In re Henderson

IN THE SUPREME COURT OF NORTH CAROLINA

No. 30A18

Filed 11 May 2018

IN RE: INQUIRY CONCERNING A JUDGE, NO. 16-231
GARY L. HENDERSON, 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 20 December 2017

that Respondent Gary L. Henderson, a Judge of the General Court of Justice, District

Court Division 26, State of North Carolina, receive a public reprimand for conduct in

violation of Canons 1, 2A, 3A(3) and (5), and 3B(1) of the North Carolina Code of

Judicial Conduct and for conduct prejudicial to the administration of justice that

brings the judicial office into disrepute in violation of N.C.G.S. § 7A-376. This matter

was calendared for argument in the Supreme Court on 18 April 2018, but determined

on the record without briefs or oral argument pursuant to Rule 30(f) of the North

Carolina Rules of Appellate Procedure and Rule 3 of the Rules for Supreme Court

Review of Recommendations of the Judicial Standards Commission.

No counsel for Judicial Standards Commission or Respondent.

ORDER
The issue before this Court is whether District Court Judge Gary L. Henderson

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

3B of the North Carolina Code of Judicial Conduct amounting to conduct prejudicial
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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 he be publicly reprimanded by this Court.

On 2 June 2017, the Commission Counsel filed a Statement of Charges against

Respondent alleging that he had engaged in conduct inappropriate to his office when

he: “(1) failed to issue a ruling for more than two (2) years on a motion for attorney’s

fees and expenses . . . ; (2) failed to respond or delayed responding to party and

attorney inquiries as to the status of the pending ruling; and (3) failed to respond in

a timely manner to numerous communications from the Commission’s investigator

regarding the status of the ruling during the Commission’s investigation into this

matter.”

On 20 December 2017, the Commission filed a Recommendation of Judicial

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

1. On or about August 6, 2013, Respondent
began presiding over a trial . . . to determine whether
defendant Shaffer was entitled to attorney’s fees and costs
associated with her claims for post-separation support,
permanent child custody, sanctions for purposeful delay,
motion for contempt, and expert witness fees and costs.
Plaintiff Zurosky was represented by attorney Tamela
Wallace and defendant Shaffer was represented by
attorney Amy Fiorenza. Unable to complete the hearing in
a single session, the parties reconvened on April 23, 2014
and again on November 5, 2014 to conclude the trial.
Respondent reserved ruling and directed the attorneys to
submit written closing arguments. Attorney Fiorenza

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submitted the defendant’s attorney’s fees closing
arguments, attachments and exhibits to Respondent on
December 12, 2014. Attorney Wallace submitted the
plaintiff’s attorney’s fees closing arguments to Respondent
on December 19, 2014.

2. On June 15, 2015, six months after
Respondent reserved judgment on the motion for attorney’s
fees, Attorney Fiorenza emailed Respondent inquiring as
to the status of the ruling on attorney’s fees, costs, and
expenses. The following day, Respondent emailed the
parties with apologies, noting the “matter is on my radar
and it is my hope to work on it next week since court will
be down for the Judge’s Conference.”

3. On August 28, 2015, another six weeks later,
Attorney Fiorenza again contacted Respondent by email.
Attorney Fiorenza asked Respondent what his estimated
timeframe might be to issue a ruling and noted her client
was anxious to receive a decision sometime in 2015.
Respondent told Attorney Fiorenza that he did not
anticipate having the order completed in 2015 because he
would not have time.

4. On February 8, 2016, Attorney Fiorenza
emailed Respondent a third time to inquire as to when a
ruling could be expected. Respondent did not respond to
this inquiry.

5. On April 7, 2016, attorney Fiorenza emailed
Respondent a final time regarding the status of the
decision on attorney’s fees as all other matters in the case
had been concluded. Attorney Fiorenza further advised
Respondent that she would be forced to withdraw from the
case if a decision was not soon rendered as it had been
sixteen (16) months since the hearing concluded.
Respondent did not respond to this inquiry.

6. Attorney Fiorenza withdrew from the case on
June 6, 2016.

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7. On June 20, 2016, Ms. Shaffer, now a pro se
defendant, emailed Respondent, and copied the opposing
attorney, to inquire when the parties could expect a
decision on the attorney’s fees motion heard in December
2014. Respondent did not respond. . . .

8. Having heard no response from Respondent,
Ms. Shaffer emailed Chief District Court Judge Regan
Miller on the morning of July 15, 2016, and copied
Respondent, seeking the Chief Judge’s assistance in
getting a response from Respondent. Ms. Shaffer
expressed her frustration with the then eighteen (18)
month delay in issuing a decision in her matter. Later that
morning, Chief Judge Miller forwarded Ms. Shaffer’s email
to Respondent. That afternoon, Respondent replied to
Chief Judge Miller that he had been “dragging [his] feet”
and that he had no excuses for the delay other than his
“dread” of the case. Respondent at that time also
committed to “making a decision soon.” Respondent,
however, did not respond to Ms. Shaffer or otherwise
inform the parties as to his intentions or the status of the
ruling.

9. On August 26, 2016, over a month after
committing to Chief Judge Miller that he would soon issue
his decision, Respondent finally emailed the parties to
apologize for the tardiness of his decision and informed
them that he intended to issue a decision by the end of the
week of September 5, 2016. Although Attorney Fiorenza
had withdrawn from the case, Respondent included her in
the email and notified her that she would be tasked with
drafting a proposed order consistent with his anticipated
ruling in early September.

