              IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 220A14
IN RE: INQUIRY CONCERNING A JUDGE, NO. 13-127
BRENDA G. BRANCH, Respondent
                             Filed 23 January 2015



      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 6 June 2014

that respondent Brenda G. Branch, a Judge of the General Court of Justice, District

Court Division 6A, State of North Carolina, be publicly reprimanded for conduct in

violation of Canons 1, 2A, 3A(1), 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(b). Calendered for

argument in the Supreme Court on 6 October 2014, 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.


      No counsel for Judicial Standards Commission or respondent.


                                      ORDER



      By the recommendation of the North Carolina Judicial Standards

Commission (Commission), the issue before this Court is whether Brenda G. Branch

(respondent), a judge of the General Court of Justice, District Court Division,
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                                  Opinion of the Court



Judicial District 6A, should be publicly reprimanded for conduct in violation of

Canons 1, 2A, 3A(1), and 3A(4) of the North Carolina Code of Judicial Conduct and

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 waived her right to

a formal hearing, and she does not contest the facts or oppose the Commission’s

recommendation that she be publicly reprimanded.

      On 13 January 2014, the Commission’s counsel filed a statement of charges

alleging that respondent had engaged in inappropriate conduct while presiding over

divorce proceedings in which Sergeant First Class Jason Foster (Foster) was the

defendant.   Foster was deployed overseas at the time of the proceedings.       The

statement of charges asserted that respondent denied Foster a fair trial in clear

violation of the Servicemember’s Civil Relief Act of 2003.     Respondent filed an

answer on 18 February 2014, which was timely received by the Commission. On 9

May 2014, the Commission held a formal hearing of the matter at the North

Carolina Court of Appeals. Counsel for the Commission and counsel for respondent

presented evidence at the hearing by stipulation. After reviewing all the evidence

and hearing oral arguments from counsel, on 6 June 2014, the Commission made its

recommendation, which stated the following findings of fact:

1. The investigative panel of the Commission alleged that, in the matter of Halifax

   County File No. 12-CVD-733, Foster v. Foster, the Respondent engaged in

   conduct inappropriate to her judicial office by:

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     a. making inadequate inquiry into the rights afforded to Defendant Jason

        Foster, a litigant protected under the Servicemember’s Civil Relief Act of

        2003, 50 U.S.C. App. §§501-597b (hereafter “the SCRA”), and failing to

        maintain adequate professional competence in this area of the law;

     b. imprudently relying upon the counsel for the opposing party in the matter

        for a determination of the rights afforded to Defendant Jason Foster

        under the SCRA, without sufficiently performing her own independent

        inquiry and research into the law, and allowing opposing counsel to

        present such advice and opinion on the law to the Court outside of the

        presence of Defendant or anyone appointed as legal representation for

        Defendant; and,

     c. inappropriately denying Defendant Jason Foster the appointment of legal

        representation guaranteed under the SCRA, thereby denying him his full

        right to be heard according to the law.

2. In the matter of Halifax County File No. 12-CVD-733, Foster v. Foster,

  Defendant Jason W. Foster was, at the time of the service of a civil complaint for

  child custody, child support, alimony, equitable distribution, post-separation

  support, and attorney fees, serving as an Active Duty Soldier of the rank of

  Sergeant First Class in the United States Army, stationed in Daegu, South

  Korea.




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                                  Opinion of the Court



3. In a letter to the Court dated 16 July 2012 and filed 26 July 2012, Defendant

   Jason Foster, in response to the service of the complaint, wrote Respondent to

   request a stay of proceedings pursuant to the SCRA and claiming that his

   military service precluded him from participating in court proceedings until at

   least 30 April 2013.   Defendant, in his letter, wrote that “legal counsel informs

   me that federal law requires a stay of proceedings for a minimum of 90 days for

   service members on active duty” and cited the SCRA. Defendant received this

   advice from a Judge Adjutant General officer stationed in Daegu, Korea.

