{ "id": 2985261, "name": "IN RE: INQUIRY CONCERNING A JUDGE, NO. 278, JERRY BRASWELL, Respondent", "name_abbreviation": "In re Inquiry Concerning a Judge, No. 278, Braswell", "decision_date": "2004-08-13", "docket_number": "No. 556A03", "first_page": "721", "last_page": "724", "citations": [ { "type": "official", "cite": "358 N.C. 721" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "588 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "880", "parenthetical": "quoting Scott, 343 N.C. at 325, 471 S.E.2d at 612" } ], "opinion_index": 0 }, { "cite": "357 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491605 ], "year": 2003, "pin_cites": [ { "page": "649", "parenthetical": "quoting Scott, 343 N.C. at 325, 471 S.E.2d at 612" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0645-01" ] }, { "cite": "359 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "775" } ], "opinion_index": 0 }, { "cite": "320 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723431 ], "year": 1987, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0626-01" ] }, { "cite": "414 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "331 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501179 ], "year": 1992, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0105-01" ] }, { "cite": "237 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "254" }, { "page": "250" } ], "opinion_index": 0 }, { "cite": "293 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562567 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "247" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0235-01" ] }, { "cite": "570 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "356 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511468 ], "year": 2002, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0278-01" ] }, { "cite": "61 L. Ed. 2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532170, 1532010, 1532202, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-03", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "912" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] } ], "analysis": { "cardinality": 400, "char_count": 7688, "ocr_confidence": 0.733, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08652203275171641 }, "sha256": "fec8fd99acb6edbad9914e894b7e607e5b3d579dfbf836c0615d3ec992053855", "simhash": "1:6e18a1ff0139907e", "word_count": 1220 }, "last_updated": "2023-07-14T22:12:52.416221+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "s/Bradv. J.", "Brady, J." ], "parties": [ "IN RE: INQUIRY CONCERNING A JUDGE, NO. 278, JERRY BRASWELL, Respondent" ], "opinions": [ { "text": "ORDER OF CENSURE\nThe 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.\nOn 29 April 2003, special counsel for the Commission filed a complaint alleging respondent \u201cengaged 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.\u201d The complaint filed by the special counsel for the Commission further alleged that respondent\u2019s actions \u201cconstitute[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\u2019s oath of office.\u201d\nIn his response to the complaint filed 30 May 2003, respondent answered, inter alia, \u201c[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.\u201d\nOn 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: \u201cThe 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, 2002 before the respondent. At the same time, the matter of Nathaniel Willingham v. Jerry Braswell. . . was still pending and had not been concluded.\u201d\nThe Commission further found \u201cNathaniel 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\u2019s and respondent\u2019s adversarial relationships.\u201d Judge Braswell denied Willingham\u2019s 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.\nBased on its findings of fact the Commission concluded on the basis of the clear and convincing evidence presented at the hearing that respondent\u2019s conduct constituted:\na. conduct in violation of Canons 2A and 3C(1) of the North Carolina Code of Judicial Conduct;\nb. conduct prejudicial to the administration of justice that brings the judicial office into disrepute.\nBased on the foregoing findings of fact and conclusions of law the Commission recommended that this Court censure the respondent. See N.C.G.S. \u00a7\u00a7 7A-376 and 7A-377 (2003).\nIn reviewing the Commission\u2019s recommendations pursuant to N.C.G.S. \u00a7\u00a7 7A-376 and 7A-377, this Court acts as a court of original jurisdiction, rather than in its usual capacity as an appellate 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). \u201cIn 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.\u201d In re Inquiry Concerning a Judge (Brown), 356 N.C. 278, 284, 570 S.E.2d 102, 105 (2002).\nThe 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 \u201cto punish the individual but to maintain the honor and dignity of the judiciary and the proper administration of justice.\u201d 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\u2019s 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).\nIn 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. \u201c \u2018[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 of the judge that he would be unable to rule impartially.\u2019 \u201d State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987). \u201cThus, the standard is whether \u2018grounds for disqualification actually exist.\u2019 \u201d 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\u2019s \u201cimpartiality [could] reasonably be questioned.\u201d Code of Judicial Conduct Canon 3C(1), 2004 N.C. R. Ct. 308.\nIn light of the foregoing, we conclude that respondent\u2019s actions constitute violations of Canons 2A and 3C(1) of the North Carolina Code of Judicial Conduct and thus a violation of N.C.G.S. \u00a7 7A-376 (conduct prejudicial to the administration of justice that brings the judicial office into disrepute). Therefore, pursuant to N.C.G.S. \u00a7\u00a7 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.\nBy order of the Court in Conference, this 12th day of August 2004.\ns/Bradv. J.\nBrady, J.\nFor the Court.", "type": "majority", "author": null } ], "attorneys": [ "William N. Farrell, Jr., Special Counsel, for the Judicial Standards Commission.", "The Honorable Jerry Braswell, pro se." ], "corrections": "", "head_matter": "IN RE: INQUIRY CONCERNING A JUDGE, NO. 278, JERRY BRASWELL, Respondent\nNo. 556A03\n(Filed 13 August 2004)\nJudges\u2014 censure \u2014 refusal to recuse \u2014 pending lawsuit by plaintiff against judge\nA superior court judge is censured by the Supreme Court for conduct prejudicial to the administration of justice that brings the judicial office into disrepute based upon his refusal to recuse himself from hearing a case when the plaintiff in that case had an unrelated lawsuit pending against the judge.\nThis matter is before the Supreme Court pursuant to N.C.G.S. \u00a7 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 Canons 2A and 3C(1) of the North Carolina Judicial Code of Conduct. Considered in the Supreme Court 17 February 2004.\nWilliam N. Farrell, Jr., Special Counsel, for the Judicial Standards Commission.\nThe Honorable Jerry Braswell, pro se." }, "file_name": "0721-01", "first_page_order": 753, "last_page_order": 756 }