State judicial commission being sued by NC Supreme Court Justice Anita Earls files motion to dismiss First Amendment lawsuit

The latest development in the lawsuit involving Supreme Court Justice Anita Earls and the North Carolina Judicial Standards Commission (NCJSC) came last week when the NCJSC filed a motion in federal court to dismiss the case.

For background, Earls filed a lawsuit on Aug. 29 after the NCJSC – which is in charge of judicial ethics and oversight in the state – opened an investigation targeting her after she gave an interview in which she highlighted “the lack of diversity among the staff of the state’s highest court, lamented a recent decision to end bias training for court employees and accused fellow justices of disrespecting her,” WRAL reported.

She also suggested in the interview that, as the only Black woman on the court, race and/or gender may have been factors in what she perceived as slights against her. 

Earls speaking out about the lack of diversity in our state judiciary should be commended, not punished. The identity of the person who ordered the investigation into Earls is a secret, but according to state Rep. Abe Jones (D-Raleigh), who served as a judge for nearly two decades, right-wing Supreme Court Chief Justice Paul Newby is the one behind it.

Earls is suing to stop the investigation on the basis that it violates her First Amendment rights. Her lawsuit claims that she was accused of violating a rule for judges against “impugning the integrity of the courts.”

The NCJSC’s filed response only confirms Earls’ claims that the commission is engaged in the highly subjective policing of speech. Furthermore, the filing asserts that targets of the commission’s investigations do not have the protection of basic Constitutional rights. This is un-American and wrong.

According to right-wing news site The Carolina Journal, in addition to asking a federal court to dismiss Earls’ lawsuit, the NCJSC also filed paperwork asking the court to reject Earls’ request for a preliminary injunction.

“The Complaint accuses the Commission of ‘target[ing]’ Plaintiff in an attempt to silence Plaintiff’s political speech,” the group’s brief supporting the dismissal motion reads. “Far from singling out Plaintiff for investigation, however, the Commission regularly considers whether certain speech by judges is consistent with the Code … no judge should make unsupported accusations that a colleague is making decisions based on prejudices or biases, rather than the law and facts.”

Looking at the facts, a study of advocates who argued at the state Supreme Court found that 90% of the lawyers were white and nearly 70% were male. Earls was asked for her response to the study and she said that there’s a lack of racial diversity among the court’s clerks and that her colleagues treat certain advocates at oral argument far differently than they do others. She went on to say that she didn’t think the issues were because of conscious bias, but that “we all have implicit biases.”

When it comes to Newby, the man likely responsible for the investigation, it’s important to note his personal history of criticizing judges and his extremely partisan way of running the court.

In 2019 when Newby was the only Republican on the state Supreme Court, he gave a speech calling the other justices “far-left political activists.” He also specifically singled out Earls, telling the audience that her election to the court had worried him so much that he lost sleep over it. 

Since becoming chief justice in 2021, Newby has: 

• Removed a judge who ruled against the NCGOP in the Leandro school funding case 
• Overseen the firing of multiple career court administrators 
• “Pushed an interpretation of ethics rules that would allow judges to become permanent candidates who can raise money throughout their eight-year terms,” Facing South reported. 
• Replaced the head of the Administrative Office of the Courts (AOC) who then fired five senior staffers and replaced them with Republicans who had previous connections with Newby or other judges.
• Pushed out the head of the NCJSC in 2022 and then appointed five Republican jurists to serve on the commission, including the chair.

In typical Republican fashion, Newby seems to live his life by the motto of “rules for thee, not for me.”

The question is: will an unelected, Republican-controlled commission allow conservatives like Newby to say and do whatever they want while elected progressives and Black judges are silenced or removed?

“He makes comments about political things,” Rep. Abe Jones said of Newby. “No one tries to stop him. So why does he want to stop her?”