IN THE SUPREME COURT OF NORTH CAROLINA
No. 283A22-2
Filed 13 December 2024
IN THE MATTER OF:
PATRICIA BURNETTE CHASTAIN
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 289 N.C. App. 271 (2023), affirming an order entered
on 5 April 2022 by Judge Thomas H. Lock in Superior Court, Franklin County. On
15 December 2023, the Supreme Court allowed petitioner’s and respondent’s petitions
for discretionary review as to additional issues. Heard in the Supreme Court on 19
September 2024.
Fox Rothschild LLP, by Kip D. Nelson and Elizabeth Brooks Scherer; and Davis, Sturges & Tomlinson, PLLC, by Conrad B. Sturges III, for petitioner-appellee.
Zaytoun & Ballew, PLLC, by Matthew D. Ballew, Robert E. Zaytoun, and Zachary R. Kaplan, for respondent-appellant.
RIGGS, Justice.
Clerks of the superior court are constitutional officers elected by qualified
voters in the county where they serve. N.C. Const. art. IV, § 9(3). The North Carolina
Constitution allows for removal of a duly-elected clerk “for misconduct or mental or
physical incapacity by the senior regular resident Superior Court Judge serving the IN RE CHASTAIN
Opinion of the Court
county.” N.C. Const. art. IV, § 17(4).
In this case, we consider the proper procedure for removal of a clerk in
accordance with Article IV of the North Carolina Constitution. We hold that when
the senior regular resident superior court judge is recused from the case and a
replacement judge is commissioned to serve in that position for the removal
proceeding, the replacement judge, serving in the official role of senior regular
resident superior court judge in that matter, has the authority to remove the clerk.
Further, we hold that procedural due process requires that the clerk only be subject
to removal for conduct identified in the sworn affidavit that initiates the removal
proceeding under N.C.G.S. § 7A-105. Lastly, we hold that removal of a clerk under
Article IV is on the basis of the misconduct standard set forth in the plain language
of Article IV, Section 17(4) of the North Carolina Constitution, not under the willful
misconduct standard articulated in N.C.G.S. § 7A-105.
For these reasons, we vacate the decision of the Court of Appeals in In re
Chastain (Chastain II), 289 N.C. App. 271 (2023), overrule the holding of In re
Chastain (Chastain I), 281 N.C. App. 520 (2022), and remand the case for
reconsideration of removal under Article IV not inconsistent with the standards
established in this opinion.
I. Facts & Procedural Background
In May 2013, Patricia Burnette Chastain was appointed to the position of clerk
of superior court in Franklin County. In the November 2013 election, the voters in
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Franklin County elected her to a four-year term as clerk. She was reelected to a
second term in 2017.
On 13 July 2020, Jeffrey Thompson, an attorney in Franklin County, requested
“an inquiry be commenced by the Senior Resident Judge of the Ninth Judicial District
to determine if it is appropriate to remove Ms. Chastain as Clerk of the Franklin
County Superior Court.” Mr. Thompson filed an affidavit pursuant to N.C.G.S. § 7A-
105 (Charging Affidavit) identifying the specific incidents that motivated his desire
for an inquiry. The Charging Affidavit accused Ms. Chastain of willful misconduct,
willful and persistent failure to perform her duties, habitual intemperance, and
conduct prejudicial to the administration of justice. Mr. Thompson alleged1 in the
Charging Affidavit that Ms. Chastain, acting in her official capacity as clerk: (1)
distributed gift certificates for smoothies to jurors in a criminal case; (2) allowed a
judicial candidate to address a jury venire2; (3) acted unprofessionally with
correctional officers at the Franklin County Detention Center and demanded access
to detainees; (4) injected herself in a property dispute without proper authority and
attempted to mediate the dispute outside the presence of the parties’ attorneys; (5)
attempted to mediate a child custody dispute that she did not have jurisdiction over;
1Mr. Thompson acknowledged in his affidavit that he did not have first-hand knowledge of all the allegations; he clarified that the information in the affidavit was based upon information gained in his professional role, from his review of documents, and from information told to him by others. 2 Prior to the removal hearing, District Attorney Michael D. Waters sent a letter to
Ms. Chastain advising her of the impropriety of her actions and requesting that she refrain from any contact with jury venires.
