               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 419A18

                                 Filed 10 May 2019
IN RE INQUIRY CONCERNING A JUDGE, NO. 17-143
APRIL M. SMITH, 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 7 November 2018

that Respondent April M. Smith, a Judge of the General Court of Justice, District

Court Division, Judicial District Twelve, be publicly reprimanded for conduct in

violation of Canons 1, 2A, 3A(3), 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 4 March 2019, 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


      The issue before the Court is whether District Court Judge April M. Smith,

Respondent, should be publicly reprimanded for violations of Canons 1, 2A, 3A(3),

and 3B(1) of the North Carolina Code of Judicial Conduct amounting to conduct
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                                    Order of the Court



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 publicly reprimanded by this

Court.

         On 20 February 2018, Commission Counsel filed a Statement of Charges

against Respondent alleging that she had engaged in conduct inappropriate to her

office by demonstrating a lack of respect for the judicial office and for the Chief

District Judge; by failing to facilitate the administrative duties of the Chief Judge

and court staff; by repeatedly and regularly making disparaging comments about the

Chief Judge to other judges, judicial staff, clerical staff, and members of the local bar;

and by failing to diligently discharge her duties, bringing the judicial office into

disrepute. Respondent fully cooperated with the Commission’s inquiry into this

matter.      In the Statement of Charges, Commission Counsel asserted that

Respondent’s actions constituted conduct inappropriate to her judicial office and

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 9 April 2018. On 20 August 2018, Commission

Counsel and Respondent entered into a Stipulation and Agreement for Stated

Disposition (the Stipulation) containing joint evidentiary, factual, and disciplinary


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stipulations as permitted by Commission Rule 22 that tended to support a decision

to publicly reprimand Respondent. The Stipulation was filed with the Commission

on 22 August 2018. The Commission heard this matter on 5 October and entered its

recommendation on 7 November 2018, which contains the following stipulated

findings of fact:

                     1.    Respondent is one (1) of ten (10) judges of the
              General Court of Justice, District Court Division, Judicial
              District 12 (Cumberland County). She was elected in
              November 2014 at thirty-five (35) years old along with two
              (2) other district court judges. In 2017, another district
              court judge was elected for a total of ten (10) judges. There
              are eight (8) courtrooms available for district court
              proceedings in the Cumberland County Courthouse.
                     2.    The current Chief District Court Judge was
              elected more than twenty (20) years ago and was appointed
              Chief Judge commencing January 1, 2015 upon the
              retirement of the previous Chief District Court Judge.
              After Respondent’s election, the Chief Judge assigned
              Respondent primarily to serve as one of the court’s family
              court judges and to hear domestic violence matters,
              although she was also assigned to hear various criminal
              cases.
                     3.    At the start of 2015, when Respondent began
              her service as a judge, she believed her relationship with
              the Chief Judge to be pleasant and collegial. By the end of
              2015, however, Respondent became frustrated with the
              Chief Judge based on scheduling and communication
              differences.
                     4.    Beginning in 2016, Respondent also began
              experiencing serious health issues that required
              Respondent to attend frequent medical appointments.
              Over a period of time, Respondent’s health deteriorated as
              her physicians attempted to determine what medical
              condition she was dealing with. In 2017, Respondent was
              diagnosed with two (2) chronic autoimmune diseases—
              Systemic Lupus Erythematosus and Mixed Connective
              Tissue Disorder. These ·two conditions have required


