Opinion
No. COA09-1374
Filed 1 June 2010 This case not for publication
Appeal by Respondent from order entered 22 May 2009 by Judge Robert H. Hobgood in Hertford County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy A. Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Perry W. Martin, for Respondent-Appellant.
MAGISTRATE Hertford County No. 09 R 33.
Leonard E. Mobley Jr. (Respondent) appeals from the trial court's order permanently removing him from the office of magistrate and terminating his salary pursuant to N.C. Gen. Stat. § 7A-173(c). For the following reasons, we affirm.
Pursuant to N.C. Gen. Stat. § 7A-173, the Chief District Court Judge of Hertford County entered an order on 1 May 2009 suspending Respondent from performing his official duties as magistrate until a final determination of pending criminal charges on their merits. On 21 May 2009, a hearing was held, in accordance with the Order Suspending Magistrate and N.C. Gen. Stat. § 7A-173(c), in Hertford County Superior Court to determine whether grounds existed for the removal of Respondent from office.
On 22 May 2009, the trial court entered an order concluding that Respondent's actions, "while serving in his official capacity as a Magistrate on 14 January 2009, constitute willful misconduct in the office." The trial court further concluded that such conduct was "prejudicial to the administration of justice [and] brings the judicial office of magistrate into disrepute as that conduct might reasonably have impacted knowledgeable observers." Finding no lawful excuse for or defense to Respondent's violation of his "responsibility not only to uphold the law and adequately perform the duties of his office, but also to behave as a responsible adult role model in the community he served," the trial court permanently removed Respondent from the office of magistrate in Hertford County and terminated his salary. On or about 12 June 2009, Respondent filed notice of appeal.
On appeal, Respondent argues that he was terminated pursuant to a statute — namely N.C. Gen. Stat. § 7A-173 — that violates the Equal Protection Clause of the Fourteenth Amendment. Further, Respondent contends that his behavior did not violate that statute in that it was not willful or prejudicial to the administration of justice so as to bring the judicial office into disrepute.
I . Constitutionality of N.C. Gen. Stat. § 7A-173
Respondent alleges error by the trial court in ordering his permanent removal pursuant to N.C. Gen. Stat. § 7A-173, in that the statute unconstitutionally violates the Equal Protection Clause of the United States Constitution. The basis for Respondent's argument is that although judges and magistrates face the same grounds for suspension or removal, sanctions for magistrates comprise disparate treatment for violating those same standards of conduct. Respondent, however, failed to raise this constitutional issue before the trial court, and the constitutionality of the statute may not be raised for the first time on appeal. See Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) ("A constitutional issue not raised at trial will generally not be considered for the first time on appeal."). Therefore, this Court will not pass upon Respondent's allegation that § 7A-173 is unconstitutional, and this argument is dismissed.
II. Application of N.C. Gen. Stat. § 7A-173
Respondent argues that the trial court erred as a matter of law in finding that his behavior violated N.C. Gen. Stat. § 7A-173 because, although it might have reasonably impacted knowledgeable observers, his conduct was not willful and did not bring the judicial office of magistrate into disrepute. We disagree.
Section 7A-173 "specifies the procedure and grounds by which a magistrate may be suspended and removed from office" and states that the "[g]rounds for suspension or removal of a magistrate are the same as for a judge of the General Court of Justice." In re Kiser, 126 N.C. App. 206, 208, 484 S.E.2d 441, 442 (1997) (citing N.C. Gen. Stat. § 7A-173(a)). A judge, and therefore a magistrate, may be removed from office for "(1) willful misconduct in office, (2) willful and persistent failure to perform his duties, (3) habitual intemperance, (4) conviction of a crime involving moral turpitude, or (5) conduct prejudicial to the administration of justice that brings the judicial office into disrepute." Id.; see also N.C. Gen. Stat. § 7A-376(b) (2007) (providing the grounds for censure, suspension, or removal of a judge).
Willful misconduct in office denotes "improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly and, generally, in bad faith. It is more than a mere error of judgment or an act of negligence. While the term would encompass conduct involving moral turpitude, dishonesty, or corruption, these elements need not necessarily be present."
In re Stuhl, 292 N.C. 379, 389, 233 S.E.2d 562, 568 (1977) (quoting In re Edens, 290 N.C. 299, 305, 226 S.E.2d 5, 9 (1976)). "Conduct prejudicial to the administration of justice that brings the Judicial Office into disrepute denotes `conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office.'" Id. (quoting Geiler v. Comm'n on Judicial Qualifications, 515 P.2d 1, 9 (1973)).
When characterized as willful, a magistrate's conduct inevitably causes disrepute because "[w]ilful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute." In re Nowell, 293 N.C. 235, 248, 237 S.E.2d 246, 255 (1977). Willful misconduct, however, is not essential to a finding of this latter ground for removal, where "negligence or ignorance not amounting to bad faith" may constitute behavior "prejudicial to the administration of justice so as to bring the judicial office into disrepute." Id. at 248-49, 237 S.E.2d at 255. "Whether the conduct of a magistrate `may be characterized as prejudicial to the administration of justice which brings the judicial office into disrepute depends . . . [on] the impact such conduct might reasonably have upon knowledgeable observers.'" Kiser, 126 N.C. App. at 209, 484 S.E.2d at 443 (quoting In re Crutchfield, 289 N.C. 597, 603, 223 S.E.2d 822, 826 (1975)).
Respondent argues that his conduct, "as it might reasonably have impacted knowledgeable observers, was not willful and did not bring the judicial office of magistrate into disrepute." Respondent admits to striking Complainant but argues that his behavior was merely a reaction prompted by Complainant's own loud and obnoxious behavior rather than conduct arising from any specific intent to misuse the powers of his judicial office. The trial court, however, correctly concluded that Respondent's "physical assault upon a person in custody," where Complainant "had made no physical move toward the magistrate," constituted willful misconduct and clearly brings the office of magistrate into disrepute. Cf. id. at 208-09, 484 S.E.2d at 443 ("We believe respondent's conduct so obviously brings the judicial office into disrepute, that such a principle hardly needs stating."). "As a magistrate, [R]espondent had a responsibility not only to uphold the law and adequately perform the duties of his office, but also to behave as a responsible adult role model in the community he served." Id. at 209, 484 S.E.2d at 443. Respondent violated that duty when he resorted to criminal violence — regardless of verbal provocation by Complainant or the long hours Respondent had worked that day — and thereby demonstrated "blatant indifference to the law," such that "[a] knowledgeable observer is bound to find disrepute, disgrace and discredit in [R]espondent's conduct." Id. Accordingly, we hold the trial court did not err as a matter of law in concluding Respondent's behavior was willful and prejudicial to the administration of justice in its tendency to bring the judicial office of magistrate into disrepute. Therefore, we affirm the trial court's order for permanent removal of Respondent from office and termination of his salary.
Affirmed.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).