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IN RE: BRASWELL


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IN THE SUPREME COURT OF NORTH CAROLINA

No. 556A03

FILED: 13 AUGUST 2004

IN RE: INQUIRY CONCERNING A JUDGE, NO. 278, JERRY BRASWELL,
Respondent

This matter is before the Supreme Court pursuant to
N.C.G.S. § 7A-376 upon a recommendation by the Judicial Standards
Commission entered 11 September 2003 that respondent Jerry
Braswell, a judge of the General Court of Justice, Superior Court
Division, Judicial District Eight B of the State of North
Carolina, be censured for conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute based upon a violation of Cannons 2A and 3C(1) of the
North Carolina Judicial Code of Conduct. Considered in the
Supreme Court 17 February 2004.
William N. Farrell, Jr., Special Counsel, for the
Judicial Standards Commission.

The Honorable Jerry Braswell, pro se.

ORDER OF CENSURE

The Judicial Standards Commission (Commission) notified
Judge Jerry Braswell (respondent) on 11 March 2002 that it had
ordered a preliminary investigation to determine whether formal
proceedings under Commission Rule 9 should be instituted against
him. The subject matter of the investigation included
allegations that respondent presided over a hearing in the case
of R. Walt Willingham and Nathaniel Willingham v. Interbay
Funding, L.L.C. and David Craig as substitute trustee
on 22
January 2002 in Onslow County when the plaintiff in that case had
an unrelated lawsuit pending against Judge Braswell. On 29 April 2003, special counsel for the Commission
filed a complaint alleging respondent “engaged in conduct
inappropriate to his judicial office by failing to recuse
himself, both initially and after a motion for recusal in open
court, from presiding over a hearing . . . while a party or
attorney . . . was a party in a civil lawsuit that had not been
dismissed against the respondent.” The complaint filed by the
special counsel for the Commission further alleged that
respondent’s actions “constitute[d] willful misconduct in office
and conduct prejudicial to the administration of justice that
brings the judicial office into disrepute and are in violation of
Canons 2A and 3C(1) of the North Carolina Code of Judicial
Conduct and the respondent’s oath of office.”
In his response to the complaint filed 30 May 2003,
respondent answered, inter alia, “[t]hat at no time, during
either the chamber discussions or the court hearing, did the
Respondent believe that a conflict of interest existed, thereby
requiring his recusal.”
On 1 July 2003 the Commission served respondent with a
notice of formal hearing concerning the charges alleged. The
Commission conducted the hearing on 14 August 2003 at which time
special counsel for the Commission presented evidence supporting
the allegations in the complaint. In its recommendation to this
Court dated 11 September 2003 the Commission found, inter alia,
the following: “The matter of R. Walt Willingham and Nathaniel
Willingham v. Interbay Funding, L.L.C. and David Craig, as
substitute trustee
, . . . was set for hearing on January 22, 2002before the respondent. At the same time, the matter of Nathaniel
Willingham v. Jerry Braswell
. . . was still pending and had not
been concluded.”
The Commission further found “Nathaniel Willingham made
an informal motion in chambers and thereafter a formal motion on
the record for the respondent to disqualify himself in the case
of R. Walt Willingham and Nathaniel Willingham v. Interbay
Funding, L.L.C. and David Craig, as substitute trustee
, . . .
based on Nathaniel Jerome Willingham’s and respondent’s
adversarial relationships.” Judge Braswell denied Willingham’s
motions for disqualification and immediately thereafter presided
over the hearing on 22 January 2002 in the case of R. Walt
Willingham and Nathaniel Willingham v. Interbay Funding, L.L.C.
and David Craig, as substitute trustee
.
Based on its findings of fact the Commission concluded
on the basis of the clear and convincing evidence presented at
the hearing that respondent’s conduct constituted:
a. conduct in violation of Cannons 2A and
3C(1) of the North Carolina Code of
Judicial Conduct;

b. conduct prejudicial to the
administration of justice that brings
the judicial office into disrepute.

Based on the foregoing findings of fact and conclusions of law
the Commission recommended that this Court censure the
respondent. See N.C.G.S. §§ 7A-376 and 7A-377 (2003).
In reviewing the Commission’s recommendations pursuant
to N.C.G.S. §§ 7A-376 and 7A-377, this Court acts as a court of
original jurisdiction, rather than in its usual capacity as anappellate court. See In re Peoples, 296 N.C. 109, 147, 250
S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d
297 (1979). “In reviewing the recommendations of the Commission,
the recommendations are not binding upon this Court. We consider
the evidence on both sides and then exercise independent judgment
as to whether to censure, to remove, or to decline to do either.”
In re Inquiry Concerning a Judge (Brown), 356 N.C. 278, 284, 570
S.E.2d 102, 105 (2002).
The quantum of proof in proceedings before the
Commission is proof by clear and convincing evidence. In re
Nowell
, 293 N.C. 235, 247, 237 S.E.2d 246, 254 (1977). Such
proceedings are not meant “to punish the individual but to
maintain the honor and dignity of the judiciary and the proper
administration of justice.” Nowell, 293 N.C at 241, 237 S.E.2d
at 250. After thoroughly examining the evidence presented to the
Commission, we conclude the Commission’s findings of fact are
supported by clear and convincing evidence and adopt them as our
own. See In re Harrell, 331 N.C. 105, 110, 414 S.E.2d 36, 38
(1992).
In the case at bar, the Commission found that Judge
Braswell improperly failed to recuse himself in the matter of R.
Walt Willingham and Nathaniel Willingham v. Interbay Funding,
L.L.C. and David Craig, as substitute trustee
. “'[T]he burden is
upon the party moving for disqualification to demonstrate
objectively that grounds for disqualification actually exist.
Such a showing must consist of substantial evidence that there
exists such a personal bias, prejudice or interest on the part ofthe judge that he would be unable to rule impartially.’” State
v. Fie
, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987). “Thus,
the standard is whether ‘grounds for disqualification actually
exist.’” Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880
(2003) (quoting Scott, 343 N.C. at 325, 471 S.E.2d at 612). We
conclude that the pending case against Judge Braswell created
grounds for disqualification because Judge Braswell’s
“impartiality [could] reasonably be questioned.” Code of
Judicial Conduct Canon 3C(1), 2004 N.C. R. Ct. 308.
In light of the foregoing, we conclude that
respondent’s actions constitute violations of Cannons 2A and
3C(1) of the North Carolina Code of Judicial Conduct and thus a
violation of N.C.G.S. § 7A-376 (conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute). Therefore, pursuant to N.C.G.S. §§ 7A-376 and 7A-377
and Rule 3 of the Rules for Supreme Court Review of
Recommendations of the Judicial Standards Commission, it is
ordered that respondent, Jerry Braswell, be and he is hereby,
censured.
By order of the Court in Conference, this 12th day of
August 2004.
s/Brady, J.
Brady, J.
For the Court.

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