{ "id": 8522447, "name": "IN THE MATTER OF MARK MITCHELL EZZELL, MAGISTRATE", "name_abbreviation": "In re Ezzell", "decision_date": "1994-01-18", "docket_number": "No. 9318SC208", "first_page": "388", "last_page": "394", "citations": [ { "type": "official", "cite": "113 N.C. App. 388" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "429 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525467 ], "year": 1993, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0302-01" ] }, { "cite": "176 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550508 ], "year": 1970, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0361-01" ] }, { "cite": "319 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682629, 4682407, 4687145, 4680570, 4687004 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0401-05", "/nc/311/0401-04", "/nc/311/0401-03", "/nc/311/0401-02", "/nc/311/0401-01" ] }, { "cite": "315 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527177 ], "year": 1984, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0320-01" ] }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "year": 1991, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] }, { "cite": "422 U.S. 490", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9528 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "505" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/us/422/0490-01" ] }, { "cite": "468 U.S. 737", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11340114 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "751" }, { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/us/468/0737-01" ] }, { "cite": "299 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "679", "parenthetical": "\"must be adversely affected\"" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522758 ], "year": 1983, "pin_cites": [ { "page": "584", "parenthetical": "\"must be adversely affected\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0581-01" ] }, { "cite": "305 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763169, 4764848, 4767347, 4762776, 4761567 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0192-05", "/nc/309/0192-02", "/nc/309/0192-04", "/nc/309/0192-03", "/nc/309/0192-01" ] }, { "cite": "300 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522987 ], "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0597-01" ] }, { "cite": "291 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "306 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567451 ], "year": 1982, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0079-01" ] }, { "cite": "368 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "322 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515756 ], "year": 1988, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0396-01" ] }, { "cite": "82 L.Ed. 493", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1937, "opinion_index": 0 }, { "cite": "302 U.S. 633", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6143233, 6143282, 6143186 ], "year": 1937, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/us/302/0633-02", "/us/302/0633-03", "/us/302/0633-01" ] }, { "cite": "8 L. Ed. 2d 398", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1962, "pin_cites": [ { "parenthetical": "quoting Ex Parte Albert Levitt, 302 U.S. 633, 634, 82 L.Ed. 493 (1937)" } ], "opinion_index": 0 }, { "cite": "370 U.S. 46", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165059 ], "year": 1962, "pin_cites": [ { "parenthetical": "quoting Ex Parte Albert Levitt, 302 U.S. 633, 634, 82 L.Ed. 493 (1937)" } ], "opinion_index": 0, "case_paths": [ "/us/370/0046-01" ] }, { "cite": "121 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "255 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570754 ], "year": 1961, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0510-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12617, "ocr_confidence": 0.764, "pagerank": { "raw": 8.451864282167661e-08, "percentile": 0.48491108941100425 }, "sha256": "016698320a0c44237759a3fd07b41737effa98919fc8fe856f299de03aff7c7e", "simhash": "1:a178b3d02c333453", "word_count": 2105 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge COZORT concurs in the result." ], "parties": [ "IN THE MATTER OF MARK MITCHELL EZZELL, MAGISTRATE" ], "opinions": [ { "text": "GREENE, Judge.\nMark Mitchell Ezzell (Ezzell) appeals from an order permanently removing him from office as Magistrate in the Eighteenth Judicial District.\nWritten charges against Ezzell were filed by Melissa K. Halloran (Halloran) on 15 September 1992 in the Office of the Clerk of Superior Court of Guilford County. Halloran alleged that Ezzell \u201c[o]n August 13, 1992, while on duty and in the discharge of his official duties as Magistrate, put his hand upon her bare ankle and pushed her pant leg up . . . [and] put his hand upon and grabbed her breast, all without her permission or consent.\u201d Upon examination of the charges, J. Bruce Morton, Chief District Court Judge for the Eighteenth Judicial District, on 21 September 1992, entered an \u201cOrder and Notice of Suspension,\u201d pursuant to N.C. Gen. Stat. \u00a7 7A-173(b) (1989), finding that \u201csuch charges, if true, constitute grounds for [Ezzell\u2019s] removal from office\u201d and suspended Ezzell \u201cwith pay, from the performance of [his] official duties as magistrate.\u201d Judge Morton further ordered that the matter \u201cbe set for public hearing before the Honorable W. Douglas Albright, Senior Resident Superior Court Judge of the Eighteenth Judicial District, on the 2nd day of October, 1992 ... at which time said Superior Court Judge will determine whether grounds for removal . . . exist.