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Respondent to receive various medical treatments
including chemotherapy and she is subject to experiencing
“flares.” As a result of these health issues, Respondent has
taken multiple leaves of absence. The Chief Judge has
accommodated all of Respondent’s requests for medical
leaves of absence pursuant to physician orders.
       5.     Thereafter, Respondent’s relationship with
the Chief Judge deteriorated further because she believed
that the Chief Judge was subjecting her to unfair
treatment in court assignments. Among other things:
                         a. Respondent perceived that the
              Chief Judge assigned her more often to
              Courtroom 3A than other judges. Courtroom
              3A is considered a difficult courtroom because
              judges who preside there must hear not only
              their regularly scheduled calendar, but also
              accept walk-in domestic violence, temporary
              custody and other cases.           This makes
              presiding in Courtroom 3A a long and often
              times stressful day.
                         b. Respondent also believed that
              she was being assigned disproportionately to
              Courtroom 3A on Fridays after concluding
              family court trials and hearings earlier in the
              week, when other family law judges were not.
                         c. Respondent believed that the
              Chief Judge provided other judges with more
              unassigned days than were provided to her.
                         d. Respondent believed that the
              Chief Judge unfairly assigned her to cover
              other courtrooms when her special sessions
              concluded while not requiring the same of
              other judges.
                         e. Respondent believed the Chief
              Judge failed to accommodate her requests for
              unassigned days or time off, either to attend
              medical appointments, preside over swearing-
              in ceremonies, attend educational programs
              for judges, or take vacation time.
       6.     As a result of the perceptions noted above,
Respondent began complaining about her court
assignments, unassigned days, and her opinion that the
Chief Judge treated her unfairly, to other judges in her

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                       Order of the Court



district, retired judges, court staff, and local attorneys, all
of whom she considered to be her friends. Respondent also
suggested to her case manager and a courtroom clerk that
the Chief Judge’s decisions regarding her schedule were
based in part on racial prejudice.
       7.      Respondent’s frustration about her schedule
and her resentment towards the Chief Judge became
known throughout the courthouse, notwithstanding the
fact that Respondent believed these were private
conversations among friends.
       8.      Respondent at various times sought guidance
and advice from the former Chief Judge about how to deal
with her relationship with the Chief Judge. In early 2017,
in an attempt to seek guidance on how to address what she
perceived to be unfair treatment by the Chief Judge,
Respondent contacted the North Carolina Administrative
Office of the Courts and the Judicial Standards
Commission regarding her concerns and frustration about
her court schedule and perceived treatment by the Chief
Judge. At or around the same time, the Chief Judge
independently reached out to the Commission seeking
guidance to resolve the situation.
       9.      In early March 2017, with the consent of both
Respondent and the Chief Judge, the Commission referred
the matter to the Chief Justice’s Commission on
Professionalism (CJCP) to assist with resolving the
professional differences between the two judges. Shortly
thereafter, the Executive Director of the CJCP notified the
Commission that his effort to meet with Respondent had
failed because Respondent had to unexpectedly cancel their
initial meeting due to her deteriorating health condition
and necessity of going on medical leave for 30 days.
Respondent was advised to contact the CJCP Executive
Director to reschedule the meeting, but had not done so by
the time the Executive Director retired in the summer of
2017.
       10.     Notwithstanding Respondent’s complaints of
an unfair schedule, court statistics and records
demonstrate that Respondent was scheduled for and
actually presided over fewer court sessions than most of
her colleagues in 2016 and 2017. These same statistics and
records further show that Respondent had more days off
the bench (either as unassigned or personal days off) than

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                      Order of the Court



any other judge in the district in 2015 and 2017, and had
the second most days off the bench in 2016 (the most days
off was for a colleague undergoing cancer treatment).
       11.    With respect to Courtroom 3A, court records
show that Respondent was scheduled for the most court
sessions in Courtroom 3A in 2015. That schedule, however,
was set in part by the former Chief Judge who left office at
the end of 2014, and not the current Chief Judge about
whom Respondent repeatedly complains. In addition, the
higher number of assignments to Courtroom 3A in 2015
was a reflection not of the Chief Judge’s bias, but reflected
a pattern of assigning judges based on existing experience,
the role of certain judges in presiding over specialized
courts, and the necessity of minimizing potential conflicts
of interests given Respondent’s status as [a] new judge
with connections to former clients and certain attorneys.
In 2016 and 2017, when the current Chief Judge prepared
the entire schedule, Respondent was scheduled, and
actually presided, in Courtroom 3A fewer times than
several of her colleagues.
       12.    The Chief Judge similarly accommodated,
and continues to accommodate, Respondent’s physician
ordered medical leaves of absence due to her illness and
prepares the court schedules accordingly.
       13.    The Commission’s investigation found that
Respondent also engaged in conduct that created a
perception that her judicial duties did not take precedence
over her personal commitments and work schedule
preferences. While Respondent contends that she works
diligently to resolve cases and that this periodically results
in her concluding the court’s business early, the
Commission’s investigation identified examples of conduct
to include the following:
                        a. Certain        attorneys       that
              frequently appeared before Respondent
              reported to the Commission that Respondent
              regularly rushed to conclude cases to avoid
              working the full afternoon or the next day.
              This caused some attorneys to have concerns
              about a full and fair opportunity to be heard,
              and it placed administrative burdens on court
              staff.