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(6) requested medical records on official judicial letterhead without authority to
request the records; (7) failed to timely and accurately reconcile bank records and
report on financial matters within the clerk’s office; (8) made inappropriate comments
about the chief magistrate to members of the public; and (9) kept irregular work hours
and acted erratically while at work.
On the day the Charging Affidavit was filed, Judge John M. Dunlow, Franklin
County’s senior resident superior court judge, entered an order suspending Ms.
Chastain and set the matter for a hearing on 6 August 2020. Ms. Chastain filed a
motion to recuse Judge Dunlow and the only other Franklin County superior court
judge, Cindy Sturges, from presiding over the removal inquiry because of their
involvement in one of the incidents in the Charging Affidavit. Special Superior Court
Judge J. Stanley Carmical granted the motion of recusal. Based upon the recusal of
these judges, the Chief Justice of the Supreme Court of North Carolina commissioned
Superior Court Judge Thomas H. Lock to preside over the removal inquiry.
Judge Lock held an evidentiary hearing on 28 through 30 September 2020.
After considering the evidence, Judge Lock entered an order on 16 October 2020 (2020
Removal Order), permanently removing Ms. Chastain from her elected position as
clerk based upon the removal procedures found in N.C. Const. art. IV, § 17(4) and
N.C.G.S. § 7A-105. In the 2020 Removal Order, Judge Lock made findings of fact
regarding the allegations in the Charging Affidavit. Additionally, Judge Lock made
findings of fact about two allegations that were not included in the Charging
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Affidavit. The additional allegations were: (1) Ms. Chastain frequently approached
District Attorney Michael D. Waters on “behalf of citizens charged with traffic and
minor criminal offenses and ask[ed] him to reduce or dismiss their charges”; and (2)
Ms. Chastain frequently asked Chief District Court Judge W. Davis to strike orders
for arrest. Judge Lock concluded that “[e]ven if Respondent’s acts of misconduct
viewed in isolation do not constitute willful misconduct, her knowing and persistently
repeated conduct prejudicial to the administration of justice itself rises to the level of
willful misconduct” and “warrant[ed] her permanent removal from the office” of
Franklin County Clerk of Superior Court. Ms. Chastain appealed.
The Court of Appeals concluded that Article IV “confers on a single
individual[ ], the authority to remove the elected Clerk in a county; namely, the senior
regular resident Superior Court Judge in that same county.” Chastain I, 281 N.C.
App. at 523. For this reason, the Court of Appeals held that the replacement judge,
Judge Lock, lacked authority to consider Ms. Chastain’s removal under Article IV.
Id. at 524. The Court of Appeals then considered “the other constitutional avenue by
which a sitting Clerk may be removed,” concluding that Ms. Chastain could “be
removed from her current term as a consequence of being disqualified from holding
any office under Article VI [if] she is adjudged guilty of corruption or malpractice in
any office.” Id. at 524–25 (cleaned up). The court went on to define “corruption and
malpractice,” ultimately holding that “acts of willful misconduct which are egregious
in nature” constitute “corruption or malpractice” under Article VI. Id. at 528 (citing
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In re Peoples, 296 N.C. 109 (1978)). The Court of Appeals vacated the order and
remanded for reconsideration of whether Ms. Chastain’s conduct rose to the level of
corruption or malpractice under Article VI. Id. at 530.
On remand, Judge Lock entered a new order on 5 April 2022 (2022 Removal
Order), concluding Ms. Chastain was “permanently disqualified from serving in the
Office as Clerk of Superior Court of Franklin County.” Judge Lock concluded that
“[e]ven if Respondent’s acts of misconduct viewed in isolation do not constitute willful
misconduct, her knowing and persistently repeated conduct prejudicial to the
administration of justice itself rises to the level of willful misconduct [and] is
equivalent to corruption or malpractice under Article VI of the Constitution of North
Carolina and warrants permanent disqualification from office.” Ms. Chastain again
appealed to the Court of Appeals.
