{ "id": 4328336, "name": "IN RE: INQUIRY CONCERNING A JUDGE, NO. 13-127 BRENDA G. BRANCH, Respondent", "name_abbreviation": "In re Inquiry Concerning a Judge, No. 13-127 Branch", "decision_date": "2015-01-23", "docket_number": "No. 220A14", "first_page": "733", "last_page": "740", "citations": [ { "type": "official", "cite": "367 N.C. 733" } ], "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": "722 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "503", "parenthetical": "order" }, { "parenthetical": "alterations in original" }, { "page": "503", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154310 ], "weight": 2, "year": 2012, "pin_cites": [ { "page": "428", "parenthetical": "order" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0418-01" ] } ], "analysis": { "cardinality": 684, "char_count": 16679, "ocr_confidence": 0.734, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1463108466941509 }, "sha256": "c8843bcdf496adc0f70234eb946e95d5f0791f9385745ab2fde04d40f39592c7", "simhash": "1:feb422aeea8b1a0c", "word_count": 2642 }, "last_updated": "2023-07-14T22:06:46.212757+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice ERVIN did not participate in the consideration or decision of this case." ], "parties": [ "IN RE: INQUIRY CONCERNING A JUDGE, NO. 13-127 BRENDA G. BRANCH, Respondent" ], "opinions": [ { "text": "ORDER\nBy the recommendation of the North Carolina Judicial Standards Commission (Commission), the issue before this Court is whether Brenda G. Branch (respondent), a judge of the General Court of Justice, District Court Division, Judicial District 6A, should be publicly reprimanded for conduct in violation of Canons 1, 2A, 3A(1), and 3A(4) of the North Carolina Code of Judicial Conduct and conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. \u00a7 7A-376(b). Respondent waived her right to a formal hearing, and she does not contest the facts or oppose the Commission\u2019s recommendation that she be publicly reprimanded.\nOn 13 January 2014, the Commission\u2019s counsel filed a statement of charges alleging that respondent had engaged in inappropriate conduct while presiding over divorce proceedings in which Sergeant First Class Jason Foster (Foster) was the defendant. Foster was deployed overseas at the time of the proceedings. The statement of charges asserted that respondent denied Foster a fair trial in clear violation of the Servicemember\u2019s Civil Relief Act of 2003. Respondent filed an answer on 18 February 2014, which was timely received by the Commission. On 9 May 2014, the Commission held a formal hearing of the matter at the North Carolina Court of Appeals. Counsel for the Commission and counsel for respondent presented evidence at the hearing by stipulation. After reviewing all the evidence and hearing oral arguments from counsel, on 6 June 2014, the Commission made its recommendation, which stated the following findings of fact:\n1. The investigative panel of the Commission alleged that, in the matter of Halifax County File No. 12-CVD-733, Foster v. Foster, the Respondent engaged in conduct inappropriate to her judicial office by:\na. making inadequate inquiry into the rights afforded to Defendant Jason Foster, a litigant protected under the Servicemember\u2019s Civil Relief Act of 2003, 50 U.S.C. App. \u00a7\u00a7 501-597b (hereafter \u201cthe SCRA\u201d), and failing to maintain adequate professional competence in this area of the law;\nb. imprudently relying upon the counsel for the opposing party in the matter for a determination of the rights afforded to Defendant Jason Foster under the SCRA, without sufficiently performing her own independent inquiry and research into the law, and allowing opposing counsel to present such advice and opinion on the law to the Court outside of the presence of Defendant or anyone appointed as legal representation for Defendant; and,\nc. inappropriately denying Defendant Jason Foster the appointment of legal representation guaranteed under the SCRA, thereby denying him his full right to be heard according to the law.\n2. In the matter of Halifax County File No. 12-CVD-733, Foster v. Foster, Defendant Jason W. Foster was, at the time of the service of a civil complaint for child custody, child support, alimony, equitable distribution, post-separation support, and attorney fees, serving as an Active Duty Soldier of the rank of Sergeant First Class in the United States Army, stationed in Daegu, South Korea.