10. Respondent failed to issue the ruling the week
of September 5, 2016 as he had indicated to the parties and
despite his commitment to Chief Judge Miller . . . that he
would be “making a decision soon.”. . .

11. Ms. Shaffer emailed Respondent again on
October 10, 2016, imploring Respondent to issue a decision.

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Respondent again did not respond.

12. On November 9, 2016, Ms. Shaffer filed a
complaint with the Commission regarding the delay in
issuing the attorney’s fees decision. . . .

....

14. On January 22, 2017, Respondent emailed the
attorneys with his decision, tasking attorney Fiorenza with
drafting an order for Respondent in accordance with his
instructions.

15. On March 15, 2017, . . . Respondent informed
the Commission that the attorneys’ fees order had still not
been issued yet as he was waiting on the draft order from
the attorneys. Pursuant to Mecklenberg County Local
Rules, the Order had to be drafted by attorney Fiorenza
and then provided to attorney Wallace for review and
reconciliation.

16. On March 27, 2017, Respondent informed the
Commission that the Order had been entered, over 2 years
and 3 months after the final hearing on the motion for
attorneys’ fees.

(Citations omitted.) Based upon 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

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generally mandates that “[a] judge should avoid
impropriety in all the judge’s activities.” Canon 2A
specifies that “[a] judge should respect and comply with the
law and should conduct himself/herself at all times in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary.”

3. Canon 3 of the Code of Judicial Conduct
governs a judge’s discharge of his or her official duties. In
so doing, Canon 3A(3) requires a judge to be “patient,
dignified and courteous to litigants, witnesses, lawyers and
others with whom the judge deals in the judge’s official
capacity.” Canon 3A(5) requires a judge to “dispose
promptly of the business of the court.” Furthermore,
Canon 3B(1) requires a judge to “diligently discharge the
judge’s administrative responsibilities” and “maintain
professional competence in judicial administration.”

4. The Commission’s findings of fact, as
supported by the Stipulation, show that Respondent failed
to issue a ruling for more than two years and three months
after the last day of the hearing on the matter, and that
such delay was without justification and occurred
notwithstanding multiple requests to issue a ruling from
the parties, the attorneys and Respondent’s Chief Judge.
Further, Respondent concedes that there was no excuse for
the delay other than his “dread” of the case.

5. Upon the agreement of the Respondent and
the Commission’s independent review of the stipulated
facts concerning Respondent’s unreasonable and
unjustified delay . . . , 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 himself in a manner that

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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 courteous to litigants and
lawyers with whom he was dealing in his
official capacity, in violation of Canon
3A(3) of the North Carolina Code of
Judicial Conduct;

d. failed to dispose promptly of the business
of the court, in violation of Canon 3A(5) of
the North Carolina Code of Judicial
Conduct;

e. and failed to diligently discharge his
administrative responsibilities and
maintain professional competence in
judicial administration in violation of
Canon 3B(1) of the North Carolina Code of
Judicial Conduct.

6. Upon the agreement of Respondent and the
Commission’s independent review of the Stipulation and
the record, the Commission further concludes that
Respondent’s violations of the Code of Judicial Conduct
amount to conduct prejudicial to the administration of
justice that brings the judicial office into disrepute, in
violation of N.C. Gen. Stat. § 7A-376(b).

(Brackets in original.) (Citations omitted.) Based upon these findings of fact and

conclusions of law, the Commission recommended that this Court publicly reprimand

Respondent. The Commission based this recommendation on its earlier findings and

conclusions and the following additional dispositional determinations:

1. Respondent freely and voluntarily entered
into the Stipulation to bring closure to this matter and

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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.

2. 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.

3. Respondent has been cooperative with the
Commission’s investigation, voluntarily providing
information about the incident and fully and openly
admitting error and remorse.

4. Respondent’s record of service to the
judiciary, the profession and the community at large is
otherwise exemplary. . . .

5. Upon reflecting upon the circumstances that
brought him to this juncture, Respondent 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). Respondent further
acknowledges that the appropriate discipline in this matter
is public reprimand by the North Carolina Supreme Court.

6. Pursuant to N.C. Gen. Stat. § 7A-377(a5),
which requires that at least five members of the
Commission concur in a recommendation of public
discipline to the Supreme Court, all six Commission
members present at the hearing of this matter concur in
this recommendation to publicly reprimand Respondent.

(Citations and boldface type omitted.)

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Order of the Court

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, 369 N.C. 236,

249, 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.’ ”

Id. at 249, 794 S.E.2d at 273 (quoting In re Hartsfield, 365 N.C. at 428, 722 S.E.2d at

503 (second and third sets of brackets 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 249, 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. Accordingly, 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 publicly reprimanded.

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Order of the Court

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

Respondent Gary L. Henderson be PUBLICLY REPRIMANDED for violations of

Canons 1, 2A, 3A, and 3B of the 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).

By order of the Court in Conference, this the 11th day of May, 2018.

s/Morgan, J.
For the Court

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

the 11th day of May, 2018.

Amy Funderburk
Clerk of the Supreme Court

s/M.C. Hackney
Assistant Clerk

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