4. In a separate letter also dated 16 July 2012 and filed 26 July 2012, Defendant’s

   commanding officer also wrote the court to verify that Defendant’s military

   service would preclude his participation in court proceedings until at least 30

   April 2013 and to also request a stay of proceedings until that time, personally

   ensuring that Defendant would be able to participate in the next scheduled

   proceeding after 30 April 2013. The commanding officer, in his letter, wrote that

   he was “advised by legal counsel that federal law allows a stay of proceedings for

   service members on active duty when their ability to defend themselves is

   materially affected by their material service” and cited the SCRA.            The

   commanding officer’s letter explained “Until this date [30 April 2013], SFC

   Jason Foster is needed by this unit because he is essential to the mission” and

   further explained “In this instance, SFC’s critical role in the national security

   mission of this command precludes his participation in court proceedings until


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                                   Opinion of the Court



   April 30th, 2013. He will be unable to present any defense at all due to his

   duties.”

5. The stay proposed in the letters from Defendant and Defendant’s commanding

   officer was for approximately nine months.

6. The SCRA states in plain language that, if it appears that Defendant is in

   military service, the court may not enter a default judgment against the absent

   member until after the court appoints an attorney to represent Defendant.

7. Sometime between the 6 August 2012 and 8 August 2012 term of Halifax County

   Family Court, counsel for Plaintiff in this matter requested an order from

   Respondent seeking further information from Defendant concerning his status

   under the SCRA and his future availability before ruling on his request to stay

   the proceedings.

8. In a hearing on Plaintiff’s attorney’s request, Respondent asked Plaintiff’s

   attorney to provide supporting documents for her request that Defendant’s stay

   be denied. Plaintiff’s attorney was allowed to present arguments and evidence

   challenging the validity of Defendant’s claim for a stay.   Defendant was not

   present and was not represented at this proceeding. Respondent did not appoint

   counsel for Defendant and cites the letters from Defendant and his Commanding

   officer referring to “the advice of counsel” as evidence.

9. Plaintiff’s attorney provided Respondent with an undated, uncited publication,

   entitled “CROSSING THE MILITARY MINEFIELD: A JUDGE’S GUIDE TO


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   MILITARY DIVORCE IN NORTH CAROLINA” by Mark E. Sullivan, discussing

   the SCRA and ways to challenge the claims of servicemen under the SCRA,

   specifically detailing ways that a judge could deny a serviceman a stay, when so

   requested, by finding that the serviceman did not show “good faith and

   diligence” when responding to a court action. Here, Defendant was not properly

   served with any motion or objection from Plaintiff’s counsel, had no notice of her

   objections to his request for a stay, and was not provided with the documents

   Plaintiff’s counsel presented to Respondent, which Respondent used in

   consideration of the Plaintiff’s counsel’s objections.

10. The same article presented to Respondent by Plaintiff’s attorney also says in

   plain language that counsel should be appointed on behalf of an absent

   serviceman before the entry of a default judgment.

11. Respondent, relying upon the information presented by Plaintiff’s attorney,

   consented to the order requested by Plaintiff’s attorney and tasked Plaintiff’s

   attorney with drafting the order requesting more information from Defendant.

   Respondent entered the order on 4 September 2012 declaring that the

   information provided by Defendant and his commanding officer was insufficient

   to justify a request for a stay, and gave Defendant a deadline of 1 October 2012

   to provide further justification for his request for a stay. Tracking information

   reveals that order was not received by Defendant until 24 September 2012, less

   than one week before the deadline presented in the order.


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                                  Opinion of the Court



12. In response to the 4 September 2012 order, neither Defendant, nor anyone

   representing Defendant, replied to Plaintiff’s attorney’s inquiries for more

   information concerning his claim that he would be unable to participate in the

   scheduled court proceedings.     Defendant claims that information about his

   military mission was confidential and that he could not provide that information

   to the Court.

13. On 5 November 2012, Respondent denied Defendant’s request for a stay, citing

   “a lack of good faith and due diligence” by Defendant in failing to respond to the

   Court’s efforts to get more information. Respondent decided that the failure of

   Defendant to respond to the order for more information was “a willful and direct

   intention to maneuver and prolong the case at the Defendant’s will for as long as

   the Defendant saw fit without regard to the Plaintiff.”

14. In subsequent legal proceedings on 3 December 2012 and 4 March 2013

   Respondent entered default judgments against Defendant. Defendant was not

   present and was not represented at any of these proceedings.

15. Nowhere in the case file for Halifax County File No. 12-CVD-733, prior to or

   concurrent with the entry of the aforementioned default judgments, is there any

   notice of representation, appointment of counsel, or any other filings,

   correspondence, or similar documentary evidence to suggest that Defendant was

   represented in this matter by counsel.        Defendant retained Mr. William T.




