Tim Kowal  0:00  
Welcome if you are finding this episode, this is part two of our discussion with North Carolina Supreme Court Associate Justice Anita earls. If you missed part one, please tune into that. It covers the background justice Anita Earl's three decades long career as a civil rights attorney leading to her election to the bench at the North Carolina Supreme Court, and we gave a little bit of Prolog about the controversy she found herself in, now safely extricated, but leaves us with some lessons about how to promote both the integrity and institutionalism of the judiciary while also making sure there's some accountability. So that's where our discussion leads in part two. Please enjoy part two. And if you haven't listened to part one, please go back and listen to that without further ado. Please enjoy the discussion with Justice Anita Earls,

Announcer  0:48 
welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. And now your hosts Tim Kowal and Jeff Lewis justice

Tim Kowal  1:02 
rolls, I wanted to turn the discussion a little bit to a recent controversy that you were involved in, following some comments you had made on the lack of diversity, potentially on the North Carolina Supreme Court, which had led to an investigation and then your subsequent federal lawsuit against The judicial Standards Commission, and happily, the investigation wound up being dismissed, after which you had dismissed your lawsuit. And without delving too deeply into the specifics, I wonder if you could anything, any takeaways that you can share about that I know it presented issues of free speech and your openly commenting on things of certainly a public interest. Jeff, as a First Amendment attorney, we talk about the importance of free speech all the time. On this show, I thought reading about that not not being, you know, obviously, this is a California podcast. We're this. This news is, is old in North Carolina, but new to us and maybe to a lot of our listeners, and it seems to present some interesting First Amendment concerns. I wonder if you can just share a little bit about that episode.

Anita Earls  2:03 
Yes, well, certainly, I fully endorse the concept that there is a judicial code of ethics and that there is a body established by the legislature to enforce that code, and that in our state, that body has the power to recommend discipline, everything from a reprimand to being suspended to removing a judge from the bench. And if you're removed, you can never serve again as a judge, and you lose your pension, it's a serious sanction. I think you know the whole question of, how do you hold courts accountable, and especially appellate courts, you mentioned earlier, how people can, you know, get a different judge at the trial level, it's a little trickier at the appellate level, at the intermediate appellate level, you know, if there's a judge with a conflict, a different judge can so we have 15 in our state, 15 intermediate appellate judges. They serve on panels of three. So if one has a conflict, you find two. You know, you find somebody else who doesn't have a conflict. But when it comes to the highest court, a Supreme Court, we don't have a practice of, you know, elevating someone to sit if there's a judge that is recused. So we often actually only have six justices, sometimes only five sitting on a case, and we had one case involving state employee pensions where I didn't but almost the entire court had relatives who were potentially impacted by the outcome of the case. And then we had to invoke something that we call the rule of necessity, but, but I just flag that if it's an issue of recusal, appellate courts, and especially the highest court, it has a slightly different circumstance, and so in thinking about how to address those issues, you have to, I feel like you have to think about it a little differently for an appellate court. But the challenge comes if that commission that has the power to remove a judge is theoretically can you know, can be acting in a way that is a political mission rather than truly enforcing the code of Judicial Conduct. That was not my allegation in the lawsuit that I filed, I simply allege that investigating me twice, and so understand only 6% of the complaints that are filed or ever investigated. So in my view, it was a pretty serious matter to be investigated, very serious matter. And it is absolutely true that the discipline, you know, the potential discipline, was to remove me from the bed. So I took it very, very seriously. I think there's a couple of others state supreme court justices who have been in similar circumstances where they believed that complaints that were being investigated against them were were politically targeting them. So justice Jill Karofsky, on the Wisconsin Supreme Court has talked about this publicly. So it's this is not this is by no means you know, every court. Everywhere in the country. But the other thing that was going on while this while my lawsuit was pending, and while this complaint against me was pending, was that our legislature changed our and so it originally was intended to be diverse stakeholder. So the governor had an appointment, the legislature had an appointment, the Chief Justice had an appointment, the State Bar had appointments. There were lawyers for lawyers on it, as well as judges. The legislature changed the commission so that it is now all judges and that it is appointed by the legislative leaders and the Chief Justice. So and the governor has, I think the Governor has either one or two appointments, but it is now when, when the chief justice is a Republican, and the legislature is controlled by Republicans. 12 of the 14 seats on that commission are controlled by Republicans and and there are no longer any lawyers, and this isn't