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                        b. Respondent admits that she
             often did not take breaks at any specific
             interval and instead preferred to finish her
             cases. Respondent encouraged court staff to
             leave their duty stations to take breaks while
             court was still in session provided that the
             electronic recording equipment remained on.
                        c. Several attorneys reported to
             the Commission that in open court,
             Respondent would announce that she was
             adjourning court early for personal
             appointments, such as for hair and nail salon
             visits or to spend time with her child.
                        d. Respondent’s           courtroom
             statements and conduct, coupled with her
             repeated complaints about her schedule and
             the Chief Judge, resulted in an unfavorable
             cartoon     about    Respondent     circulating
             amongst the bar.
       14.   Because of these concerns, several members
of the domestic bar requested that the Chief Judge remove
Respondent from domestic cases. In addition, several
judicial and court colleagues brought to the Chief Judge’s
attention concerns regarding Respondent’s work habits
and courtroom conduct, especially the frequency of
concluding court sessions early and the perceived
unwillingness of Respondent to assist other family court
judges.
       15.   After these concerns were brought to his
attention, the Chief Judge used his administrative and
scheduling authority to reassign Respondent to cover other
courtrooms if she concluded her calendars early and had
time available that was not otherwise scheduled for time
off or unassigned days. The Chief Judge did not take this
approach with other domestic judges because he found that
they routinely offered to help in other courtrooms or
checked in with him when they finished early without
prompting.
       16.   Respondent now acknowledges that her
frequent complaints to other judges, court personnel, and
members of the local bar regarding her perception that the
Chief Judge was being unfair and biased towards her
created unintended consequences, including harm to

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                                    Order of the Court



              collegial relations. Respondent further recognizes that
              even if intended to be private conversations, the
              cumulative impact of voicing her internal grievance with a
              colleague to so many people within the courthouse was
              harmful to public confidence in the administration of the
              court.
                     17.    Respondent also recognizes that her conduct
              and statements in the courtroom between 2015 and 2017
              were perceived by some attorneys and court staff as
              indicating a desire to avoid her judicial duties to
              accommodate her own scheduling preferences and personal
              circumstances.
(Citations to pages of the Stipulation omitted.)

        Based on these findings of fact, the Commission concluded as a matter of law

that:

                     1.     Canon 1 of the Code of Judicial Conduct sets
              forth the broad principle that “[a] judge should uphold the
              integrity and independence of the judiciary.” To do so,
              Canon 1 requires that a “judge should participate in
              establishing, maintaining, and enforcing, and should
              personally observe, appropriate standards of conduct to
              ensure that the integrity and independence of the judiciary
              shall be preserved.”
                     2.     Canon 2 of the Code of Judicial Conduct
              generally mandates that “[a] judge should avoid
              impropriety in all the judge’s activities.” Canon 2A
              specifies that “[a] judge should respect and comply with the
              law and should conduct himself/herself at all times in a
              manner that promotes public confidence in the integrity
              and impartiality of the judiciary.”
                     3.     In addition, Canon 3A(3) requires a judge to
              “be patient, dignified and courteous to litigants, jurors,
              witnesses, lawyers and others with whom the judge deals
              in the judge’s official capacity.”
                     4.     In accepting this Stipulation and making a
              recommendation of public reprimand, the Commission
              distinguishes the Supreme Court’s decision in In re Belk,
              364 N.C. 114, 690 S.E.2d 685 (2012), which found that a
              single, isolated confrontation between a district court judge