During the second appeal, a divided panel at the Court of Appeals affirmed the
2022 Removal Order, holding that the findings of fact supported the conclusion that
Ms. Chastain’s conduct rose to the level of corruption or malpractice. Chastain II,
289 N.C. App. at 291. The majority, however, went on to note its disagreement with
the holding in Chastain I. Id. at 292. Specifically, the majority in Chastain II opined
that Article VI, Section 8, “concerns disqualification for office, not removal from
office,” id. at 292, and thus the Chastain II majority did not believe removal from
office would be proper under Article VI, id. at 294. Instead, the majority in Chastain
II believed that the Court of Appeals in Chastain I should have remanded the matter
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for further proceedings by Judge Dunlow under Article IV. Id. 294–95.
Notwithstanding that disagreement, the Chastain II majority proceeded, consistent
with In re Civil Penalty, 324 N.C. 373, 384 (1989), and followed the Chastain I
decision on Article VI. Id.
Judge Wood dissented from the holding that Ms. Chastain’s conduct rose to the
level of corruption or malpractice. Id. at 300 (Wood, J., dissenting). In her view, Ms.
Chastain’s conduct was “not egregious as to merit her disqualification and removal
from the elected office of Clerk of Superior Court” under Article VI. Id.
Ms. Chastain appealed to this Court based on Judge Wood’s dissent. We also
allowed Ms. Chastain’s petition for discretionary review as to additional issues and
Mr. Thompson’s petition for discretionary review as to additional issues.
II. Analysis
This case addresses the proper procedure for the removal of a duly-elected clerk
of superior court. At the outset, we acknowledge that the Court of Appeals in
Chastain II was bound to consider whether Ms. Chastain’s removal was proper under
Article VI based upon the earlier Court of Appeals’ decision in Chastain I, as opposed
to revisiting the decision about Article IV removal. Chastain II, 289 N.C. App. at 274;
see also In re Civ. Penalty, 324 N.C. at 384 (“Where a panel of the Court of Appeals
has decided the same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a higher court.”).
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However, we do not agree with the Court of Appeals’ holding in Chastain I that
the “only individual” with authority under Article IV to remove Ms. Chastain was
Judge Dunlow, Franklin County’s senior regular resident superior court judge.
Chastain I, 281 N.C. App. at 523. The Constitution designates the senior regular
resident superior court judge as the judicial officer with the authority to preside over
a removal proceeding when charges are brought against a clerk. N.C. Const. art. IV,
§ 17(4). Because that proceeding is judicial in nature, when the senior resident
superior court judge has a conflict of interest and cannot fairly conduct that
proceeding, the judicial branch may designate another superior court judge to
preside. Therefore, when Judge Dunlow was recused from the matter and Judge Lock
was commissioned to replace him, Judge Lock had the constitutional authority under
Article IV to preside over the removal hearing.
Next, in both Chastain I and Chastain II, the Court of Appeals recognized that
removal of a clerk is only proper based upon allegations put forth in the affidavit that
initiates the proceeding. Chastain I, 281 N.C. App. at 528–29; Chastain II, 289 N.C.
at 277–78. We affirm the determination that removal under Article IV is only
properly based upon allegations identified in the affidavit that initiates the removal
process per N.C.G.S. § 7A-105.
Lastly, neither Chastain I nor Chastain II laid out the proper standard for
removal under Article IV. We clarify that the proper standard for the removal of a
clerk under Article IV is misconduct—as stated in the Constitution—rather than the
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willful misconduct standard identified in N.C.G.S. § 7A-105. See N.C.G.S. § 7A-105
(2023). On remand, Judge Lock should consider whether removal is proper based
upon the standard for misconduct described below.
