A higher power

“Respondent believes that such things occur with more judges than her alone.”

— attorney Robert Long, responding to the state attorney general’s complaint regarding Judge Brown

The N.C. Supreme Court may soon get a chance to decide what, if anything, to do about the conduct of Buncombe County District Court Judge Shirley Brown.

On the heels of an Oct. 24 hearing in Raleigh, the state Judicial Standards Commission (which weighs accusations of judicial misconduct) plans to announce this week whether it will recommend that the state’s highest court discipline the veteran judge.

At issue is the judge’s handling of four specific cases. In two child-custody cases from 2000, Brown waited more than a year before entering written orders. In a 1998 juvenile case, no written decision can be found. And in a 1996 hearing, Brown simultaneously served as both witness and judge, then failed to enter a written order resolving the matter.

Three of these cases came to light shortly before last November’s judicial election (see “Critics Take Aim at Judge Brown,” Oct. 23, 2002 Xpress), in which Brown defeated challenger Susan Wilson.

But the veil of secrecy that surrounds both juvenile-court matters and official complaints about judges’ conduct made it difficult for voters to fully assess the merits of the charges. Further muddying the waters was the fact that one of the complaints was filed by Wilson’s campaign treasurer, attorney Cecilia Johnson.

Judge and witness

After Brown was re-elected last fall, the state attorney general’s office filed its own complaint about her in February 2003, outlining the four problematic cases (at least two of which had also been cited by Johnson) and claiming that Brown had engaged in “conduct inappropriate to her judicial office.” Here are the accusations, with responses from Brown or her attorney, Robert Long:

• On April 18, 1996, Brown presided over a hearing in which she assumed several roles — testifying under oath, examining witnesses, and ruling on objections — and then failed to announce a decision or enter an order.

“It was a blatant conflict of interest,” declared Asheville attorney Jack Stewart during the Judicial Standards Commission’s Oct. 24 hearing (as reported in the Asheville Citizen-Times).

According to the attorney general’s complaint, the problem arose when Stewart — who was representing fellow attorney Haley Haynes Montgomery — asked for a hearing to challenge an order Brown had entered concerning Montgomery’s conduct in a juvenile matter. (Even though Brown had been serving as the judge in the juvenile case, Montgomery asked a different judge to authorize a psychological evaluation of her client — which Brown viewed as sidestepping the court’s authority, said the Citizen-Times.)

Brown had thought the proceedings would be informal, Long explained in his response to the complaint. But during the Judicial Standards Commission hearing in October 2003, Brown conceded, “Looking back on it, it was a stupid thing to do,” the Citizen-Times reported.

The attorney general’s complaint maintains that Brown never announced a decision or entered an order following the 1996 hearing. But Long argued that Brown had let her order regarding Montgomery’s conduct stand (which could be seen as equivalent to making a decision).

• The judge never entered an adjudication order following a May 1998 hearing.

Black Mountain resident Luci Tomlin told Xpress last fall that the lack of a written order had meant her family couldn’t appeal Brown’s finding (which had been announced in court): that Tomlin’s son-in-law had molested her granddaughter, who was 12 at the time. As a result, both the 12-year-old and her 10-year-old sister were removed from their home.

Brown, said Long, had prepared the order and put it in the clerk’s “file box,” but it later turned up missing. And last year, Brown told Xpress that she couldn’t write a replacement order because she’d destroyed her notes once the deadline for appealing the case had passed, and the courtroom audiotape had been taped over as well.

• After conducting a hearing in August 2000 in a child-custody case (St. Germain v. Grush), Brown neglected to enter a written order until October 2001.

Arden resident Michele Grush told Xpress last year that the delay had meant she and her ex had had to rely on their memories of the judge’s decision — making an already tense situation that much more difficult.

Brown conceded last year that she’d lost track of the case until Johnson wrote her a memo. “I regretfully forgot about it,” Brown told Xpress, “and dealt with it when I realized it.”

• Brown failed to decide another child-custody case (involving Cynthia Turner and her ex-husband, Rick Burris) until December 2001 — 19 months after a hearing was held.

Long wrote that this case was “the most difficult civil action the Respondent [Brown] has ever decided” because the original separation happened under “rather bizarre facts” and yet the three children in question were thriving.

“Trying to use the court system to solve a problem was a colossal mistake,” Turner told Xpress last year. Both Turner and the Burrises subsequently became Wilson supporters.

Willful misconduct?

In his complaint, Senior Deputy Attorney General James L. Coman argued that Brown’s actions had violated three canons of the N.C. Code of Judicial Conduct and constituted “willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”

Long, however, noted, “While Respondent might have wished to decide the Burris matter in a quicker manner, or not to have forgotten the St. Germain matter, Respondent believes that such things occur with more judges than her alone.”

Most complaints filed with the Judicial Standards Commission never result in a hearing. Of the 269 complaints filed in 2002, for example, only 25 were deemed to have enough merit to warrant an investigation. Eight of those were referred to formal proceedings, reported Paul Ross, the commission’s executive secretary. North Carolina has no legal structure for appealing the commission’s decisions.

Typically, said Ross, the commission has to tie up a few administrative details before making a recommendation to the Supreme Court. In this case, he explained, the recommendation could be either to censure the judge, remove her from office — or do nothing. (The governor makes judicial appointments to fill unexpired terms when necessary, Ross told Xpress.)

What the Supreme Court might do is anybody’s guess.

“I wouldn’t dare speculate,” said Ross.