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In re Inquiry Concerning A Judge

Supreme Court of North Carolina

September 27, 2019

IN RE INQUIRY CONCERNING A JUDGE, NO. 18-070 ANGELA C. FOSTER, Respondent

          No counsel for Judicial Standards Commission or respondent.

          ORDER

          DAVIS, J.

         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 on 23 May 2019 that respondent Angela C. Foster, a Judge of the General Court of Justice, District Court Division, Judicial District Eighteen, be censured for conduct in violation of Canons 1, 2A, 3A(3), and 3A(4) 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 28 August 2019, but was 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.

         The issue before the Court is whether District Court Judge Angela C. Foster, respondent, should be censured for violations of Canons 1, 2A, 3A(3), and 3A(4) 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 she be censured by this Court.

         On 22 August 2018, Commission Counsel filed a Statement of Charges against respondent alleging that she had engaged in conduct inappropriate to her judicial office by making inappropriate comments; by failing to remain patient, dignified, and courteous with the parties appearing before her; by failing to provide every person legally interested in a proceeding, or the person's lawyer, the full right to be heard according to the law; and by abusing the contempt power. Respondent fully cooperated with the Commission's inquiry into this matter. In the Statement of Charges, Commission Counsel asserted that respondent's actions constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute or otherwise constituted grounds for disciplinary proceedings under Chapter 7A, Article 30 of the North Carolina General Statutes.

         Respondent filed her answer on 11 September 2018. On 26 March 2019, Commission Counsel and respondent entered into a Stipulation and Agreement for Stated Disposition (the Stipulation) containing joint evidentiary, factual, and disciplinary stipulations as permitted by Commission Rule 22 that tended to support a decision of censure. The Stipulation was filed with the Commission on 2 April 2019. The Commission heard this matter on 12 April 2019 and entered its recommendation that same day, which contains the following stipulated findings of fact:

1. On or about January 2, 2018, Respondent presided over a contempt hearing in Morrow v. Livesay, Guilford County File No. 15CVD5571. The matter was calendared by the defendant Jeffery Livesay against the plaintiff Kathi Morrow, to determine whether Ms. Morrow should be held in contempt after the parties' fifteen (15) year old twin sons, who reside with her, refused to visit with their father Mr. Livesay during the winter holiday.
2. At the contempt hearing on or about January 2, 2018, Ms. Morrow's counsel appeared on her behalf and objected to the court's consideration of the contempt motion on the grounds that Ms. Morrow received insufficient notice of the hearing.
3. Respondent acknowledged counsel's objection as to timely notice of the hearing, but instead of continuing the matter, ordered Ms. Morrow and the twin boys to appear in court within thirty (30) minutes. At that time, Respondent stated that "I'm not saying that we're going through with the hearing, but you need to call your client and tell her to get here because I have a few choice words that I need to say to her . . . ." Respondent further stated that "the boys need to come . . . so that they can hear that their mother can go to jail for their behavior . . . "[a]nd [sic] if a child wants their parent to go to jail, I got a problem with that as well."
4. When Ms. Morrow and the teenage twin boys arrived, Respondent convened the hearing again and asked Ms. Morrow and her sons to stand, and swore them in as if to give testimony. At that time, Respondent began to question the two boys regarding their refusal to participate in the court ordered visitation with their father and inquired of the boys whether they understood that their mother could be incarcerated for contempt if they continued to resist visitation with their father.
5. After the boys told Respondent that they would rather have their mother go to jail than visit with their father, Respondent became deeply concerned and stated "my children would never allow me to go to jail for any reason whatsoever . . . I'm appalled because my children respect me so much they would never allow that to happen." Respondent vigorously questioned and explained the profound significance and detrimental impact their refusal to visit with their father would have on themselves and their mother.
6. After hearing from the boys that they had an understanding of the consequences of their refusal to comply with a court order, Respondent then ordered the bailiff to handcuff Ms. Morrow and place her in a holding cell. Ms. Morrow's counsel immediately objected to the decision to put her into custody because no contempt hearing had taken place and neither counsel nor his client were given an opportunity to be heard. Respondent nevertheless instructed the bailiff to take Ms. Morrow to a holding cell over her counsel's objections.
7. After Ms. Morrow was handcuffed and removed from the courtroom, Respondent again asked the twin boys to stand and then proceeded to convey to them how "appalled" she was at their behavior and how "ashamed" they should be of themselves for allowing their mother to go to jail for their behavior. During this colloquy, Respondent also lectured the twin boys about her personal experiences as a parent as well as her experiences as a certified juvenile judge. Respondent shared personal stories, as well as disturbing cases she had presided over where children had suffered unfortunate outcomes.
8. Respondent informed the boys that if their mother was found in contempt, she would go to jail for sixty (60) days and explained that meant they would be in their father's custody for that entire time. Respondent appealed to the boys' sense of reason by questioning whether it made more sense to spend six (6) days of visitation with their father as originally ordered, or sixty (60) days while their mother was incarcerated. The boys finally relented and agreed to visit their father.
9. After reaching this understanding with the boys, Respondent then asked to have Ms. Morrow brought back into the courtroom and commented "as far as your full-blown hearing, it is going to be continued. You two need to pick a date because I do not believe that you [had] enough time to truly prepare."
10. At the conclusion of the hearing, both parties thanked Respondent for her efforts trying to resolve the boys' refusal to visit with their father.
11. Respondent believed that her actions in ordering Ms. Morrow to be handcuffed and put into custody without a hearing, opportunity to be heard, or written order were appropriate to deescalate an unfortunate situation and resolve the visitation issues without further involving the Court. Respondent has previously placed litigants in temporary custody for a short "cooling-off period" without an opportunity to be heard and found that practice to be successful in getting litigants to comply with the Court's directives. After such temporary detention, ...

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