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In re Inquiry Concerning a Judge

Supreme Court of North Carolina

May 11, 2018

IN RE: INQUIRY CONCERNING A JUDGE, NO. 16-231 GARY L. HENDERSON, Respondent

         This matter is before the Court pursuant to N.C. G.S. §§ 7A-376 and -377 upon a recommendation by the Judicial Standards Commission entered 20 December 2017 that Respondent Gary L. Henderson, a Judge of the General Court of Justice, District Court Division 26, State of North Carolina, receive a public reprimand for conduct in violation of Canons 1, 2A, 3A(3) and (5), and 3B(1) of the North Carolina Code of Judicial Conduct and for conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C. G.S. § 7A-376. This matter was calendared for argument in the Supreme Court on 18 April 2018, but determined on the record without briefs or oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure and Rule 3 of the Rules for Supreme Court Review of Recommendations of the Judicial Standards Commission.

          No counsel for Judicial Standards Commission or Respondent.

          ORDER

          Morgan, J.

         The issue before this Court is whether District Court Judge Gary L. Henderson (Respondent) should be publicly reprimanded for violations of Canons 1, 2A, 3A, and 3B of the North Carolina Code of Judicial Conduct amounting to conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C. G.S. § 7A-376(b). Respondent has not challenged the findings of fact made by the Judicial Standards Commission (the Commission) or opposed the Commission's recommendation that he be publicly reprimanded by this Court.

         On 2 June 2017, the Commission Counsel filed a Statement of Charges against Respondent alleging that he had engaged in conduct inappropriate to his office when he: "(1) failed to issue a ruling for more than two (2) years on a motion for attorney's fees and expenses . . .; (2) failed to respond or delayed responding to party and attorney inquiries as to the status of the pending ruling; and (3) failed to respond in a timely manner to numerous communications from the Commission's investigator regarding the status of the ruling during the Commission's investigation into this matter."

         On 20 December 2017, the Commission filed a Recommendation of Judicial Discipline, in which it made the following findings of fact:

1. On or about August 6, 2013, Respondent began presiding over a trial . . . to determine whether defendant Shaffer was entitled to attorney's fees and costs associated with her claims for post-separation support, permanent child custody, sanctions for purposeful delay, motion for contempt, and expert witness fees and costs. Plaintiff Zurosky was represented by attorney Tamela Wallace and defendant Shaffer was represented by attorney Amy Fiorenza. Unable to complete the hearing in a single session, the parties reconvened on April 23, 2014 and again on November 5, 2014 to conclude the trial. Respondent reserved ruling and directed the attorneys to submit written closing arguments. Attorney Fiorenza submitted the defendant's attorney's fees closing arguments, attachments and exhibits to Respondent on December 12, 2014. Attorney Wallace submitted the plaintiff's attorney's fees closing arguments to Respondent on December 19, 2014.
2. On June 15, 2015, six months after Respondent reserved judgment on the motion for attorney's fees, Attorney Fiorenza emailed Respondent inquiring as to the status of the ruling on attorney's fees, costs, and expenses. The following day, Respondent emailed the parties with apologies, noting the "matter is on my radar and it is my hope to work on it next week since court will be down for the Judge's Conference."
3. On August 28, 2015, another six weeks later, Attorney Fiorenza again contacted Respondent by email. Attorney Fiorenza asked Respondent what his estimated timeframe might be to issue a ruling and noted her client was anxious to receive a decision sometime in 2015. Respondent told Attorney Fiorenza that he did not anticipate having the order completed in 2015 because he would not have time.
4. On February 8, 2016, Attorney Fiorenza emailed Respondent a third time to inquire as to when a ruling could be expected. Respondent did not respond to this inquiry.
5. On April 7, 2016, attorney Fiorenza emailed Respondent a final time regarding the status of the decision on attorney's fees as all other matters in the case had been concluded. Attorney Fiorenza further advised Respondent that she would be forced to withdraw from the case if a decision was not soon rendered as it had been sixteen (16) months since the hearing concluded. Respondent did not respond to this inquiry.
6. Attorney Fiorenza withdrew from the case on June 6, 2016.
7. On June 20, 2016, Ms. Shaffer, now a pro se defendant, emailed Respondent, and copied the opposing attorney, to inquire when the parties could expect a decision on the attorney's fees motion heard in December 2014. Respondent did not respond. . . .
8. Having heard no response from Respondent, Ms. Shaffer emailed Chief District Court Judge Regan Miller on the morning of July 15, 2016, and copied Respondent, seeking the Chief Judge's assistance in getting a response from Respondent. Ms. Shaffer expressed her frustration with the then eighteen (18) month delay in issuing a decision in her matter. Later that morning, Chief Judge Miller forwarded Ms. Shaffer's email to Respondent. That afternoon, Respondent replied to Chief Judge Miller that he had been "dragging [his] feet" and that he had no excuses for the delay other than his "dread" of the case. Respondent at that time also committed to "making a decision ...

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