Lawyers spar over judicial clout in KDH case

By Rob Morris on February 9, 2013

Lawyers are sharply debating whether the North Carolina Supreme Court should step into the Kill Devil Hills Police Department controversy that has played out for more than a year.

The case, however, has shifted from complaints about police Chief Gary L. Britt’s handling of personnel issues into a conflict over how much power a judge can exercise in criminal and civil matters.

Dare County Resident Superior Court Judge Jerry Tillett is at the center the debate, which court documents suggest boils down to a basic question: Did his personal interests or did a broader public concern drive his order to obtain copies of confidential personnel files?

The debate unfolds in a series of filings related to Tillett’s request for the state Supreme Court to consider hearing a case stemming from his order and another one related to complaints about Britt.

Lower courts have ruled that the orders were invalid.

Arguments by attorneys for Kill Devil Hills and the North Carolina Municipal League continue to revolve around vastly conflicting accounts of a meeting involving the judge and top town officials 18 months before issues concerning the chief became public.

The meeting has dominated public discussion about the case, but questions linger about its relevance to Britt’s management practices and to the case as a whole.

Filings by league attorneys suggest it is proof that a vengeful Tillett was acting in his own interests. Tillett’s lawyers argue that descriptions of the meeting are irrelevant and were initially based on a faulty account provided by a town official who was not there.

It first surfaced in an affidavit by Assistant Town Attorney Shawn Murphy, who described Tillett berating Britt about the treatment of his son in a traffic stop and declaring that he could have the chief removed.

The hearsay account has resurfaced repeatedly in court papers as an accurate portrayal of the 45-minute meeting in April of 2010 and the main reason why Tillett later involved himself in town personnel matters.

More recent affidavits by those who actually attended the meeting provide different details.

Also raised by the town’s attorneys is whether Tillett had jurisdiction in dealing with complaints from four police officers who complained that their personnel records had been altered and that they had been subjected to trumped-up disciplinary actions.

The officers had filed written complaints with the judge, saying their grievances had been ignored or improperly handled by town officials. Courts have since ruled against the officers in actions stemming from the initial complaints and a later lawsuit.

In late 2012, Britt was reinstated after a three-month suspension. An internal review by the town and the North Carolina League of Municipalities concluded that he had not intentionally done anything wrong. But they added that he had problems with his management style.

Britt was suspended in September of 2011 after the town learned that District Attorney Frank Parrish had informed Tillett in writing that he intended to file a petition for the chief’s removal. At the same time, the four police officers filed their complaints separately in Superior Court.

Kill Devil Hills officials then called on the League of Municipalities, its insurance underwriter, to help with the review.

After receiving Parrish’s letter, Tillett issued an order for copies of employee personnel files, including those of Britt and Murphy. His reason, court records later revealed, was to protect evidence in a pending case. Parrish eventually backed off and never formally filed the petition.

Attorneys for the town argue that Tillett abused his discretion and had no legal power to demand the records because it did not involve a matter legitimately pending before him. Tillett’s lawyers say that assumption would stifle judges statewide from issuing orders for obtaining evidence, such as bank and phone records, in cases that have not yet entered the court system.

Dan Merrell, the town attorney at the time, told the town to comply with Tillett’s order without a hearing, according to the court documents. The town’s filings say that officials were denied due process because they were not allowed a hearing before the judge.

Precisely what took place in the 2010 meeting will probably never be fully known. Wording in affidavits by Town Manager Debbie Diaz, Britt and Assistant Police Chief Dana Harris is similar in several sections, as is that of former Mayor Ray Sturza and and Merrell.

Merrell said in his sworn statement that discussion of the incident with Tillett’s son at a beach access outside Mexi-Cali Brews represented “possibly 2 percent” of the meeting. He said that contrary to Murphy’s assertion, they were not ordered to the meeting.

He said that he had suggested the meeting “to discuss concerns he had with with the management of the Kill Devil Hills Police Department and the perception of the way the officers were conducting their duties in the eyes of the public, local attorneys and other county officials.”

Merrell aded that the discussion also touched on “the alleged altering of court documents by police officers and a court finding regarding the alteration by an officer.”

In her affidavit, Diaz provided a different account of the meeting, which she said Merrell had called a “venting session” for Tillett.

“The meeting appeared to be focused primarily on the recent incident with Judge Tillett’s son, and Judge Tillett’s belief that the officers involved had violated his son’s rights,” she said.

She added: “Throughout this process, Dan Merell appeared to be more of an advocate for Judge Tillett rather than the Town.”

Assistant Police Chief Dana Harris described Tillett as angry and pointing his finger at times. Tillett, according to Harris, said that “police officers do not interpret the law, and that they have to go by what the judge says.”

He went on to say that Tillett described the incident with his son as a test case “where no one was arrested and there were violations by the Police Department.”

A broader topic of the meeting, according to the court records, was complaints of questionable searches and seizures by some members of the police force. A recording of the encounter with Tillett’s son includes police bringing a drug-sniffing dog to the scene.

Sturza said the incident with the judge’s son was only one aspect of many in the meeting, “including illegal searches and seizures by some of the Kill Devil Hills police officers.” He described Tillett as saying the incident “served to the affirm the validity” of longstanding complaints about some members of the police department.

Lawyers for the judge say that accounts of the meeting are irrelevant to the pending issue and that the additional affidavits concerning the meeting were filed by the town’s attorneys too long after the fact.

Tillett might have more at stake than a legal interpretation of his judicial authority. If the state Judicial Standards Board is investigating him, as has been widely speculated, the same questions are likely to come into to play.