s dual investigative and judicial functions, and agreed that a censure was the appropriate sanction under the circumstances.
“The Court recognizes that [Murphy] was not immediately made aware of the entirety of Mr. Tuite’s misconduct in chambers,” the court’s order reads. “The incidents for which [Murphy] was present, however, were sufficient to warrant corrective action with regard to Mr. Tuite. Instead, [Murphy] continued to turn a blind eye. This shortcoming is not, as [Murphy] contends, simply a matter of managerial style. Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [his] law clerks and the impact on the law clerks of such unprofessional behavior.”
Lawyers Weekly is declining to use the names of the law clerks who reported the sexual harassment, although they were named in the opinion. The court was also not shy about specifying which particular profane terms Tuite used. During one such profane outburst, Tuite apparently slammed his fist on a table hard enough to activate a panic alarm, which notified the court’s security personnel.
John Wester, Mark Merritt, Matt Sawchak, and Lexi Fleming of Robinson, Bradshaw & Hinson represented the Judicial Standards Commission before the Supreme Court. Wester said that he hoped the opinion would encourage the highest standards of conduct in the state’s judicial chambers.
“That the Supreme Court unanimously affirmed the commission’s review of this record carries a special significance when you’re dealing with such a sensitive subject matter,” Wester said. “The court has done what it needed to do in order to protect the standard that we must have so that our citizens can have confidence in our judiciary. This goes to the nervous system of our jurisprudence.”
Bob Orr and Anita Hunt represented Murphy. Orr, a former Supreme Court justice, said the decision was one of the most disappointing he had read in his career. Orr said that while it was fine for the JSC to have both an investigative and a judicial function, Murphy argued that it was inappropriate for the JSC to have both an investigative and a prosecutorial function, and he did not believe that the court squarely addressed this argument.
“There needs to be clarity on whether the judicial standards process is a prosecution or a neutral investigation,” Orr said. “I think the statute makes clear that it’s supposed to be a neutral investigation in which the lawyer or staff for the Judicial Standards Commission provides both sides of the evidence. I think it’s fundamentally dangerous for the prosecution or the lawyer to be able to, from day one, come up with the prosecutorial narrative, and that the only one being driven by Judicial Standards.”
Orr also contended that the court applied the wrong standard of review in the case and should exercise its original jurisdiction in cases arising from the JSC and conduct its own independent review of the evidence rather than simply reviewing the JSC’s findings to see if there’s evidence to support them.
The case was unusual in several respects, and unprecedented in their combination. In most cases, judges ultimately consent to a sanction recommended by the JSC. (Although as it happened, a divided court handed down an opinion in another contested judicial discipline matter the same day.) In recent years some judges have contested the severity of their discipline or raised procedural arguments, but this is the first time since 2002 that a judge has challenged specific factual findings made by the JSC.
In that 2002 case, the JSC recommended the removal of a judge who was accused of sexual harassment and denied the allegations. Even though the JSC presented testimony from multiple witnesses, the Supreme Court found the evidence to be “in equipoise” (a fancy way of saying “he said, she said” and throwing up one’s hands) and dismissed the case.
It’s also rare for an appellate judge to be disciplined. The JSC had the authority to issue public reprimands to judges from 2007 up until 2013, when lawmakers took away that authority. In that time, it publicly reprimanded one Court of Appeals judge, in 2007 due to a conviction for drunk driving. But this appears to be the first time that the Supreme Court has ever censured or publicly reprimanded a Court of Appeals judge since the Court of Appeals was created in 1967.
The 27-page decision is In re Murphy (Lawyers Weekly No. 010-XXX-20). The full text of the opinion is available online at nclawyersweekly.com.
Follow David Donovan on Twitter @NCLWDonovan