                  IN THE SUPREME COURT OF NORTH CAROLINA

                                      No. 370A16

                                   Filed 5 May 2017

IN RE: INQUIRY CONCERNING A JUDGE, NO. 15-222
DAVID Q. LABARRE, 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 26 September 2016

that Respondent David Q. LaBarre, an Emergency Judge of the General Court of

Justice, be censured for conduct in violation of Canons 1 and 2A 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 22 March 2017, 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 2(c) of the Rules for

Supreme Court Review of Recommendations of the Judicial Standards Commission

(2015).


      No counsel for Judicial Standards Commission or Respondent.


                                        ORDER
      The issue before this Court is whether Judge David Q. LaBarre (Respondent)

should be censured for violations of Canons 1 and 2A of the North Carolina Code of

Judicial Conduct and for conduct prejudicial to the administration of justice that
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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 censured by this Court.

      On 25 April 2016, the Commission Counsel filed a Statement of Charges

against Respondent alleging that he had

             engaged in conduct inappropriate to his judicial office
             when, on December 16, 2015, he drove his vehicle
             recklessly and while substantially impaired, putting at risk
             his own life and the lives of others [and that] Respondent’s
             belligerent, offensive, and denigrating behavior towards
             the responding law enforcement officers and emergency
             personnel was outrageous and unbecoming of a judicial
             officer, bringing into question whether it is appropriate for
             the Respondent to continue to serve as an Emergency
             Judge.

According to the allegations in the Statement of Charges, Respondent’s driving while

substantially impaired and belligerent behavior towards law enforcement officers

and emergency personnel violated Canons 1 and 2A of the North Carolina Code of

Judicial Conduct.   As a result, Commission Counsel asserted that Respondent’s

actions “constitute[d] conduct prejudicial to the administration of justice that brings

the judicial office into disrepute, or otherwise constitutes grounds for disciplinary

proceedings pursuant to Article 30 of Chapter 7A of the General Statutes of North

Carolina.”




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      On 3 June 2016, Respondent filed an answer in which he admitted the factual

allegations in the Statement of Charges and expressed remorse “for this

uncharacteristic lapse in judgment.” On 2 August 2016, Respondent and Commission

Counsel filed a number of joint evidentiary, factual, and disciplinary stipulations as

permitted by Commission Rule 22 that tended to support a decision to censure

Respondent.     Also, Respondent “voluntarily resigned his commission as an

Emergency Judge, and agree[d] not to seek another commission in the future.” On

12 August 2016, the Commission heard this matter.

      On 26 September 2016, the Commission filed a Recommendation of Judicial

Discipline, in which it made the following findings of fact:

                     1.    Respondent served honorably as a District
              Court Judge in Durham County from 1978 until 1994. He
              was appointed Chief District Court Judge on 3 January
              1985 and served as Chief District Court Judge of Durham
              County from 3 January 1985 through 12 January 1990.
              Respondent was elected and served honorably as a
              Superior Court Judge in Durham County from 1994 until
              his retirement in 2002. Respondent was commissioned by
              the Governor as an Emergency Superior Court Judge and
              an Emergency District Court Judge in January 2003 and
              January 2004 respectively.

                     2.     Shortly before 11:00 p.m. on 16 December
              2015, the Durham Police Department received a call from
              a concerned driver reporting a suspected drunk driver. The
              caller provided the license plate number and indicated that
              the vehicle was driving northbound on Hillandale Road in
              Durham, North Carolina. The caller also reported that this
              vehicle had nearly hit four (4) other vehicles.

                    3.     After checking the license plate number

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provided by the caller, Durham Police Officer J. A. Alcala
determined that the vehicle was registered to Respondent,
whose address was listed as near where the vehicle had
been observed. In response, Officer Alcala drove to the
registered address for the vehicle. Upon arriving at the
apartment complex where the vehicle was registered,
Officer Alcala observed a vehicle with the license plate
number that matched the number reported to the police.

        4.    As Officer Alcala approached the vehicle, he
noticed that the engine was still running and noted the
only occupant, later identified as Respondent, was a male
slumped over in his seat and who appeared to be sleeping
at the wheel. The officer also noticed that the vehicle was
still in drive with Respondent’s foot on the brake. After
knocking on the window and waking him, Respondent
opened the vehicle’s window, at which time Officer Alcala
detected a strong odor of alcohol emanating from
Respondent. Because of Respondent’s level of impairment,
another officer who arrived at the scene had to put the car
in park as Respondent was unable to do so himself.

       5.     When Respondent finally exited his vehicle,
he was unable to stand on his own without leaning against
the vehicle, his speech was slurred, and he was unable to
comprehend many of the officer’s questions or follow basic
instructions necessary for the officer to perform several
field sobriety tests.

       6.    At approximately 11:25 p.m., at the officer’s
request, Respondent submitted to an initial portable
breath test, which registered a positive result for the
presence of alcohol. When asked to provide the requisite
second sample, however, Respondent became belligerent,
used offensive and vulgar expletives towards the officer,
and refused to submit to a second test. Officer Alcala called
Durham County Emergency Medical Services (EMS) to the
scene to evaluate Respondent for a possible medical
emergency. While waiting for Durham County EMS to
arrive, Respondent continued to use vulgar language and
expletives towards the police officers at the scene as they


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attempted to help him remain steady.