Tim Kowal  5:50 
if you happen to know what the partisan makeup was at the Commission before that reshuffling,

Anita Earls  5:56  
I do know that there were Democrats on the commission. The legislature balanced when it gave itself appointment powers appointed all Republican and this is in a political context where there had been calls by Republicans for me to be impeached because of redistricting litigation in our state court. And again, that's not unique. Other other state Supreme Courts have faced political controversy for their rulings in redistricting cases.

Tim Kowal  6:24  
Was that, without getting into the specifics, obviously, was that just because of your past work in in voting rights and redistricting cases,

Anita Earls  6:33  
this the suggestion was that, yes, because I had litigated voting rights cases, I should not sit, that it would be unethical and improper, and I should be impeached for sitting on a redistricting in a case, deciding redistricting issues Interesting,

Tim Kowal  6:48  
okay, having, having an expressed opinion on, on a on an issue writ large, is Could, could be grounds for disqualification or impeachment that it's not the way it works Here, as I understand it in California. But okay, well,

Anita Earls  7:03  
and to be clear, you know, I had litigated plans that were passed in 2010 and that decade, I was on the court long before there was even a census or new redistricting plans. So I'd had no role whatsoever in taking any position on anything that had happened after the 2020 census. So, so to me, the analogy is like, if you were a former prosecutor, could you sit on a criminal case? Right? Yeah,

Jeff Lewis  7:27  
sometimes former prosecutors, my experience in appellate courts and even trial courts, sometimes former prosecutors are the hardest on prosecutors, as opposed to defense attorneys. But it's interesting point, you know, you got me thinking about this, this proceeding that was brought on by comments you had made about the lack of diversity on the court. And let me just ask you, I'm going to go kind of a field here in California, we have something called the anti slap law, which, when you speak out on a certain subject, let's say, at a city council meeting or in court, you get sued for defamation. Those kinds of lawsuits are considered slap lawsuits, where the plaintiff has to immediately prove up their case in an MSJ like standard. If they don't, the case gets tossed, and there's attorney's fees. And I've noticed that North Carolina does not have an anti slap law. And there's been talk, and it's been some bills, but they've never passed one. Do you is there is the effort to pass an anti slap law in North Carolina? Dead or what can you tell us about that.

Anita Earls  8:20  
I'm aware of some advocates in the state who are still pursuing that I don't know. Beyond that, I I don't know where, where that where they might be in their efforts, but I do know that, yeah,

Jeff Lewis  8:33 
all right, interesting. We'll be warned. One of the best and one of the worst things about California's anti slap law is the right of immediate appeal, so a case gets dismissed or not dismissed immediately, it goes up to the Court of Appeal. Clogs the court of the appellate system. So slap lawyers love it, but a lot of appellate lawyer appellate justices hate it because it slows the system down. Sorry, Tim, didn't mean to take you off. Left there, but no,

Tim Kowal  8:55 
I know you always want to get an anti slap angle in whenever you can. Yeah. Well, Justice Earls, I'm curious more about how this how judicial ethics works to, I guess, curtail your ability to speak about issues of public concern as it affects the judiciary. Maybe we can segue into discussing the legal accountability project. This podcast has been supportive of the work of Alisa schatzman and the judicial Accountability Project, and judge Douglas Nazarian of the Appellate Court of Maryland, and also a board member of the legal accountability project, has also come on the podcast to ask judges everywhere to sign the legal Accountability Project pledge, which basically tells law clerks, current and former law clerks, that's it's okay to talk about your experiences, to share your experiences you're not under a code of omerta, a code of silence, where you know you're not allowed to talk about if you feel like you were abused or harassed or had bad work experience. Working for a judge. A judge is it's a little bit different from a normal employer, but is still an employer, and employer. Employees have rights and need to be able to talk about their negative experiences and not having have it be a black mark on them just because they had bad experiences with their judges.