A. Article IV Removal Hearing
A clerk of superior court is an elected constitutional and judicial officer with
“jurisdiction and powers as the General Assembly shall prescribe by general law
uniformly applicable to every county of the State.” N.C. Const. art. IV, §§ 9(3), 12(3).
The Constitution also sets forth conditions under which an elected clerk may be
removed from office; clerks “may be removed from office for misconduct or mental or
physical incapacity by the senior regular resident Superior Court Judge serving the
In Chastain I, the Court of Appeals interpreted the language in Section 17(4)
to “confer on a single individual[ ], the authority to remove the elected Clerk in a
county” and “no other judge may be conferred with jurisdiction over the subject
matter of removing a Clerk for misconduct under Article IV.” Chastain I, 281 N.C.
App. at 523. However, “issues concerning the proper construction and application
of . . . the Constitution of North Carolina can only be answered with finality by this
Court.” State ex rel. Martin v. Preston, 325 N.C. 438, 449 (1989). In interpreting our
Constitution, where the meaning is clear from the words, there is no need to search
for meaning elsewhere. Id. When interpreting the “clemency power” granted to the
Governor under Article III, Section 5(6) of the Constitution, this Court held that only
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the Governor, and no other executive branch official, can exercise the power of
clemency. Bacon v. Lee, 353 N.C. 696, 718 (2001). In Bacon, a death row inmate
sought to have the Governor—who was involved in prosecuting the inmate’s criminal
case—delegate the clemency power to the Lieutenant Governor, who had no potential
conflict of interest. Id. In rejecting this request, this Court held that “only the
Governor . . . may exercise the clemency authority established by the people of North
Carolina in their Constitution.” Id.
Following this reasoning, the Court of Appeals in Chastain I held that only the
senior regular resident superior court judge serving Franklin County could conduct
the removal proceeding in this case and, if that judicial official could not do so, no
other judge could replace him. However, examining Article IV, Section 17(4), within
the structure of Article IV as a whole explains why the analogy to the executive’s
clemency power does not answer the question here.
The position of “senior regular resident Superior Court Judge”3 appears three
times in Article IV. See N.C. Const. art. IV, §§ 9(3), 10, 17(4). The first two provisions
grant the senior regular resident superior court judge the power to appoint other
public officials: allowing appointment of a temporary clerk, id. art. IV, § 9(3); and
allowing appointments of magistrates, id. art. IV, § 10. The third provision—removal
of a clerk of superior court—is at issue in this case. Id. art. IV, § 17(4).
3 In Section 17, the position is styled as senior regular resident Superior Court Judge.
In Sections 9 and 10, the position is styled as senior regular resident Judge of the Superior Court.
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In each provision, the constitution provides the senior resident superior court
judge with special authority that would not function unless only one person could
wield it at any given time. See id. But unlike the other two provisions—which grant
appointment power—the removal proceeding in Section 17(4) of Article IV requires
the judge to preside over a hearing and enter a judgment according to law. Id. In
other words, it requires the judge to wield the judicial power. When adjudicating
cases, all superior court judges are judicial officers of the Superior Court Division of
our General Court of Justice. See id. art. IV, § 2. Thus, in this context, the senior
regular resident superior court judge has no unique constitutional power greater than
other judges of the superior court. See also N.C.G.S. § 7A-41.1(c) (2023) (“Senior
resident superior court judges and regular resident superior court judges possess
equal judicial jurisdiction, power, authority and status[.]”).
Article IV, Section 17 of the Constitution does not limit the authority to preside
over a clerk’s removal proceeding to a single judge in the same way that Article III,
Section 5 limits the clemency power solely to the Governor. Instead, Section 17 of
Article IV identified the position of senior regular resident superior court judge
serving the county as the default judicial officer who must adjudicate charges brought
against a clerk of superior court under Article IV. Id. art. IV, § 17(4). But in a
circumstance where that superior court judge has a conflict of interest and cannot
fairly hear the case, the judicial branch may substitute another superior court judge
of the General Court of Justice to preside over the proceeding and enter the judgment
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of the trial division. See N.C. Const. art. IV, § 9(1) (granting the General Assembly
the authority to provide by general law for the selection or appointment of special or
emergency Superior Court Judges); see also N.C.G.S. § 7A-41.1(e) (providing the Chief
Justice the authority to appoint an acting senior resident superior court judge when
the regular senior resident superior court judge is unable to perform their duties).