\u201d On 22 September 1992, Judge Albright wrote a letter to Horace M. Kimel, Jr., the District Attorney for the Eighteenth Judicial District, informing him of the charges against Ezzell and \u201crequesting that [his] office present the case against [Ezzell] at the hearing.\u201d The letter goes on to say that \u201c[y]our duties would be to investigate the case and interview the witness(es) in support of the charges[,] . . . question the witnesses in support of the charges and cross examine . . . Ezzell and/or his witnesses. Thereafter, you would present a final argument. I will be most grateful to you if you will accept this responsibility.\u201d\nThe matter, pursuant to N.C. Gen. Stat. \u00a7 7A-173(c), came on for hearing before Judge Albright on 2 October 1992. At the hearing, Ezzell was present and represented by counsel. Also appearing was Howard P. Neumann, Assistant District Attorney for. the Eighteenth Judicial District. Prior to the taking of any evidence, Ezzell objected \u201cto the state\u2019s being represented\u201d in the proceeding. The objection was overruled by Judge Albright. Mr. Neumann then presented evidence in support of the charges and Ezzell presented evidence in opposition to the charges. Ezzell and his witnesses were cross-examined by Mr. Neumann. Mr. Neumann also made a final argument to Judge Albright in support of the charges.\nOn 8 October 1992 Judge Albright signed an \u201cOrder of Removal\u201d decreeing that Ezzell be permanently removed from office and that his salary be terminated. Included in the order were detailed findings of fact and conclusions of law. The court found as a fact that the allegations made by Halloran were true and concluded that such conduct constituted \u201cwillful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.\u201d\nThe issues presented are whether (I) Ezzell had standing to raise the issue of the legality of the district attorney\u2019s presence in a magistrate\u2019s removal hearing, (II) the findings of fact are supported by evidence in the record; and (III) Ezzell was denied due process of law because the trial judge was not an impartial decision maker.\nI\nEzzell argues that \u201cJudge Albright\u2019s request that the District Attorney\u2019s office of the 18th Judicial District present the case against [him] was erroneous and in violation of the constitutional limits of the office of the District Attorney.\u201d In support of this argument Ezzell directs our attention to Article IV, Section 18 of the North Carolina Constitution and N.C. Gen. Stat. \u00a7 7A-173(c). Article IV, Section 18 of the North Carolina Constitution provides that the\nDistrict Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.\nN.C. Gen. Stat. \u00a7 7A-173(c) provides\n(c) If a hearing, with or without suspension, is ordered, the magistrate against whom the charges have been made shall be given immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set by the chief district judge for hearing before the senior regular resident superior court judge or a regular superior court judge holding court in the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located. The hearing shall be held in a county within the district or set of districts not less than 10 days nor more than 30 days after the magistrate has received a copy of the charges. The hearing shall be open to the public. All testimony offered shall be recorded. At the hearing the superior court judge shall receive evidence, and make findings of fact and conclusions of law. If he finds that grounds for removal exist, he shall enter an order permanently removing the magistrate from office, and terminating his salary. If he finds that no such grounds exist, he shall terminate the suspension, if any.\nN.C.G.S. \u00a7 7A-173(c) (1989).\nEzzell argues that because both the constitution and the statute are silent on the authority of the district attorney to present the case in support of the removal of a magistrate and because there are no other statutes authorizing such action by the district attorney, the district attorney acts unconstitutionally if he does appear in a Section 173(c) proceeding. This alleged unconstitutional conduct, Ezzell contends, requires a new trial.\nAlthough Ezzell\u2019s argument may have merit, we do not reach the issue he attempts to raise because he does not have standing to raise the issue. A party has the necessary standing to raise the constitutionality of a law or act only if he \u201chas sustained or is immediately in danger of sustaining a direct injury [in fact] as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.\u201d Watkins v. City of Wilson, 255 N.C. 510, 512, 121 S.E.2d 861, 862 (1961), cert. denied, 370 U.S. 46, 8 L. Ed. 2d 398 (1962) (quoting Ex Parte Albert Levitt, 302 U.S. 633, 634, 82 L.Ed. 493 (1937)); Armstrong v. Armstrong, 322 N.C. 396, 400, 368 S.E.2d 595, 597 (1988); Greene v. Town of Valdese, 306 N.C. 79, 88, 291 S.E.2d 630, 636 (1982); Murphy v. Davis, 61 N.C. App. 597, 600, 300 S.E.2d 871, 873 (must have sustained an \u201cinjury in fact\u201d), disc. rev. denied, 309 N.C. 192, 305 S.E.2d 735 (1983); In re Jackson, 60 N.C. App. 581, 584, 299 S.E.2d 677, 679 (1983) (\u201cmust be adversely affected\u201d); 16 C.J.S. Constitutional Law \u00a7 65, at 170-72 (1984). \u201cThe keystone for defining injury in fact is the requirement that it be \u2018distinct and palpable\u2019\u2014 and conversely that it not be \u2018abstract\u2019 or \u2018conjectural\u2019 or \u2018hypothetical.\u2019 \u201d Laurence H. Tribe, American Constitutional Law \u00a7 3-16, at 114 (2d ed. 1988) [hereinafter Tribe] (quoting Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 569-70 (1984)). The injury in fact \u201crequirement includes as a corollary a requirement that a litigant show that the challenged government action caused the litigant\u2019s injury.