Anita Earls  10:09 
Well, I certainly agree that it is so important for law students to have access to information about Judge different judges chambers, we all operate differently, and it's such an important it's like a small, little law firm, and when student, you know, students need to get good information about what's involved in being a clerk, kind of the pros and cons, as well as what kind of experience to anticipate. So I think that that's very important. And what I do notice is that a lack of information about judges and what it might be like to clerk for them can hinder folks who who don't have access to that otherwise. So I certainly know my practice is to try to reach out to schools, law schools that may not have the same all the same networks, and make sure that students, you know that I at least can give them information. And honestly, all I can talk about is my chambers, because, as I said, everybody kind of runs their chambers differently, but to me, it's a it's an issue of access and giving people good information so they can make good choices about their careers.

Tim Kowal  11:18  
You know, one thing I've in my understanding of the legal accountability project, pledge is, is that a judge taking the pledge would not be requiring or expecting their clerks to do anything. It's merely a signal that it's okay. If you have something to say and you would like to say it, you are free to say it, and there is no no express or implied prohibition on your sharing your negative experiences, but on the broader question about and I think maybe Jeff and I have discussed this a little bit with Elisa, there's a fine line between protecting the independence of the judiciary, the integrity of the judicial system, on the one hand, and on the other Hand, not giving it a blank check. Because, as we talked about with with Elisa the first time we had her on, I remember asking, Well, you know, don't judges police their own. You know, if there's a bad apple somewhere, aren't the other judges going to say, Hey, knock it off. Stop doing this terrible thing to your clerks. And unfortunately, it doesn't happen that way, that the the bad apples, you know, don't go away, and they're not under a check. They judges don't necessarily police their own and I wondered, if you know, in and Jeff and I, as appellate attorneys, know that it can be difficult to find the right balance. You know, we as appellate attorneys, we're going up and and talking about how the trial judges did all the wrong things and got the wrong result and everything, and we have to do that in a way that's firm but respectful. But I wonder if you could share insights about how to find that balance between respecting the integrity of the judicial system while also pointing out where it is going wrong. Well,

Anita Earls  12:56  
that's actually a very it is a very difficult question, and and I guess when I think of accountability for the justice system, I'm I'm usually thinking both externally, like, you know, how are we treating the people, the litigants who come before us? What outcomes are the result of our decisions? And then internally, sort of does, does the way we're operating, you know, is it in line with expected norms and not? You know, we've talked about some of those norms around diversity, but, you know, maintaining a professional workplace is there's a number of components to that, I think. And I do understand the importance of the confidentiality of our deliberations. It's interesting to me that in some states, courts, state supreme courts, the clerks sit in conference. Our clerks don't but in order to write an effective opinion, so we write our opinions after the argument, I need to share with my clerks what the views of the courts were. I need them to be 1,000% confidential about that. So just as in the legal profession, you know, you protect your clients confidences. Here in the judiciary, we have to protect there's a lot we have to keep confidential. And I especially appreciate my clerks who ask questions like I wrote this benchmark. I want to use it as a writing sample. What do I need to do? And I, you know, it's very easy for me to then tell them redact all the identifying information, and then you can use the bench memo so and I have them sign a confidentiality statement so, so all of those, I think, are not unusual to the legal profession generally, and a part of of our duty. I think the concerns that the legal I think the concerns that the legal accountability project are seeking to address are very real and to some degree reflect a breakdown in what should be otherwise institutional systems to protect against, as you've been calling it, bad actors or bad apples, and I kind of see that differently from questions of independence and. Good idea the judiciary, it's really more, you know, are we good employers and do we have the right systems in place? And by the way,

Jeff Lewis  15:05  
I tend to look at a little differently, not just in terms of good judges and bad judges, more about finding a good love connection between a clerk and a judge. Maybe there's some judges that do a certain thing or give these kind of experiences, and maybe a clerk wouldn't be looking for that kind of experience and then just finding the right kind of fit so that clerks have a successful experience, and also the judges have a good experience, and the whole bar wins.

