Elected Durham County D.A. Tracey Cline — Former Mike Nifong Deputy — Removed from Office for Accusations Against Judge

This happened last month, but I just learned of the case because the trial court decision was just posted on Westlaw; Cline is appealing the removal. The decision is here; a newspaper article on the subject is here; the statute authorizing the removal, N.C. Gen. Stats. § 7A-66(6), provides that a D.A. may be removed by a court for “[c]onduct prejudicial to the administration of justice which brings the office into disrepute.” Here are some passages from the decision:

22. The statements of Tracey E. Cline, verbal and written, as set forth in this Order in the findings of fact paragraph numbers 19: “misconduct … involving moral turpitude, dishonesty and corruption,” paragraph 24: “kidnapping the rights of victims and their families,” paragraph 28: “intentional malicious conduct,” paragraph 39: “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct,” and paragraph 40: “the root of this contempt to be conceived in the womb of justice. a judge, … acknowledge that your hands are covered with the blood of justice, and be ashamed” are not protected by any guarantees of free speech under the First Amendment, nor did Tracey E Cline possess a qualified immunity to make those untruthful statements with reckless disregard for the truth. This false, malicious, direct attack on Judge Orlando F. Hudson, Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publically, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record. These specific statements were made with actual malice and with reckless disregard for the truth.

23. The statements of Tracey E. Cline, verbal and written, as set forth in the findings of fact paragraphs 19, 24, 28, 39 and 40 in this Order were made with actual malice, for which she has no qualified immunity and which are not protected speech under the First Amendment, constitute conduct by her that is prejudicial to the administration of justice which brings the office of the Durham County District Attorney into disrepute as set forth in N.C. Gen. Stat. § 7A-66(6).

24. Tracey E. Cline has lost the confidence of the attorneys and the public necessary to continue as an effective District Attorney for Durham County. Her statements in findings of fact paragraphs 19, 24, 28, 39 and 40 of this Order, when viewed with objective reasonableness, confirm a lack of sound judgment on her part, and a total failure on her part to give the Judicial Standards Commission time to consider her complaints. As a licensed attorney, she knew that she could seek remedies in the Judicial Standards Commission and the appellate courts. In fact, she has a complaint pending before the Judicial Standards Commission and a case on appeal with respect to the rulings by Judge Hudson. By recklessly making blatantly false allegations against Judge Hudson in the public record, totally lacking in factual support, attacking his morality, honesty and asserting that he is corrupt, Tracey E. Cline has crossed the line of protected speech under the First Amendment.

25. Both Cline and Judge Hudson are public employees. Both are elected by the citizens of Durham County to constitutional offices. The speech involved in this case was on a matter of public concern, notwithstanding the testimony of Durham attorney Bill Cotter that it sounded like a spat or dispute between two people that might be best settled by the North Carolina State Bar. The content, form, and context of Ms. Cline’s speech related to her analysis of the job performance of Judge Hudson. Since this is a matter of public concern, the Court must apply a balancing test as set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) as quoted in Corum v. UNC Board of Governors, 330 NC 761, 775 (1992). A government employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. A significant factor to consider is whether the speech impairs and impedes the speaker’s performance of her duties and interferes with the regular operation of the office of the District Attorney in the Superior Courts of Durham County. Unquestionably, the statements of Tracey Cline in findings of facts paragraphs 19, 24, 28, 39 and 40 of this Order has impeded the efficient flow of work in the Superior Courts of Durham County. The falsity of the statements and the reckless manner in which they were made without regard to their truth afford no constitutional free speech protection to Tracey Cline for their utterance.

26. Based on the Findings of Fact established by clear, cogent and convincing evidence in paragraphs 19, 24, 28, 39 and 40 and the Conclusions of law in this Order, grounds exist for removal of Tracey Cline from the office of Durham County District Attorney pursuant to N.C. Gen. Stat. § 7A-66(6).

I can’t speak to the merits of the case, but I thought it was worth noting, partly because it comes on the heels of the ouster of D.A. Nifong — Cline was the first D.A. elected following Nifong’s ouster, and had worked for Nifong — and partly because it’s pretty unusual for elected officials to be removed from office by judges for criticism of other judges. I’d love to hear from people who know more about this case.

UPDATE: Prof K.C. Johnson (Durham-in-Wonderland) has been following this matter closely, and has many posts on the subject.