       7.     While at the scene, Officer Alcala examined
Respondent’s vehicle and noticed fresh damage and paint
transfer on the right corner of the front bumper. The officer
also observed the rear left tire rim was cracked and the
front right tire had grey marks consistent with being
scraped on a curb. While the officer was inspecting the
vehicle, Respondent again directed expletives and rude
statements towards the officer. Respondent’s use of vulgar
language and expletives towards law enforcement officers
at the scene continued as they asked him routine questions
and attempted to help him contact a family member.

       8.    When EMS arrived, Respondent refused to
cooperate as they tried to take his vital signs, and he
directed the same vulgar language and expletives towards
EMS personnel as he had towards the police officers.
Respondent was transported by ambulance to the local
hospital after concerns were raised about his health and
level of impairment. Respondent’s offensive language
continued throughout the ride to the local hospital.

       9.     The ambulance carrying Respondent arrived
at the hospital at approximately 12:20 a.m. on 17
December 2015.        After his admission, Respondent
continued to use vulgar language and expletives towards
police officers who were present. In addition, Respondent
refused to submit to a blood draw to determine his level of
impairment, forcing Officer Alcala to secure a search
warrant to obtain a sample of Respondent’s blood. During
the interim period, Respondent again continued to direct
expletives towards other officers and workers trying to
assist him.

      10.   Officer Alcala returned to the hospital with a
search warrant for Respondent’s blood, and at
approximately 2:20 a.m., a sample of Respondent’s blood
was taken by a nurse and submitted to the N.C. State
Crime Laboratory for analysis. After the blood draw,
Respondent was issued a citation for driving while


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             impaired and released into the care of his family.

                    11.    A true and correct copy of the Durham County
             Police Report detailing this incident and Respondent’s
             arrest is attached to the Stipulation as Exhibit 1.

                   12.    The matter of State v. David Q. LaBarre,
             Durham County file number 15CR3988, was heard on 5
             February 2016. On that date, Respondent appeared with
             counsel, and entered a plea of guilty to driving while
             impaired. Respondent was placed on twelve (12) months of
             unsupervised probation, ordered to obtain a substance
             abuse assessment and complete any recommended
             education or treatment, pay a $100.00 fine, court costs and
             community service fee, to complete twenty-four (24) hours
             of community service, and comply with other conditions of
             probation.

                   13.    Respondent has paid all court ordered
             financial obligations, completed the court ordered
             substance    abuse    assessment   and    recommended
             education/treatment, and has completed the court ordered
             community service.

(Citations omitted.) Based upon these findings of fact, the Commission concluded as

a matter of law that:

                   A. Driving While Impaired

                    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

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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.     The clear, cogent and convincing evidence
supporting the Commission’s findings of fact show[s] that
Respondent violated the criminal laws of the State of North
Carolina by driving while impaired, thereby putting the
lives of others and himself at risk.

      4.     Respondent agrees that by driving while
impaired in violation of the criminal laws of the State of
North Carolina, he acted in violation of Canon 1 of the
North Carolina Code of Judicial Conduct and Canon 2A of
the North Carolina Code of Judicial Conduct, and engaged
in conduct prejudicial to the administration of justice that
brings the judicial office into disrepute in violation of N.C.
Gen. Stat. § 7A-376.

       5.     Based upon the agreement of Respondent and
the clear, cogent and convincing evidence supporting the
Commission’s findings of fact that Respondent violated the
laws of the State of North Carolina by driving while
impaired, the Commission concludes that Respondent: (1)
failed to personally observe standards of conduct to ensure
the integrity and independence of the judiciary is
preserved, in violation of Canon 1 of the North Carolina
Code of Judicial Conduct; and (2) failed to respect and
comply with the law and to conduct himself in a manner
that promotes public confidence in the integrity and
impartiality of the judiciary, in violation of Canon 2A of the
North Carolina Code of Judicial Conduct.

       6.     The Commission further concludes that the
facts and circumstances aggravate this misconduct to a
level warranting more than a private letter of caution.
Accordingly, Respondent’s violations of Canon 1 and Canon
2A of the Code of Judicial Conduct also amount to conduct
prejudicial to the administration of justice that brings the


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judicial office into disrepute, in violation of N.C. Gen. Stat.
§ 7A-376(b).

       B. Belligerent, Offensive and Denigrating
          Behavior Towards Law Enforcement and
          Emergency Personnel

      7.    The clear, cogent and convincing evidence
supporting the Commission’s findings of fact show[s] that
Respondent engaged in belligerent, offensive and
denigrating behavior towards local law enforcement and
emergency personnel as they executed their official duties
and attempted to assist Respondent during the incident
underlying these proceedings.

       8.      Respondent agrees that by his belligerent,
offensive, and denigrating behavior towards law
enforcement and emergency personnel, he acted in
violation of Canon 1 and Canon 2A of the North Carolina
Code of Judicial Conduct, and engaged in conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute in violation of N.C.G.S. §[ ]7A-
376.