\n3. In a letter to the Court dated 16 July 2012 and filed 26 July 2012, Defendant Jason Foster, in response to the service of the complaint, wrote Respondent to request a stay of proceedings pursuant to the SCRA and claiming that his military service precluded him from participating in court proceedings until at least 30 April 2013. Defendant, in his letter, wrote that \u201clegal counsel informs me that federal law requires a stay of proceedings for a minimum of 90 days for service members on active duty\u201d and cited the SCRA. Defendant received this advice from a Judge Adjutant General officer stationed in Daegu, Korea.\n4. In a separate letter also dated 16 July 2012 and filed 26 July 2012, Defendant\u2019s commanding officer also wrote the court to verify that Defendant\u2019s military service would preclude his participation in court proceedings until at least 30 April 2013 and to also request a stay of proceedings until that time, personally ensuring that Defendant would be able to participate in the next scheduled proceeding after 30 April 2013. The commanding officer, in his letter, wrote that he was \u201cadvised by legal counsel that federal law allows a stay of proceedings for service members on active duty when their ability to defend themselves is materially affected by their material service\u201d and cited the SCRA. The commanding officer\u2019s letter explained \u201cUntil this date [30 April 2013], SFC Jason Foster is needed by this unit because he is essential to the mission\u201d and further explained \u201cIn this instance, SFC\u2019s critical role in the national security mission of this command precludes his participation in court proceedings until April 30th, 2013. He will be unable to present any defense at all due to his duties.\u201d\n5. The stay proposed in the letters from Defendant and Defendant\u2019s commanding officer was for approximately nine months.\n6. The SCRA states in plain language that, if it appears that Defendant is in military service, the court may not enter a default judgment against the absent member until after the court appoints an attorney to represent Defendant.\n7. Sometime between the 6 August 2012 and 8 August 2012 term of Halifax County Family Court, counsel for Plaintiff in this matter requested an order from Respondent seeking further information from Defendant concerning his status under the SCRA and his future availability before ruling on his request to stay the proceedings.\n8. In a hearing on Plaintiffs attorney\u2019s request, Respondent asked Plaintiff\u2019s attorney to provide supporting documents for her request that Defendant\u2019s stay be denied. Plaintiff\u2019s attorney was allowed to present arguments and evidence challenging the validity of Defendant\u2019s claim for a stay. Defendant was not present and was not represented at this proceeding. Respondent did not appoint counsel for Defendant and cites the letters from Defendant and his Commanding officer referring to \u201cthe advice of counsel\u201d as evidence.\n9. Plaintiff\u2019s attorney provided Respondent with an undated, uncited publication, entitled \u201cCROSSING THE MILITARY MINEFIELD: A JUDGE\u2019S GUIDE TO MILITARY DIVORCE IN NORTH CAROLINA\u201d by Mark E. Sullivan, discussing the SCRA and ways to challenge the claims of servicemen under the SCRA, specifically detailing ways that a judge could deny a serviceman a stay, when so requested, by finding that the serviceman did not show \u201cgood faith and diligence\u201d when responding to a court action. Here, Defendant was not properly served with any motion or objection from Plaintiff\u2019s counsel, had no notice of her objections to his request for a stay, and was not provided with the documents Plaintiff\u2019s counsel presented to Respondent, which Respondent used in consideration of the Plaintiff\u2019s counsel\u2019s objections.\n10. The same article presented to Respondent by Plaintiff\u2019s attorney also says in plain language that counsel should be appointed on behalf of an absent serviceman before the entry of a default judgment.\n11. Respondent, relying upon the information presented by Plaintiff\u2019s attorney, consented to the order requested by Plaintiff\u2019s attorney and tasked Plaintiff\u2019s attorney with drafting the order requesting more information from Defendant. Respondent entered the order oh 4 September 2012 declaring that the information provided by Defendant and his commanding officer was insufficient to justify a request for a stay, and gave Defendant a deadline of 1 October 2012 to provide further justification for his request for a stay. Tracking information reveals that order was not received by Defendant until 24 September 2012, less than one week before the deadline presented in the order.