That is the scenario in this case. When Judge Dunlow was recused from this
case, the Chief Justice exercised her authority to appoint Judge Lock as the superior
court judge authorized to preside over the matter. Accordingly, we hold that Judge
Lock properly had the constitutional authority to preside over the Article IV removal
proceeding in this case.
The Court of Appeals went on to acknowledge that where the disqualification
of a judge “would result in a denial of a litigant’s constitutional right to have a
question properly presented” to a court of last resort, then the Rule of Necessity
operates to allow a judge to hear a matter notwithstanding that their participation
may violate a judicial ethical canon. Chastain I, 281 N.C. App. at 523 (quoting Lake
v. State Health Plan for Tchrs. & State Emps., 376 N.C. 661, 664 (2021)). But here
Judge Dunlow’s recusal would not deny Ms. Chastain her constitutional right to have
the removal question presented to the court. The Chief Justice has authority to
appoint a judge to step into the position of senior regular resident superior court judge
to preside over the removal hearing. Because Judge Dunlow was recused and Judge
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Lock was properly appointed, Judge Lock had jurisdiction to preside over the Article
IV removal proceeding.
B. Due Process for the Removal Proceeding
Having concluded that Judge Lock had subject matter jurisdiction over the
Article IV removal proceeding, we turn our attention to the question of whether
removal under Article IV can only be based upon acts identified in the affidavit used
to initiate the proceeding. See N.C.G.S. § 7A-105 (mandating that “the procedure
shall be initiated by the filing of a sworn affidavit with the chief district judge of the
district in which the clerk resides”). A proceeding resulting in the removal of an
elected public official must afford the individual all the benefits of due process of law.
In re Spivey, 345 N.C. 404, 413–14 (1997) (concluding that the North Carolina
Constitution does not prohibit the General Assembly from enacting a statutory
method of removal so long as the removal process provides due process of law). “An
elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” McLean v. McLean, 233 N.C. 139, 146 (1951)
(quoting Mullane v. Cent. Hanover Bank & Tr., Co., 339 U.S. 306, 314 (1950)).
Because a removal proceeding is neither a civil nor criminal proceeding, the
only notice a respondent receives of the removal proceeding is the affidavit that
initiates the process. See N.C.G.S. § 7A-105 (outlining the procedures for removal of
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a clerk and incorporating by reference the requirements for removal of a district
attorney under N.C.G.S. § 7A-66); see also N.C.G.S. § 7A-66 (2023) (outlining the
procedures for removal of district attorneys). The statutory process designates that
the affidavit which initiates the proceeding must state the grounds for removal.
N.C.G.S. § 7A-66 (“A proceeding . . . is commenced by filing . . . a sworn affidavit
charging . . . one or more grounds for removal.”). Additionally, the General Assembly
requires “immediate written notice of the proceedings and a true copy of the charges”
and that “the matter shall be set for hearing not less than 10 days nor more than 30
days thereafter.” Id. So long as the statutory language does not conflict with the
Constitution, we presume that the procedure set forth in the statute is valid. See
State ex rel. Martin, 325 N.C. at 448–49 (“All power which is not expressly limited by
the people in our State Constitution remains with the people, and an act of the people
through their representatives in the legislature is valid unless prohibited by that
Constitution.”).