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                                  Opinion of the Court



   Skinner IV as counsel on 6 May 2013, within a month of his return to North

   Carolina.

16. Despite the absence of any legal filing or notice or representation on behalf of

   Defendant, Respondent claims that she determined that Defendant was

   represented by counsel based on the following statement in his letter requesting

   the stay:   “Legal counsel informs me that federal law requires a stay of

   proceedings for a minimum of 90 days for service members on active duty (50

   U.S.C. App. 522(a) (1)).” Nowhere in Defendant’s is [sic] letter, or the letter from

   his commanding officer, is any legal counsel named nor is any contact

   information provided for any legal counsel. Nothing in the [sic] either letter

   suggests that any counsel referred to is or was licensed to practice in the state of

   North Carolina.

17. The actions identified by the Commission as misconduct by Respondent, while in

   violation of the North Carolina Code of Judicial Conduct, do not appear to be the

   result of any willful or intentional misconduct by Respondent who believed at all

   times that she was acting within the scope of her discretion and that she was

   acting to preserve the integrity of the Court. Rather Respondent’s misconduct

   appears to have resulted from insufficient inquiry into her obligations under the

   SCRA,    her   insufficiently-based    conclusion     that   Defendant    had   legal

   representation, and from an inappropriate reliance on legal arguments advanced

   by one party that Respondent did not sufficiently research for herself.


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                                   Opinion of the Court



18. Respondent has a good reputation in her 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, and Respondent has been fully

   cooperative   with   the   Commission’s       investigation,   voluntarily   providing

   information about the underlying legal matter and fully and openly admitting

   error.

19. Respondent agreed to enter into a Stipulation to bring closure to the matter and

   because of her concern for protecting the integrity of the court system. With the

   benefit of hindsight, Respondent now admits and understands her error and that

   in fact her actions, even if unintentional and not motivated by malice or ill-

   intent, did constitute conduct prejudicial to the administration of justice that

   brings the judicial office into disrepute. Respondent acknowledged that she has

   learned a valuable lesson from this incident and will be particularly vigilant to

   changes to the laws that affect the growing number of servicemen and

   servicewomen in North Carolina, and will make every effort to ensure that every

   person legally interested in a proceeding receives their opportunity to be heard

   according to the law in the [sic] all future dealings.

20. Respondent agreed to accept a recommendation of public reprimand from the

   Commission and acknowledged that the conduct set out in the stipulations

   establishes by clear and convincing evidence that this conduct is in violation of

   the North Carolina Code of Judicial Conduct and is prejudicial to the


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                                   Opinion of the Court



   administration of justice that brings the judicial office into disrepute in violation

   of G.S. § 7A-376(b).

      In addition to these findings of fact, the Commission made the following

conclusions of law based on clear and convincing evidence:

      1. Respondent’s conduct, as set forth in Paragraphs One through Twenty of

the findings of fact, constitutes conduct in violation of Canons 1, 2A, 3A(1) and

3A(4) of the North Carolina Code of Judicial Conduct.

      2. Respondent’s conduct, as set forth in Paragraphs One through Twenty of

the Findings of Fact, constitutes conduct prejudicial to the administration of justice

that brings the judicial office into disrepute in violation of N.C.G.S. §7A- 376(b).

      When reviewing a recommendation from the Commission, the Supreme Court

“acts as a court of original jurisdiction, rather than in its typical capacity as an

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

(order) (citation and quotation marks omitted). We 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.” Id. (alterations in original)

(citations and quotation marks omitted).         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.” 365 N.C. at 429, 722 S.E.2d at 503 (citation and quotation

marks omitted).


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                                   Opinion of the Court



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

fact 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. We therefore accept the Commission’s findings and adopt them as our own.

Based upon those findings and conclusions and the recommendation of the

Commission, we conclude and adjudge that respondent be publicly reprimanded.

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

respondent Brenda G. Branch be PUBLICLY REPRIMANDED 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) and which violates Canons 1, 2A,

3A(1), and 3A(4) of the Code of Judicial Conduct.

        By order of the Court in Conference, this the 22nd day of January, 2015.



                                                 s/Beasley, J.

                                                 For the Court

        Justice ERVIN did not participate in the consideration or decision of this

case.




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