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                      Order of the Court



and his or her chief judge, after which the relationship
returned to normal, did not support a finding of a violation
of Canons 1, 2A, 3A(3) or N.C.G.S. § 7A-376. See id. at 126,
690 S.E.2d at 693 (“[w]hile a district court judge must
respect the Chief District Court Judge’s duties and
authority, the nature of the relationship between
coworkers may at times produce episodes of contention,
disagreement, and frustration . . . [and] discipline is not
normally imposed for a single incident of improper
behavior exhibited towards a coworker.”).
        5.     Unlike Belk, Respondent’s personal conduct
in this case went far beyond a single confrontation with her
Chief Judge about her court assignments.                  The
Commission’s findings of fact, as supported by the
Stipulation, show that Respondent’s conduct involved a
pattern of pervasive complaints attacking the personal
integrity and fairness of the Chief Judge to anyone who
would listen, including other active and retired judges,
court staff, local attorneys, the Administrative Office of the
Courts and the Judicial Standards Commission. She also
suggested to court personnel working with the Chief Judge
that his scheduling decisions towards her were racially
motivated. At the same time, the Commission’s findings of
fact as agreed to by Respondent show no evidence of racial
bias or that Respondent’s schedule was unfair or
burdensome as compared to other judges. On the contrary,
the findings of fact establish that the Chief Judge used
accepted and reasonable practices in scheduling judges and
that the Chief Judge did not assign Respondent to preside
in Courtroom 3A more often than her colleagues. Even
when she did preside, she admittedly rushed through court
sessions to the detriment of the parties and even courtroom
staff, whom she would direct to leave their duty stations in
the courtroom during ongoing court proceedings if they
needed or were entitled to a break.               Moreover,
Respondent’s conduct resulted in requests from the local
bar to remove her from domestic courtrooms and the
circulation of a cartoon mocking her poor work habits.
Respondent now acknowledges that the cumulative impact
of her continued conduct in complaining that the Chief
Judge was biased and unfair was harmful to public
confidence in the administration of the court.


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       6.     Based on the facts contained in the
Stipulation and accepted as the findings of fact herein, the
Commission thus concludes as a matter of law that
Respondent failed to personally observe appropriate
standards of conduct necessary to ensure that the integrity
of the judiciary is preserved, in violation of Canon 1 of the
North Carolina Code of Judicial Conduct; failed to conduct
herself in a manner that promotes public confidence in the
integrity of the judiciary, in violation of Canon 2A of the
North Carolina Code of Judicial Conduct; and failed to be
“patient, dignified and courteous” to her colleagues, the
Chief Judge, and those who appeared before her in
violation of Canon 3A(3) of the North Carolina Code of
Judicial Conduct.
       7.     In addition to the conclusions of law as to
Canons 1, 2A and 3A(3), the Commission also concludes as
a matter of law that Respondent violated Canon 3B(1) of
the North Carolina Code of Judicial Conduct, which
requires a judge to “diligently discharge the judge’s
administrative responsibilities, maintain professional
competence in judicial administration, and facilitate the
performance of the administrative responsibilities of other
judges and court officials.” This conclusion is based upon
(1) Respondent’s conduct in consistently complaining about
having to preside in court too often, and then when she did
preside, at times directing court staff to leave their duty
stations while court was still in session in order to take
necessary break[s]; and (2) unfairly impugning the Chief
Judge’s reputation and interfering with the Chief Judge’s
duties in making court assignments through unjustified
attacks on his impartiality and integrity, and disrupting
the professionalism, cooperation and collegiality that are
the hallmarks of judicial service.
       8.     The Commission further finds               that
Respondent’s inexperience and status as a new judge does
not excuse her from strict adherence to the ethical
standards embodied in the North Carolina Code of Judicial
Conduct. As the North Carolina Supreme Court stated in
In re Badgett, 362 N.C. 482, 666 S.E.2d 743 (2008), “[a] trial
judge cannot rely on his [or her] inexperience or lack of
training to excuse acts which tend to bring the judicial
office into disrepute.” Id. at 489, 666 S.E.2d at 747-48
(internal quotations omitted). As indicated to Respondent

