GREENSBORO, N.C. (WGHP) – One of two Democrats and the only woman on the North Carolina Supreme Court, Associate Justice Anita Earls, has filed a federal lawsuit against the Judicial Standards Commission, complaining that the commission has conducted investigations of her public comments that are in violation of her rights to free speech.
The suit, filed in the U.S. District Court for the Middle District of North Carolina in Greensboro, claims the commission, made up of political appointees, is “continuing to investigate and potentially punishing her for exercising her First Amendment rights in speaking about the lack of diversity in the state judiciary,” a release about the lawsuit says.
The suit names the commission’s chair, NC Court of Appeals Judge Chris Dillon, and Court of Appeals Judge Jeffery K. Carpenter, its vice chair, and each member: Judge Jeffery B. Foster, Judge Dawn Layton, Judge James H. Faison III, District Judge Teresa Vincent of Greensboro, Michael Crowell, attorney Michael T. Grace of Winston-Salem, Allison Mullins of Greensboro, attorney Lonnie M. Player, attorney John M. Check, attorney Talece Y. Hunter, attorney Donald L. Porter and attorney Ronald L. Smith.
Earls claims that the commission violated her rights under both the First and 14th Amendments with months-long investigations about public comments she made about the judicial system, its lack of diversity and her perceptions of its bias against women and people of color.
The 29-page complaint, filed on her behalf by Womble Bond Dickinson in Raleigh, seeks a declaratory judgment and an injunction barring further investigation about these matters by the commission. She also asks the court to declare these actions unconstitutional. She also wants her legal expenses to be paid by the commission.
The complaint itself presents only one side of the story.
In response to a query for comment from WGHP, spokesperson Graham Wilson said, “The North Carolina Judicial Standards Commission is a non-partisan investigative body comprised of members appointed by the Chief Justice, Governor, General Assembly, and State Bar Council.
“The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”
Earls’ suit claims that she has “been subjected to a series of months-long intrusive investigations, initiated by one or more anonymous informers, concerning her comments regarding operation of the North Carolina judicial system … including those concerning diversity in the North Carolina judicial system.”
Earls’ suit cites a most recent interview with a legal publication, to which the commission responded by sending a letter to her on Aug. 15. That letter said, the suit states, “the Commission indicated its intent to investigate and potentially punish Justice Earls” for discussing “the North Carolina Supreme Court’s recent record on issues relating to diversity.”
The suit says the interview was “prompted by a published study of the race and gender of advocates who argue before the Court.”
She talked about the NC Supreme Court’s decision to disband the Commission on Fairness and Equity, a lack of judicial clerks from racial minority groups, examples of implicit bias and the end of racial equity and implicit bias training in the courts.
The commission’s letter said her comments possibly violated a provision of the code of judicial conduct that requires judges to act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” the release said.
The article that is core to the lawsuit was published May 17 in the state bar association’s “North Carolina Lawyer” and written by Solicitor General Ryan Park and two co-authors. The title was “Diversity and the North Carolina Supreme Court: A Look at the Advocates.” It was based on a 2-year study that found that more than 90% of those who argued in state courts were white and more than 70% were male.
In a follow-up interview in June with the online publication Law360, Earls talked about being a Black female Democrat in a world heavily influenced by white male Republicans, the suit said. She cited Chief Justice Paul Newby’s refusal to appoint new members to the Commission on Fairness and Equity, which the court had created in 2020.
In its letter to Earls, the commission said her comments “appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making,” the lawsuit said.
The suit says that, in March, the commission had issued a similar notice to Earls about remarks she made in public forums, “indicating that ‘a written complaint [had been] filed with the Commission’ and that it was initiating a formal investigation … concerning comments made by Justice Earls regarding ‘matters being currently deliberated in conference by the Supreme Court’ and discussed by her at ‘two public events,’ and subsequently in a media inquiry.”
Her complaint cites the time and expense of having an attorney address the complaints and the distraction from her role on the NC Supreme Court.
“The First Amendment provides me and every American the right to free speech and to bring to light imperfections and unfairness in our political and judicial systems,” Earls said in the release. “I believe that public confidence in the judiciary is best promoted by honestly looking at the facts, not by sweeping the truth under the rug or silencing dissenters.”
The release noted that Newby, who heads a Supreme Court now dominated by Republicans, 7-2, and Republicans in the General Assembly have made changes in the makeup of the commission. The governor appoints only two members, with Newby appointing six from sitting judges, two by the state bar and one each by the president pro tempore of the Senate and the speaker of the House.