               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 215A19

                               Filed 27 September 2019

IN RE INQUIRY CONCERNING A JUDGE, NO. 18-070

ANGELA C. FOSTER, 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 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.


      No counsel for Judicial Standards Commission or respondent.


                                       ORDER

      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
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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.

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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

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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


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              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,
              Respondent typically offers the litigant an opportunity to
              apologize to the Court in lieu of facing a contempt hearing
              and a jail sentence.
                     12.     Respondent      acknowledges     that    she
              specifically intended to have Ms. Morrow handcuffed and
              taken into custody without a hearing and that this decision
              was an improper or wrongful use of the power of her
              judicial office and that she knew or should have known that
              doing so was beyond the legitimate exercise of her
              authority.
(Brackets in original and 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

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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.      Canon 3 of the Code of Judicial Conduct
governs a judge’s discharge of his or her official duties.
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 . . . . . [sic]” Canon 3A(4) requires a judge to “accord
every person who is legally interested in a proceeding, or
the person’s lawyer, full right to be heard according to law
. . . .”
       4.     Upon the Commission’s independent review
of the stipulated facts concerning Respondent’s conduct on
January 2, 2018 in presiding over the contempt hearing in
Morrow v. Livesay, Guilford County File No. 15CVD5571,
and the audio and transcript thereof included with the
Stipulation, the Commission concludes that Respondent:
              a. 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;
              b. 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;
               c. failed to be patient, dignified, and courteous
       to litigants, lawyers and others who she dealt with
       in her official capacity, in violation of Canon 3A(3) of
       the North Carolina Code of Judicial Conduct;
              d. failed to afford every person who is legally
       interested in a proceeding, or the person’s lawyer, a
       full right to be heard according to the law in
       violation of Canon 3A(4) of the North Carolina Code
       of Judicial Conduct.
     13.    [sic] The Commission also notes that
Respondent agreed in the Stipulation that she violated the


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foregoing provisions of the North Carolina Code of Judicial
Conduct.
       14.     The Commission further concludes that the
facts establish that Respondent engaged in willful
misconduct in office and 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.”).
       15.    More than 40 years ago, the Supreme Court
first defined “willful misconduct in office” as “improper and
wrong conduct of a judge acting in his official capacity done
intentionally, knowingly and, generally in bad faith. It is
more than a mere error of judgment or an act of
negligence.” In re Edens, 290 N.C. 299, 305 (1976). As the
Supreme Court further explained in In re Nowell, 293 N.C.
235 (1977), while willful misconduct in office necessarily
encompasses “conduct involving moral turpitude,
dishonesty, or corruption,” it also can be found based upon
“any knowing misuse of the office, whatever the motive.”
Id. at 248. The Supreme Court also found that “these
elements are not necessary to a finding of bad faith. A
specific intent to use the powers of the judicial office to
accomplish a purpose which the judge knew or should have
known was beyond the legitimate exercise of his authority
constitutes bad faith.” Id.
       16.   In keeping with this long-standing definition,
the Commission finds that Respondent engaged in willful
misconduct in office. In reaching this conclusion, the
Commission does not review the legal issue of whether Ms.
Morrow may properly have been held in contempt based on
her sons’ refusal to visit with their father. Respondent
admits that she purposely avoided any legal ruling on the
contempt issues before her and continued the hearing to a
later date. Instead, the Commission considers
Respondent’s conduct in ordering Ms. Morrow into custody
and then threatening the boys to achieve compliance with
the visitation order without a contempt hearing to be
intentional and willful.


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                      Order of the Court

       17.    The facts establish that Respondent acted
with the specific intent to avoid what Respondent referred
to as a “full-blown hearing,” which Respondent admitted
could not properly go forward because of inadequate notice.
The facts also establish that this conduct was not a mere
“error of judgment or mere lack of diligence” but was
intentional and part of Respondent’s admitted pattern of
ordering litigants into temporary custody to achieve
compliance with her directives without resort to the
contempt power.
       18.    Importantly, Respondent has indicated that
her decision to order Ms. Morrow into custody and her
threats and harsh language directed to the boys were
undertaken with benevolent motives to “deescalate an
unfortunate situation and resolve the visitation issues
without further involving the Court.” Even so, “bad faith”
includes “any knowing misuse of the office, whatever the
motive.” In re Nowell, 293 N.C. at 248. The facts establish
that Respondent acted in bad faith because she had “[a]
specific intent to use the powers of the judicial office to
accomplish a purpose which the judge knew or should have
known was beyond the legitimate exercise of [her]
authority. [sic] Id. Respondent concedes this point as well.
       19.     Having concluded that Respondent engaged
in willful misconduct in office, the Commission also
concludes that Respondent’s conduct amounts to conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute. The Supreme Court in Nowell
explained that “willful misconduct in office of necessity is
conduct prejudicial to the administration of justice that
brings the judicial office into disrepute.” Nowell, 293 N.C.
at 248.
      20.     The Supreme Court also defined conduct
prejudicial to the administration of justice in In re Edens,
290 N.C. 299 (1976) and stated as follows:
  Conduct prejudicial to the administration of justice
  that brings the judicial office into disrepute has been
  defined as “conduct which a judge undertakes in good
  faith but which nevertheless would appear to an
  objective observer to be not only unjudicial conduct
  but conduct prejudicial to the public esteem for the
  judicial office.” Whether the conduct of a judge may be