\n12. In response to the 4 September 2012 order, neither Defendant, nor anyone representing Defendant, replied to Plaintiffs attorney\u2019s inquiries for more information concerning his claim that he would be unable to participate in the scheduled court proceedings. Defendant claims that information about his military mission was confidential and that he could not provide that information to the Court.\n13. On 5 November 2012, Respondent denied Defendant\u2019s request for a stay, citing \u201ca lack of good faith and due diligence\u201d by Defendant in failing to respond to the Court\u2019s efforts to get more information. Respondent decided that the failure of Defendant to respond to the order for more information was \u201ca willful and direct intention to maneuver and prolong the case at the Defendant\u2019s will for as long as the Defendant saw fit without regard to the Plaintiff.\u201d\n14. In subsequent legal proceedings on 3 December 2012 and 4 March 2013 Respondent entered default judgments against Defendant. Defendant was not present and was not represented at any of these proceedings.\n15. Nowhere in the case file for Halifax County File No. 12-CVD-733, prior to or concurrent with the entry of the aforementioned default judgments, is there any notice of representation, appointment of counsel, or any other filings, correspondence, or similar documentary evidence to suggest that Defendant was represented in this matter by counsel. Defendant retained Mr. William T. Skinner IV as counsel on 6 May 2013, within a month of his return to North Carolina.\n16. Despite the absence of any legal filing or notice or representation on behalf of Defendant, Respondent claims that she determined that Defendant was represented by counsel based on the following statement in his letter requesting the stay: \u201cLegal counsel informs me that federal law requires a stay of proceedings for a minimum of 90 days for service members on active duty (50 U.S.C. App. 522(a) (1)).\u201d Nowhere in Defendant\u2019s is [sic] letter, or the letter from his commanding officer, is any legal counsel named nor is any contact information provided for any legal counsel. Nothing in the [sic] either letter suggests that any counsel referred to is or was licensed to practice in the state of North Carolina.\n17. The actions. identified by the Commission as misconduct by Respondent, while in violation of the North Carolina Code of Judicial Conduct, do not appear to be the result of any willful or intentional misconduct by Respondent who believed at all times that she was acting within the scope of her discretion and that she was acting to preserve the integrity of the Court. Rather Respondent\u2019s misconduct appears to have resulted from insufficient inquiry into her obligations under the SCRA, her insufficiently-based conclusion that Defendant had legal representation, and from an inappropriate reliance on legal arguments advanced by one party that Respondent did not sufficiently research for herself.\n18. Respondent has a good reputation in her community. The actions identified by the Commission as misconduct by Respondent appear to be isolated and do not form any sort of recurring pattern of misconduct, and Respondent has been fully cooperative with the Commission\u2019s investigation, voluntarily providing information about the underlying legal matter and fully and openly admitting error.\n19. Respondent agreed to enter into a Stipulation to bring closure to the matter and because of her concern for protecting the integrity of the court system. With the benefit of hindsight, Respondent now admits and understands her error and that in fact her actions, even if unintentional and not motivated by malice or ill-intent, did constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Respondent acknowledged that she has learned a valuable lesson from this incident and will be particularly vigilant to changes to the laws that affect the growing number of servicemen and servicewomen in North Carolina, and will make every effort to ensure that every person legally interested in a proceeding receives their opportunity to be heard according to the law in the [sic] all future dealings.\n20. Respondent agreed to accept a recommendation of public reprimand from the Commission and acknowledged that the conduct set out in the stipulations establishes by clear and convincing evidence that this conduct is in violation of the North Carolina Code of Judicial Conduct and is prejudicial to the administration of justice that brings the judicial office into disrepute in violation of G.S. \u00a7 7A-376(b).