N.C. Bar, KDH attorney out of order in drive to oust judge

By on November 12, 2015

Judge Jerry Tillett.

Town Attorney Steven Michael.

Two years ago, Kill Devil Hills officials told anyone who would listen that they were being victimized by a vengeful Superior Court judge, and many in local media sopped the story up with disappointing zeal.

But most of us felt the kerfuffle between KDH and Superior Court Judge Jerry R. Tillett was put to bed in March 2013.

Now, it appears, it wasn’t the judge who had a problem with vengeance, but the town, led by its attorney, Steven Michael.

North Carolina law provides for only two methods to remove a sitting a judge before the completion of his or her term. The first is impeachment, conviction or removal for incompetence by the General Assembly.

A two-thirds majority in each chamber is required, a significant hurdle.

The second is to file a complaint with the Judicial Standards Commission (JSC), created by the legislature to specifically handle complaints against judges. The JSC can recommend action to the Supreme Court, and if a majority of the court agrees, it imposes discipline, which could include removal.

In 2012, the Town of Kill Devil Hills, with the aid of attorneys from the League of Municipalities and its attorney, Michael, filed a complaint with the JSC against Tillett.

In March 2013, the JSC, with the concurrence of the Supreme Court, issued Tillett a public reprimand — basically a wrist slap — for improperly intervening in a personnel complaint being pursued by four police officers against KDH Police Chief Gary Britt.

One would think this would be the end of the episode, which included a legal defense claiming the town was being persecuted by Tillett because a police officer had detained his son one night in a public beach access.

But a few days after the JSC essentially gave the green light for Tillett to remain on the bench, Michael sent a casual e-mail to a Bar attorney. In it, he asked on behalf of the town that the organization investigate former town attorney Dan Merrell, whom town officials alleged had colluded with Tillett in the personnel dispute.

In the same e-mail, he also asserts that Tillett acted in concert with Merrell and asks the bar to investigate “these matters.”

Under a 1981 amendment to the N.C. Constitution, all Superior Court judges must be licensed attorneys and accepted members of the North Carolina State Bar.

Michael happens to be the chair of the North Carolina State Bar’s Disciplinary Hearing Commission — the very body that will hear the complaint against Tillett.

Michael’s law partner, Ron Baker, is the immediate past president of the State Bar and, according to arguments filed by Tillett’s attorney, chose all of the current members of the Disciplinary Hearing Commission.

Ultimately, the DHC could disbar Tillett, and under the 1981 amendment, the judge would be forced to resign his seat.

We seriously doubt that when the requirement to be a licensed attorney was imposed on judges, the legislature contemplated handing a private, non-governmental entity the power to remove an elected official with more ease than either the General Assembly or the Supreme Court could.

But that is exactly what is occurring here. A group of non-elected, non-accountable, non-governmental lawyers who are able to overturn an election, remove a judge and thumb their noses at the General Assembly and the Supreme Court.

It’s hard not be cynical at this juncture.

Michael, as town attorney, has now twice gone after Tillett, and this time, he holds significant power and influence in the entity that aims to put the judge on “trial.”

The dual role of KDH attorney and DHC chair seems to constitute a glaring conflict-of-interest.

Not so, says KDH Assistant Town Manager Shawn Murphy. He responded to the Voice via e-mail that no such conflict exists because Michael had “removed” himself from the Bar’s actions against Tillett.

The problem with Murphy’s statement is also another valid reason why the Bar should not be allowed to take this course of action against Tillett.

Since the bar is not a state government entity, it is not subject to any transparency laws. There are no open meetings laws pertaining to the bar, even though in one of its filings it actually claimed to be a state agency on the same level as the Judicial Standards Commission.

E-mails and other communications, say between Michael or Baker and members of the bar, cannot be obtained under a Freedom of Information Act request. We know, because we tried and were politely rebuffed by the president of the Bar in an e-mail response to several questions we posed.

Curiously, until Michael and the KDH machine came along, the Bar had never in its 116-year history gone after a sitting judge.

The precedents cited by the Bar in court filings were all in reverse order. For example, the bar stripped a judge of his law license after the judge was removed from office for wrongdoing.

Indeed, the “judge” was no longer a judge when the bar took action.

Here, the cart is not only before the horse, the horse, in the form of the Supreme Court, has already spoken and cleared Tillett for duty.

It’s hard to think it mere coincidence that the very first time the Bar goes after a sitting judge, that judge happens to be Tillett, and Steven Michael happens to chair the committee that aims to hang Tillett.

Their political paths have crossed before.

In 1991, a vacancy opened in the First Judicial District, and Michael, a Republican, was tapped by GOP Gov. Jim Martin to fill the vacancy. In 1992, Michael had to stand for election to his seat, and two men were seen as potential opponents, Jerry Tillett and J. Richard Parker.

Local politicos tell the story that Tillett and Parker flipped a coin and Parker won the right to run. Whether that story is true or not, Tillett, who at the time was retired Senate President Pro Tem Marc Basnight’s primary aide, campaigned heavily for Parker, and Michael lost his judgeship.

In 1993, with a Democrat sitting in the governor’s mansion, Tillett was appointed to his own judgeship.

So it was not surprising to see that Michael got the ball rolling in his e-mail, although the bar would not tell us who formally filed the complaint against Tillett, nor would the town confirm its attorney was behind it.

Another curious fact is that while the complaint was submitted in March, 2013, it took the bar until March, 2015 to file charges.

Why so long, and why this year?

Could it be that someone covets Tillett’s seat and if he were removed now, the Republican governor would appoint a replacement who would enjoy a two-year incumbency ahead of the 2017 elections?

We asked two elected officials in KDH if they were aware of the actions taken by the town against Tillett.

One told us they first learned of the action when news broke in local media in March 2015 and another said they were under the impression Michael had made the filing on his own and the town was not a party to the action.

At the end of the day, we see KDH, the self-described “victim” back in 2012, doggedly pursuing a judge who was basically cleared by the state Supreme Court to continue serving.

We see a private club of lawyers skirting the Constitution and removing an elected official outside of public scrutiny and subjecting him to a bizarre form of double jeopardy since Tillett has been down this road with the JSC already.

When the local media “thought” someone was trying to remove a police chief through the back door, two local papers cried foul.

When a local attorney filed citizen petitions to remove sitting District Attorney Frank Parrish, two local papers again cried foul and told us the ballot box was where those decisions should be made.

But Tillett, likely as a result of his past position with Sen. Basnight, doesn’t have a lot of media fans in Dare or Pasquotank.

So we see one more troubling trend — local journalists applying different standards of outrage where Tillett is concerned.

In our opinion, the Town of KDH should rein in its attorney and let this matter rest until the 2017 elections.

No harm has come to KDH during this entire five-year skirmish with Tillett.

Indeed, looking at the turnover of police officers in KDH — 25 have retired or resigned in three years — the town should be paying more attention to managing its police chief than seeking revenge on his behalf, or being used by its attorney for his or his cronies political gain.

We’ll take the judgment of the Supreme Court over an obviously tainted North Carolina State Bar every time.

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