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                so characterized “depends not so much upon the
                judge’s motives but more on the conduct itself, the
                results thereof, and the impact such conduct might
                reasonably have upon knowledgeable observers.”
             Id. at 305–306 (internal citations omitted).
                     21.   In the present case, regardless of what
             Respondent perceived to be good motives for undertaking
             her course of conduct, Respondent’s actions in directing the
             bailiff to handcuff Ms. Morrow and escort her out of the
             courtroom without an opportunity to be heard and without
             any indication of contemptuous behavior by Ms. Morrow in
             the courtroom, and then continuing to berate and threaten
             Ms. Morrow’s children, is conduct prejudicial to the
             administration of justice that brings the judicial office into
             disrepute.
                    22.    As the Supreme Court recognized in In re
             Nowell, “[t]he power of the district court over the lives and
             everyday affairs of our citizens makes it imperative that
             the district court judges of the State not only be fully
             capable but also dedicated to carrying out their official
             responsibilities in accordance with the law and established
             standards of judicial conduct.” 293 N.C. at 252. In this case,
             Respondent’s conduct fell below the standards expected in
             Canon 1, Canon 2A, Canon 3A(3) and Canon 3A(4) and the
             facts establish that she engaged in willful misconduct in
             office and conduct prejudicial to the administration of
             justice that brings the judicial office into disrepute.
                    23.    Respondent also acknowledges that the
             factual stipulations contained herein are sufficient to prove
             by clear and convincing evidence that her actions
             constitute willful misconduct in office and that she willfully
             engaged in misconduct prejudicial to the administration of
             justice that brings the judicial office into disrepute in
             violation of N.C. Gen. Stat. § 7A-376.
(Brackets in original and citations to pages of the Stipulation omitted.)

      Based on these findings of fact and conclusions of law, the Commission

recommended that this Court censure respondent. The Commission based this



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recommendation on its earlier findings and conclusions, as well as the following

additional dispositional determinations:

                   1.      The Supreme Court in In re Crutchfield, 289
            N.C. 597 (1975) first addressed sanctions under the
            Judicial Standards Act and stated that the purpose of
            judicial discipline proceedings “is not primarily to punish
            any individual but to maintain due and proper
            administration of justice in our State’s courts, public
            confidence in its judicial system, and the honor and
            integrity of its judges.” Id. at 602.
                   2.    In cases where willful misconduct in office is
            found, however, the Supreme Court has found that censure
            is an appropriate sanction. As stated in In re Martin, 333
            N.C. 242 (1993), “Judges especially must be vigilant to act
            within the bounds of their judicial power. When judges
            knowingly act beyond these bounds, it amounts to willful
            misconduct which brings the judicial office into disrepute
            and prejudices the administration of justice. In such cases
            censure at least is proper.” Id. at 245.
                  3.     The Commission recommends censure rather
            than a more severe sanction based on the following
            mitigating factors:
                         a. Respondent has been cooperative with the
                   Commission’s investigation, voluntarily providing
                   information about the incident and accepting
                   responsibility for her actions.
                         b. Respondent has been active in her
                   community and throughout Guilford County and has
                   served as a duly elected judge since 2008.
                          c. Respondent, through a written statement
                   offered to the hearing panel expressed regret that
                   her actions were inappropriate and offered an
                   apology to the Livesay/Morrow family for the
                   manner in which she handled the matter.
                         d. The factual stipulations as to the merits
                   make clear that Respondent had engaged in similar
                   conduct in the past, and therefore the Commission
                   gives no weight to the proposed mitigating factor


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                    that the incident involving Ms. Morrow was an
                    isolated event.
                   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.    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.
(Emphasis in original and 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



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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

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 3A(4) 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. In re

Hartsfield, 365 N.C. 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. (citation omitted). The Commission

recommended that respondent be censured. 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

to censure respondent.

      We appreciate respondent’s cooperation and candor with the Commission




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                                    Order of the Court

throughout these proceedings. Weighing the severity of respondent’s misconduct

against her candor and cooperation, we conclude that the Commission’s

recommended censure is appropriate.

      Therefore, the Supreme Court of North Carolina orders that respondent

Angela C. Foster 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.

      By order of the Court in Conference, this the 27th day of September, 2019.


                                             s/Davis, J.
                                             For the Court

      WITNESS my hand and the seal of the Supreme Court of North Carolina, this
the 27th day of September, 2019.

                                             AMY L. FUNDERBURK
                                             Clerk of the Supreme Court
                                             s/M.C. Hackney
                                             Assistant Clerk




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