\nIn addition to these findings of fact, the Commission made the following conclusions of law based on clear and convincing evidence:\n1. Respondent\u2019s conduct, as set forth in Paragraphs One through Twenty of the findings of fact, constitutes conduct in violation of Canons 1, 2A, 3A(1) and 3A(4) of the North Carolina Code of Judicial Conduct.\n2. Respondent\u2019s conduct, as set forth in Paragraphs One through Twenty of the Findings of Fact, constitutes conduct prejudicial to the administration of justice that brings- the judicial office into disrepute in violation of N.C.G.S. \u00a77A- 376(b).\nWhen reviewing a recommendation from the Commission, the Supreme Court \u201cacts as a court of original jurisdiction, rather than in its typical capacity as an appellate court.\u201d In re Hartsfield, 365 N.C. 418, 428, 722 S.E.2d 496, 503 (2012) (order) (citation and quotation marks omitted). We have discretion to \u201cadopt the Commission\u2019s findings of fact if they are supported by clear and convincing evidence, or [we] may make [our] own findings.\u201d Id. (alterations in original) (citations and quotation marks omitted). The scope of our review is to \u201cfirst determine if the Commission\u2019s findings of fact are adequately supported by clear and convincing evidence, and in turn, whether those findings support its conclusions of law.\u201d 365 N.C. at 429, 722 S.E.2d at 503 (citation and quotation marks omitted).\nAfter careful review, this Court concludes that the Commission\u2019s findings of fact are supported by clear, cogent, and convincing evidence in the record. In addition, we conclude that the Commission\u2019s findings of fact support its conclusions of law. We therefore accept the Commission\u2019s findings and adopt them as our own. Based upon those findings and conclusions and the recommendation of the Commission, we conclude and adjudge that respondent be publicly reprimanded.\nTherefore, pursuant to N.C.G.S. \u00a7\u00a7 7A-376(b) and -377(a5), it is ordered that respondent Brenda G. Branch be PUBLICLY REPRIMANDED for conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. \u00a7 7A-376(b) and which violates Canons 1, 2A, 3A(1), and 3A(4) of the Code of Judicial Conduct.\nBy order of the Court in Conference, this the 22nd day of January, 2015.\ns/Beaslev. J.\nFor the Court\nJustice ERVIN did not participate in the consideration or decision of this case.", "type": "majority", "author": "s/Beaslev. J." } ], "attorneys": [ "No counsel for Judicial Standards Commission or respondent." ], "corrections": "", "head_matter": "IN RE: INQUIRY CONCERNING A JUDGE, NO. 13-127 BRENDA G. BRANCH, Respondent\nNo. 220A14\n(Filed 23 January 2015)\nJudges \u2014 malpractice\u2014public reprimand \u2014 insufficient inquiry\u2014 improper reliance on legal arguments\nRespondent Judge Brenda G. Branch was publicly reprimanded for conduct prejudicial to the administration of justice that brought the judicial office into disrepute in violation of-N.C.G.S. \u00a7 7A-376(b) and which violated Canons 1, 2A, 3A(1), and 3A(4) of the Code of Judicial Conduct. Respondent\u2019s misconduct resulted from insufficient inquiry into her obligations under the Servicemember\u2019s Civil Relief Act of 2003, her insufficiently based conclusion that defendant serviceman husband had legal representation in a divorce case while he was commissioned overseas, and an inappropriate reliance on legal arguments advanced by one party that respondent did not sufficiently research for herself.\nJustice ERVIN did not participate in the consideration or decision of this case.\nThis matter is before the Court pursuant to N.C.G.S. \u00a7\u00a7 7A-376 and -377 upon a recommendation by the Judicial Standards Commission entered 6 June 2014 that respondent Brenda G. Branch, a Judge of the General Court of Justice, District Court Division 6A, State of North Carolina, be publicly reprimanded for conduct in violation of Canons 1, 2A, 3A(1), and 3A(4) of the North Carolina Code of Judicial Conduct and for conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. \u00a7 7A-376(b). Calendared for argument in the Supreme Court on 6 October 2014, but determined on the record without briefs or oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure and Rule 2(c) of the Rules for Supreme Court Review of Recommendations of the Judicial Standards Commission.\nNo counsel for Judicial Standards Commission or respondent." }, "file_name": "0733-01", "first_page_order": 773, "last_page_order": 780 }