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             during the hearing of this matter, in assuming the duties
             of a judge of the State of North Carolina, Respondent is
             subject to restrictions on her personal and professional
             conduct that a private citizen would find burdensome and
             must accept those burdens gladly and willingly given the
             enormous power and responsibilities of the judicial office.
                    9.      Based on the foregoing, the Commission
             further concludes that Respondent’s violations of the Code
             of Judicial Conduct amount to conduct prejudicial to the
             administration of justice that brings the judicial office into
             disrepute in violation of N.C. Gen. Stat. § 7A-376(b). See
             also Code of Judicial Conduct, Preamble (“[a] violation of
             this Code of Judicial Conduct may be deemed conduct
             prejudicial to the administration of justice that brings the
             judicial office into disrepute”). In reflecting on her conduct,
             Respondent also agrees that based on the totality of the
             circumstances, she violated the foregoing provisions of the
             North Carolina Code of Judicial Conduct and N.C. Gen.
             Stat. § 7A-376.
(Brackets in original) (Citations to pages of the Stipulation omitted).

      Based on these Findings of Fact and Conclusions of Law, the Commission

recommended that this Court publicly reprimand Respondent. The Commission

based this recommendation on its earlier findings and conclusions and the following

additional dispositional determinations:

                    1.     The Commission finds that as a mitigating
             factor, Respondent has agreed to seek the assistance of the
             Chief Justice’s Commission on Professionalism (CJCP) to
             assist her in developing a more professional and
             cooperative working relationship with the Chief Judge and
             her judicial and court colleagues. The Commission notes
             that its first effort to resolve the Respondent’s concerns
             about her schedule and working with the Chief Judge were
             referred to the CJCP. Regrettably, Respondent did not
             follow through in that process for months after she
             returned from her medical leave of absence, at which time
             she continued her pattern of complaining about her work
             schedule and the Chief Judge. It is the Commission’s hope

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that this time, Respondent will fully engage in the
opportunity to improve her professionalism and
understanding of the serious implications of her conduct on
public confidence in the administration of justice.
       2.      The Commission finds as an additional
mitigating factor that Respondent has expressed regret
over the negative impact that these matters have had on
her reputation as a judge, the reputation of the Chief
Judge, and the court in which she serves, and that she has
a strong commitment to and leadership in support of the
community she serves.
       3.      In making a recommendation of public
reprimand, the Commission finds that this sanction is
consistent with N.C. Gen. Stat. § 7A-374.2(7), which
provides that a public reprimand is appropriate where “a
judge has violated the Code of Judicial Conduct and has
engaged in conduct prejudicial to the administration of
justice, but that misconduct is minor.” Although the
Commission has some concern that the misconduct at issue
is more than “minor,” a more severe sanction would require
evidence that Respondent willfully engaged in misconduct
prejudicial to the administration of justice. See N.C. Gen.
Stat. § 7A-374.2(1) (definition of censure); see also In re
Nowell, 293 N.C. 235, 248, 237 S.E.2d 246, 255 (1977)
(“Wilful misconduct in office is the improper or wrongful
use of the power of his office by a judge acting intentionally,
or with gross unconcern for his conduct, and generally in
bad faith . . . .”) (internal citations omitted). Given the
agreed upon facts contained in the Stipulation, the
Commission concludes that a public reprimand is the most
appropriate sanction.
       4.      The       Commission       and      Respondent
acknowledge the ultimate jurisdiction for the discipline of
judges is vested in the North Carolina Supreme Court
pursuant to Chapter 7A, Article 30 of the North Carolina
General Statutes, which may either accept, reject or modify
any disciplinary recommendation from the Commission.
       5.      The Commission and Respondent also
acknowledge and agree that although the Respondent has
raised her medical issues as a mitigating factor, this
disciplinary action is based on misconduct alone as set
forth herein and does not bar or limit any future action by
the Commission to institute proceedings against

