Appeals court upholds Cline’s removal as DA

Oct. 01, 2013 @ 02:48 PM

A unanimous N.C. Court of Appeals panel has upheld a lower-court ruling that in 2012 cost former Durham District Attorney Tracey Cline her job.

The panel’s three judges agreed the removal proceeding that resulted from Cline’s public criticism of Senior Resident Superior Court Judge Orlando Hudson met the state’s legal standards.

And on a key point, Cline and her lawyers could cite no precedent for claims she was immune to removal in the dispute, Court of Appeals Judge Sanford Steelman said in an opinion joined by Judges Martha Geer and Robert N. Hunter Jr.

“Immunity does not provide a shield for Cline in this proceeding,” Steelman said, noting that a removal hearing for a district attorney operates by different rules than a civil-court libel lawsuit.

Tuesday’s ruling upheld the March 2012 decision of visiting Superior Court Judge Robert Hobgood to remove Cline from office, for having brought the DA’s office into disrepute.

Cline’s ouster was only the second of a North Carolina district attorney that used the formal mid-term removal process state law provides when a DA has been accused of misconduct.

Her case began after she publicly accused Hudson of corruption. She was unhappy with rulings Hudson made that went against prosecutors in two murder cases and a child-rape case.

One of the murder cases was that of Mike Peterson, the novelist, newspaper columnist and one-time political candidate accused of killing his wife. Hudson granted Peterson a new trial after learning that a State Bureau of Investigation analyst who worked the case had exaggerated his qualifications.

The Court of Appeals upheld that decision earlier this summer.

Tuesday’s ruling addressed eight arguments Cline and her lawyers invoked as reasons to overturn her removal. The most important was her claim that the removal violated her First Amendment free-speech rights to criticize Hudson.

Steelman noted the claim’s tie to libel law, which holds that an official targeted by criticism can’t recover damages absent a showing of “actual malice” – that the criticism was made knowing it was false or with reckless disregard for whether it was true or false.

He said Hobgood had carefully sorted through Cline’s allegations and acted only on those that crossed the line into malice.

And while Cline argued that she should have benefited from the immunity that ordinarily applies to statements prosecutors make in courtrooms and court documents, that didn’t protect her because a removal hearing is “not a suit for monetary damages,” Steelman said.

Cline challenged the removal statute as being unconstitutionally vague for not spelling out what constitutes “disrepute.” But the panel said there’s a similar provision that applies to the discipline of judges that the N.C. Supreme Court upheld in 1977.

The former DA questioned the fairness of the removal proceeding, including its tight deadlines and Hobgood’s refusal to allow her to undertake “discovery” of documents and witnesses to prepare for the 2012 hearing.

But the deadlines for conducting the hearing are set by law, in terms that gave Hobgood little discretion, Steelman said. And because a removal hearing is “neither a civil proceeding nor a criminal proceeding” in state law, Cline “did not have a right to discovery.”

Steelman and his colleagues also held that Hobgood had properly spelled out his intention to decide the matter only if the advocates of Cline’s removal showed him there was “clear, cogent and convincing evidence” to justify the ouster.

Cline faulted Hobgood for allowing lay witnesses to offer an opinion about whether she’d damaged the public’s perception of her office. But the state Supreme Court considered and rejected a similar objection to the only other DA removal on the books, Steelman said.

Her lawyers in oral argument before the Court of Appeals tried to raise a new claim the removal statute is unconstitutional on its face. But the panel rejected the attempt, Steelman noting they hadn’t bothered to raise the point with Hobgood in 2012.

Tuesday’s ruling leaves an appeal to the state Supreme Court as Cline’s only apparent recourse. But because the Court of Appeals panel was unanimous, the high court doesn’t have to take the case.

Former Superior Court Judge Leon Stanback has been serving as DA since Hobgood suspended Cline in advance of the removal hearing. He will continue in office through the 2014 elections.