       9.     Based upon the agreement of Respondent and
the clear, cogent and convincing evidence supporting the
Commission’s findings of fact, the Commission concludes
that Respondent: (1) failed to personally observe standards
of conduct to ensure the integrity and independence of the
judiciary is preserved, in violation of Canon 1 of the North
Carolina Code of Judicial Conduct and (2) failed to conduct
himself at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary,
in violation of Canon 2A of the North Carolina Code of
Judicial Conduct.

       10.   The Commission further concludes that the
facts and circumstances aggravate this misconduct to a
level warranting more than a private letter of caution.
Accordingly, Respondent’s violations of Canon 1 and Canon
2A of the Code of Judicial Conduct also amount to conduct


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             prejudicial to the administration of justice that brings the
             judicial office into disrepute, in violation of N.C. Gen. Stat.
             § 7A-376(b).

(Citations omitted.) Based upon these findings of fact and conclusions of law, the

Commission recommended that this Court censure Respondent for “driving while

impaired in violation of the laws of the State of North Carolina” and “engaging in

belligerent, offensive and denigrating behavior towards law enforcement and

emergency personnel of the State of North Carolina.” The Commission based this

recommendation on the Commission’s earlier findings and conclusions and the

following additional dispositional determinations:

                    1.    Respondent agreed to enter into the
             Stipulation to bring closure to this matter and because of
             his concern for protecting the integrity of the court system.
             Respondent understands the negative impact his actions
             have had on the integrity and impartiality of the judiciary.
             Even after an esteemed judicial career spanning thirty-
             seven (37) years, Respondent acknowledges his behavior
             during this single incident has jeopardized the public’s
             confidence in his ability to continue to serve fairly and
             impartially.

                   2.     Respondent has voluntarily resigned his
             commission as an Emergency Judge, and agrees not to seek
             another commission in the future, in lieu of facing a more
             severe disciplinary recommendation.

                   3.    Respondent has an excellent reputation in his
             community. The actions identified by the Commission as
             misconduct by Respondent appear to be isolated and do not
             form any sort of recurring pattern of misconduct.
             Respondent has been fully cooperative with the
             Commission’s    investigation,  voluntarily     providing
             information about the incident and fully and openly

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             admitting error and remorse.

                    4.    Respondent’s record of service to the
             judiciary, the profession and the community at large is
             otherwise exemplary. Respondent has been active in
             community and civic affairs, including service as chairman
             of the Deacons and chairman of the Trustees at Greystone
             Baptist Church.

                    5.     Respondent     agrees       to   accept      a
             recommendation of censure from the Commission and
             acknowledges that the conduct set out in the stipulation
             establishes by clear and convincing evidence that his
             conduct is in violation of the North Carolina Code of
             Judicial Conduct and is prejudicial to the administration of
             justice that brings the judicial office into disrepute in
             violation of North Carolina General Statute § 7A-376(b).

                    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 seven Commission
             members present at the hearing of this matter concur in
             this recommendation to censure Respondent.

(Citations omitted.)


      When reviewing a recommendation from the Commission in a judicial

discipline proceeding, “the Supreme Court ‘acts as a court of original jurisdiction,

rather than in its typical capacity as an appellate court.’ ” In re Mack, ___ N.C. ___,

___, 794 S.E.2d 266, 273 (2016) (order) (quoting In re Hartsfield, 365 N.C. 418, 428,

722 S.E.2d 496, 503 (2012) (order)). In conducting an independent evaluation of the

evidence, “[w]e have discretion to ‘adopt the Commission’s findings of fact if they are

supported by clear and convincing evidence, or [we] may make [our] own findings.’ ”


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Id. at ___, 794 S.E.2d at 273 (quoting In re Hartsfield, 365 N.C. at 428, 722 S.E.2d at

503 (alterations in original)). “The scope of our review is to ‘first determine if the

Commission’s findings of fact are adequately supported by clear and convincing

evidence, and in turn, whether those findings support its conclusions of law.’ ” Id. at

___, 794 S.E.2d at 274 (quoting In re Hartsfield, 365 N.C. at 429, 722 S.E.2d at 503).


      After careful review, this Court concludes that the Commission’s findings of

fact, including the dispositional determinations set out above, are supported by clear,

cogent, and convincing evidence in the record. In addition, we conclude that the

Commission’s findings of fact support its conclusions of law. As a result, we accept

the Commission’s findings and conclusions and adopt them as our own. Based upon

those findings and conclusions and the recommendation of the Commission, we

conclude and adjudge that Respondent should be censured.


      Therefore, pursuant to N.C.G.S. §§ 7A-376(b) and -377(a5), it is ordered that

Respondent David Q. LaBarre be CENSURED for violations of Canons 1 and 2A 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(b).


      By order of the Court in Conference, this the 3rd day of May, 2017.

                                                 s/Michael R. Morgan
                                                 For the Court


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      WITNESS my hand and the seal of the Supreme Court of North Carolina, this

the 5th day of May, 2017.


                                             Clerk of the Supreme Court


                                             s/J. Bryan Boyd
                                             Clerk




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