\u201d Tribe \u00a7 3-18, at 129. That is, the party who asserts standing must \u201cestablish that, in fact, the asserted injury was the consequence of the . . . [alleged unconstitutional] actions, or that prospective relief will remove the harm.\u201d Tribe \u00a7 3-18, at 129-30 (quoting Warth v. Seldin, 422 U.S. 490, 505, 45 L. Ed. 2d 343, 358 (1975)).\nEzzell, as the basis for his right to assert the alleged unconstitutional actions of the district attorney, claims that \u201cthe District Attorney\u2019s involvement brought to bear all of the resources of the State against\u201d him and that as a consequence he was prejudiced. For us to agree with Ezzell we must accept that had the trial court, under its inherent authority, see In The Matter of The Alamance County Court Facilities, 329 N.C. 84, 93-94, 405 S.E.2d 125, 129 (1991), appointed an independent counsel to present the case against Ezzell, a different result would have occurred. This would require inferences that we are not prepared to make and amount to nothing more than conjecture. The conclusion that Ezzell draws from the district attorney\u2019s involvement in the case, that he was prejudiced, does not necessarily follow.\nIn any event, were we to hold that Ezzell has standing to raise the constitutional issue and were we to hold that it was error for the district attorney to present the charges in a Section 173(c) proceeding, Ezzell would be entitled to a new trial only if he could show that a different result would have been reached had the district attorney not appeared. N.C. Gen. Stat. \u00a7 1A-1, Rule 61 (1990); Lee v. Keck, 68 N.C. App. 320, 327, 315 S.E.2d 323, 328, disc. rev. denied, 311 N.C. 401, 319 S.E.2d 271 (1984). Ezzell is not entitled to a new trial for the same reasons we have given for holding he does not have standing. He simply cannot show that a different result would probably have occurred had the district attorney not appeared in the case.\nII\nEzzell argues that the findings of fact entered by the trial judge were not supported by the evidence. We disagree. Although the evidence was in great dispute, there is competent evidence in the record to support the findings of the trial court and the findings are thus conclusive on appeal. Little v. Little, 9 N.C. App. 361, 365, 176 S.E.2d 521, 523-24 (1970).\nIII\nEzzell finally argues that because the trial judge, as the senior regular resident superior court judge, is also responsible for appointing magistrates, N.C. Gen. Stat. \u00a7 7A-171(b), there existed \u201can automatic conflict of interest,\u201d and he was therefore denied an \u201cunbiased, impartial decision maker.\u201d We disagree. A trial judge should disqualify himself or herself where he or she \u201chas a personal bias or prejudice concerning a party.\u201d Code of Judicial Conduct, Canon 3(C)(1)(a) (1993). A party claiming bias or prejudice may move for recusal and in such event has the burden of demonstrating \u201cobjectively that grounds for disqualification actually exist.\u201d State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993). In this case there was no motion in the trial court that Judge Albright recuse himself and thus there is no evidence in this record of any personal bias or prejudice. Furthermore, we do not accept that as a matter of law every Resident Regular Superior Court Judge who appoints a magistrate has a personal bias or prejudice and thus must be disqualified under Canon 3 from conducting a magistrate\u2019s removal hearing pursuant to N.C. Gen. Stat. \u00a7 7A-173(c).\nAffirmed.\nJudge WYNN concurs.\nJudge COZORT concurs in the result.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Jeffrey P. Gray, for the State.", "Wyatt Early Harris Wheeler & Hauser, by John Bryson, for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF MARK MITCHELL EZZELL, MAGISTRATE\nNo. 9318SC208\n(Filed 18 January 1994)\n1. Judges, Justices, and Magistrates \u00a7 49 (NCI4th)\u2014 magistrate\u2019s removal hearing \u2014 case presented by district attorney \u2014 legality \u2014no injury to respondent \u2014no standing to raise issue\nRespondent did not have standing to raise the issue of the legality of the district attorney\u2019s presence in a magistrate\u2019s removal hearing, since respondent could not show that he had sustained any distinct injury by the involvement of the district attorney or that, had the trial court appointed an independent counsel to present the case against him, a different result would have occurred. N.C.G.S. \u00a7 7A-173(c); N.C. Const, art. IV, \u00a7 18.\nAm Jur 2d, Judges \u00a7 2.\n2. Judges, Justices, and Magistrates \u00a7 49 (NCI4th)\u2014 removal of magistrate \u2014no automatic conflict of interest by judge conducting hearing\nThere was no merit to respondent\u2019s contention that as a matter of law every Resident Regular Superior Court Judge who appoints a magistrate has a personal bias or prejudice and thus must be disqualified under Canon 3(C)(1)(a) of the Code of Judicial Conduct from conducting a magistrate\u2019s removal hearing pursuant to N.C.G.S. \u00a7 7A-173(c).\nAm Jur 2d, Judges \u00a7 2.\nAppeal by respondent from order entered 8 October 1992 in Guilford County Superior Court by Judge W. Douglas Albright. Heard in the Court of Appeals 7 December 1993.\nAttorney General Michael F. Easley, by Assistant Attorney General Jeffrey P. Gray, for the State.\nWyatt Early Harris Wheeler & Hauser, by John Bryson, for respondent-appellant." }, "file_name": "0388-01", "first_page_order": 418, "last_page_order": 424 }