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             Respondent pursuant to N.C. Gen. Stat. § 7A-376(c) if it
             appears that Respondent suffers from a physical or mental
             incapacity interfering with the performance of her judicial
             duties.
                    6.    Pursuant to N.C. Gen. Stat. § 7A-377(a5),
             which requires that at least five members of the
             Commission concur in a recommendation of public
             discipline to the Supreme Court, all six Commission
             members present at the hearing of this matter concur in
             this    recommendation      to    publicly    reprimand
             Respondent.
(Citations to pages of the Stipulation omitted.)
      “The Supreme Court ‘acts as a court of original jurisdiction, rather than in its

typical capacity as an appellate court’ when reviewing a recommendation from the

Commission.” In re Hartsfield, 365 N.C. 418, 428, 722 S.E.2d 496, 503 (2012) (order)

(quoting In re Badgett, 362 N.C. 202, 207, 657 S.E.2d 346, 349 (2008) (order)). Neither

the Commission’s findings of fact nor its conclusions of law are binding, but they may

be adopted by this Court. Id. at 428, 722 S.E.2d at 503 (citing In re Badgett, 362 N.C.

at 206, 657 S.E.2d at 349). If the Commission’s findings are adequately supported by

clear and convincing evidence, the Court must determine whether those findings

support the Commission’s conclusions of law. Id. at 429, 722 S.E.2d at 503 (citing In

re Badgett, 362 N.C. at 207, 657 S.E.2d at 349).

      The Commission found the stipulated facts to be supported by “clear, cogent

and convincing evidence.” In executing the Stipulation, Respondent agreed that

those facts and information would serve as the evidentiary and factual basis for the

Commission’s recommendation, and Respondent does not contest the findings or

conclusions made by the Commission. We agree that the Commission’s findings are

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supported by clear, cogent, and convincing evidence, and we now adopt them as our

own. Furthermore, we agree with the Commission’s conclusions that Respondent’s

conduct violates Canons 1, 2A, 3A(3), and 3B(1) of the North Carolina Code of Judicial

Conduct, and is prejudicial to the administration of justice, thus bringing the judicial

office into disrepute in violation of N.C.G.S. § 7A-376.

      This Court is not bound by the recommendations of the Commission. Id. at

428-29, 722 S.E.2d at 503. Rather, we may exercise our own judgment in arriving at

a disciplinary decision in light of Respondent’s violations of several canons of the

North Carolina Code of Judicial Conduct. Id. at 429, 722 S.E.2d at 503. Accordingly,

“[w]e may adopt the Commission’s recommendation, or we may impose a lesser or

more severe sanction.” Id. at 429, 722 S.E.2d at 503. The Commission recommended

that Respondent be publicly reprimanded.            Respondent does not contest the

Commission’s findings of fact or conclusions of law and voluntarily entered into the

Stipulation with the understanding that the Commission’s recommendation would be

a public reprimand.

      We appreciate Respondent’s cooperation and candor with the Commission

throughout these proceedings. Furthermore, we recognize Respondent’s expressions

of remorse and her willingness to seek assistance from the CJCP to improve her

professional reputation and repair her relationship with the Chief Judge. Weighing

the severity of Respondent’s misconduct against her candor and cooperation, we

conclude that the Commission’s recommended public reprimand is appropriate.


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      Therefore, the Supreme Court of North Carolina orders that Respondent April

M. Smith be PUBLICLY REPRIMANDED for conduct in violation of Canons 1, 2A,

3A(3), 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.

      By order of the Court in Conference, this the 10th day of May, 2019.

                                            s/Earls, J.
                                            For the Court


      Justice DAVIS did not participate in the consideration or decision of this case.


      WITNESS my hand and the seal of the Supreme Court of North Carolina, this
the 10th day of May, 2019.


                                            AMY L. FUNDERBURK
                                            Clerk of the Supreme Court


                                            s/M.C. Hackney
                                            Assistant Clerk




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