Anita Earls  15:28  
Well, I hear that, but I will also say that I often have the sense that this notion of what is a good fit becomes an exclusionary criteria, and so that concerns me,

Jeff Lewis  15:41  
sure, sure. No, I get that. I get that. But

Anita Earls  15:45  
I definitely think that clerks need to have a people who want to have this role as a clerk need to be clear on what it involves and what it so. So if you're someone who wants to be out there in social media, you know, critic giving your views on the development of the law every week. You know, maybe you want to comment on the this trial or that trial. Probably shouldn't be a clerk, yeah, and as you were saying earlier, right? We lawyers are not outdoor people. When I talk to fourth graders, I talk about my son. I say my son is an entomologist, because he loves being outside chasing flies. Okay, right? Yeah, so, yeah, it's the same thing with being a clerk,

Tim Kowal  16:28 
yeah? Well, yeah. So maybe, maybe we need more judicial journalists who go out and sniff out the stories. And, you know, you can't, can't count on, can't necessarily count on judges to go speaking out of school, not and not because they're not willing to or don't see the problems. It's because there, there is an ethics code, and they do have to. Judges do have to protect the integrity of the bench, and that's that's an important thing, and so it is a, as you said, Justice Earls, it's a difficult, difficult problem, and I think we all just have to be vigilant. I

Anita Earls  17:03 
think you are exactly hitting the nail on the head, and especially in a state where judges are elected. So you bring in concepts of democracy, and you know, how are voters supposed to know? How are voters supposed to hold judges accountable? How are they supposed to know, even like what we're doing, let alone what they should think about what we're doing. The I Am 1,000% behind the notion that we need better, more informed journalists coverage of what our what our courts are doing. And you know, that's I just that's so important.

Tim Kowal  17:35  
All right, Jeff, I think we're going to go, we'll go ask our Supreme Court if we can set up a live broadcast in the middle of the Supreme Court courtroom. Well, if not, I just

Jeff Lewis  17:44 
heard an invitation to go to this one. So yeah, we can set up all right

Tim Kowal  17:48 
justice. Earls, looking ahead, what are some of the key areas where you believe judicial reforms are are needed and or if you have advice to young attorneys who are passionate about advocating for a better legal profession and system of justice. Where do Where do you think we all go from here to the mostly attorneys listening to this podcast?

Anita Earls  18:07  
So I think that you it's important to listen like you start out by listening listen to the experiences of people who are going through the court system, and that is how you identify what the biggest challenges are, and I think almost inevitably, can figure out and see what ought to be done differently, and that, you know, there's a variety of different ways that can happen that listening, but that's where I think you start, yeah, and when

Tim Kowal  18:35 
you say listening, are we listening to to potential clients coming in, or we listen To litigants who are having or struggling with the court system. Who should we be listening to? Definitely,

