News-Record.com

Since the N&O reported the story of Harnett District Court Judge James Ethridge today, I've talked to a couple of people at the state's Administrative Office of the Courts trying to get a handle on the problem.

Ethridge was disbarred by the North Carolina State Bar in October. AOC won't let him hold court. But he hasn't been removed from office, and he's still drawing paychecks at a rate of $101,000 a year.

It's a very interesting case, one that possibly has never come up before or will happen again.

OK, this ought to be simple. The guy is disbarred. He's no longer a licensed lawyer, so how the heck can he be a judge? His dismissal ought to be automatic.

Well, let's look at what the state constitution says.

"Article IV, Sec. 22. Qualification of Justices and Judges.

"Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of District Court. This section shall not apply to persons elected to or serving in such capacities on or before January 1, 1981."

Notice, this refers to eligibility for election or appointment to judicial office, not to holding that office. AOC Deputy Council Pam Best confirmed my interpretation that, while this would prevent Ethridge from running again for the bench, it probably doesn't disqualify him from serving as a judge.

The explanation takes us back to the history of this constitutional provision, which you'll notice only went into effect in 1981. Before then, incredibly, a person did not have to be a lawyer to be a state judge in North Carolina. When the constitutional measure was enacted, it raised the bar for new judges but allowed nonlawyers to serve out their terms. That's why it didn't say someone had to be a licensed lawyer to serve.

OK, but surely a sitting judge can be removed for cause. Absolutely. The state constitution, in Article IV, section 17, says:

"(1) Removal of Judges by the General Assembly. Any Justice or Judge of the General Court of Justice may be removed from office for mental or physical incapacity by joint resolution of two-thirds of all the members of each house of the General Assembly. Any Justice or Judge against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied by a copy of the causes alleged for his removal, at least 20 days before the day on which either house of the General Assembly shall act thereon. Removal from office by the General Assembly for any other cause shall be by impeachment.

"(2) Additional method of removal of Judges. The General Assembly shall prescribe a procedure, in addition to impeachment and address set forth in this Section, for the removal of a Justice or Judge of the General Court of Justice for mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent, and for the censure and removal of a Justice or Judge of the General Court of Justice for wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute."

I especially like the parts about moral turpitude and habitual intemperance. But what about Ethridge? You could say his conduct "brings the judicial office into disrepute," but that seems to imply conduct while in office.

Consider the "habitual intemperance" part. Suppose someone had a drinking problem but sobered up. Then he was elected to the bench. At one time he might have been guilty of habitual intemperance, but surely the constitution doesn't mean that a recovering alcoholic is unfit to serve as a judge. So it seems to me there's a legitimate question as to whether this provision allows the impeachment of a judge whose misconduct occurred before he was a judge.

I think the authors of the constitutional language failed to anticipate a situation like this one. The legislature should rewrite Article IV, section 22 to make it certain that a disbarred lawyer cannot serve as a judge. The change would have to be approved by the electorate, which I hope would be no problem.

In the meantime, AOC is seeking help from the Attorney General's Office. There might be some legal remedy to this dilemma that isn't readily apparent.

One solution, obviously, would be for Ethridge to resign. That would be the ethical thing to do. Maybe he will, although I'm told he has appealed his disbarment, so I suppose there are issues of due process in play. At the moment, though, he is disbarred, and that should mean automatic and immediate removal from office.