Anita Earls  18:45  
people, people who have business with the courts and and, you know, there's, there's a lot of work. So the other commission that I'm, I've been working with almost all of my time in North Carolina is, is our Equal Access to Justice Commission, and, and so there we're look. We're looking at how to address the fact that we have a legal system that, in theory, is built on the concept that you have a neutral decision maker. You have two parties, maybe more than two, in some complicated cases, but you have parties, they're each represented by able advocates who present their case, and the neutral decision maker decides what's fair and just applying the law equally to every case. That is the that is the theory. But in practice, we know that the majority people have no lawyer, so they are left to their own devices to figure out what their rights are and how to assert them. And that can, you know, some people can. So there's a lot of work around supporting pro se litigants, you know, giving them forms they can fill out online to contest an eviction, for example, helping people through the divorce process. But when you think about it, you know where you live and your family circumstances probably along with you know what job you can get and what might happen on your job, those are some so really vitally important things to people's lives and. Yet they don't have access to a lawyer who can tell them what their rights are, who can, who can help them navigate the system, and so I think we need so part of we did a study of the legal needs in North Carolina. It was really interesting. So we didn't assume that we knew what these unrepresented you know, what the legal needs were of the population that can't afford an attorney, and having just been a client myself in federal litigation, I can tell you, you know, the vast majority of the population really can't afford what private firm lawyers charge, right? And so I think we to improve our civil justice system. In particular, we need to be listening so we, so we did that in this study of legal needs. We we interviewed lawyers, we interviewed judges, but we also interviewed client communities and and we also interviewed service providers. So so the people who say, Run homeless shelters or do advice lines to try to get a sense of what the legal needs are of the public, and then what you know, we're just not going to be able to restructure the legal profession to provide people with affordable attorneys, but there's a lot, there's things that we can there's a lot of things that we can do, I think, to help people with with access, to better protect their rights. And so that's, that's an that's an example of what I mean by listening to folks,

Tim Kowal  21:20 
yeah, that is such a tough problem when you when you hear from people who have, who have legitimate grievances, legitimate claims or defenses, and they just, they just can't afford to pay for an attorney, and for for people like Jeff and me, we can say sorry, you know, good luck to you, and hang up the phone and be done with it. But then for the for the bench, you know, judges have to see those pro se litigants come up and try to fill out those forms and try to represent themselves and do their best to steer them along the right way without crossing over that line and becoming an advocate for them. So it's a it's a real tough problem, and it's something I don't envy the trial judges who are trying to do to do their best in a real tough situation with those pro se litigants well, and

Anita Earls  22:02 
I also wonder how many times you've had to tell people, well, if you just came and see me, see me six months ago, we could have done X, but you didn't. And so now you know, you don't have that option anymore. And I think the other, the another thing I would highlight. So this may not be true in every state, but one of the biggest things that our trial judge so so when I say listening, I've been listening to our trial court judges as well. And one of the biggest things, particularly in criminal court, in misdemeanor but also sometimes felony criminal court, the legal just as doctors have now done for a long time, research on the the social determinants of health, because they realize that that what they do, what they can offer someone medically, isn't going to really solve their health issue, that there's, you know, whether it's how poor housing conditions, no, not access to healthy food, you know, not good employment, like they recognize there's all these other factors that are impacting their patients health. I think the same is true of the legal system, and that there are social determinants of what happens in our court, and one of those is the lack of mental health services. So district attorneys, please and judges tell us that. You know, so many people end up in their jails and then our prisons who wouldn't be there if they had gotten mental health interventions early enough and effectively so I think it's it's things like that that we hear when we listen to folks that are in the system.

Tim Kowal  23:27  
All right. Well, Justice Earls, I want to thank you again, so much for taking the time to talk with us and our listeners today and sharing with us about your civil rights background, how that informs your your path to the bench, and your in your approach to a to a vision for how the how the our courts can do better, and also talking about that difficult line between accountability and protecting the institution of the judiciary. It's a very, very tough line, and something we should, we can, all of us, attorneys and judges can spend would be worth US devoting some more thought to how to do better about that, because there's no silver bullet solution to it. It's just watching for each individual instance. And Well, Jeff, maybe we'll have to have Ben Shatz come back and talk about the our bias prevention committee and seeing what other ideas they've come up with but justice Earls, thank you again, Jeff, that's going to wrap us up for this episode,

Jeff Lewis  24:18  
right? If you guys have suggestions for future episodes, please email us at info@calpodcast.com, and in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Announcer  24:29  
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