Ms. Chastain argues that the 2020 and the 2022 Removal Orders relied upon
acts not identified in the Charging Affidavit as some partial basis for removal. The
Court of Appeals in Chastain I agreed with Ms. Chastain as to the 2020 Removal
Order and concluded that reliance on “acts that were not alleged in [the Charging
Affidavit] violated Ms. Chastain’s due process rights.” Chastain I, 281 N.C. App. at
529. The Charging Affidavit contained a long list of alleged misconduct, including
nine specific incidents where Mr. Thompson asserted that Ms. Chastain acted in a
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manner constituting willful misconduct, willful and persistent failure to perform her
duties, habitual intemperance, and conduct prejudicial to the administration of
justice. As part of the removal proceeding, Judge Lock made more than thirty
findings of fact about the allegations identified in the Charging Affidavit.4
However, during the removal hearing, Judge Lock also heard testimony and
made findings about two additional allegations of misconduct that were not identified
in the Charging Affidavit. Those allegations were that Ms. Chastain asked the
district attorney to reduce or dismiss charges for traffic and minor criminal offenses
and that Ms. Chastain asked the chief district court judge to strike orders for arrest.
Relying on allegations not proffered in the Charging Affidavit does not comport with
the procedures for removal of a clerk set forth by the General Assembly; specifically,
our statutes require that the grounds for removal are identified in the sworn affidavit
that initiates the removal proceeding. See N.C.G.S. §§ 7A-105, -66.
In a removal proceeding, which by statute must commence within thirty days
after the filing of the affidavit, respondents must have notice of all allegations in the
affidavit so that they can mount a defense against those allegations. Therefore, on
remand, Judge Lock may only consider the allegations in the Charging Affidavit as
grounds for removal under Article IV.
4 The trial court noted in the order that the affiant expressly abandoned the allegation
of irregular work hours and intemperance and that the affiant did not provide any evidence in support of the allegations of “interference in a child custody case” and “unauthorized demands for medical records.” Therefore, those allegations were not considered as bases for the removal.
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C. Standard for Removal Under Article IV
Lastly, we consider the standard for the removal of a clerk of superior court
under Article IV. Section 17(4) of Article IV states that a clerk “may be removed from
office for misconduct or mental or physical incapacity.” N.C. Const. art. IV, § 17(4)
(emphasis added). Notably, subsection four does not use the “willful misconduct”
standard which is used in Section 17(2) of Article IV, addressing removal of judges
and justices. See N.C. Const. art. IV, § 17(2). The statutory procedure for removal or
suspension of a clerk, though, identifies that higher standard for removal—willful
misconduct—as the applicable standard. N.C.G.S. § 7A-105. However, when “there
is a conflict between a statute and the Constitution, this Court must determine the
rights and liabilities or duties of the litigants before it in accordance with the
Constitution, because the Constitution is the superior rule of law in that situation.”
City of Asheville v. State, 369 N.C. 80, 88 (2016) (quoting Adams v. N.C. Dep’t of Nat.
& Econ. Res., 295 N.C. 683, 690 (1978)). The constitutional language controls and,
therefore, removal of a clerk under N.C. Const. art. IV, § 17(4) and N.C.G.S. § 7A-105
may be based upon misconduct, even if that conduct would not rise to the level of
willful misconduct.
Nevertheless, this Court has not defined “misconduct” in the context of removal
of a clerk under Article IV. The Court of Appeals, in the context of the Crime Victims
Compensation Act, looking at whether a claimant’s own misconduct was a proximate
cause of his or her injury, recognized that misconduct is conduct “not within the
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accepted norm or standard of proper behavior.” Evans v. N.C. Dep’t of Crime Control
& Pub. Safety, 101 N.C. App. 108, 117 (1990). “While misconduct includes unlawful
conduct as a matter of law, it may be something less than unlawful conduct, though
more than an act done in poor taste.” Id. In the context of the removal of a prosecutor,
this Court recognized that misconduct includes the “official doing of a wrongful act,
or the official neglect to do an act which ought to have been done” even without a
corrupt or malicious motive. State ex. rel. Hyatt v. Hamme, 180 N.C. 684, 688 (1920).
These definitions align with the definition of misconduct found in Black’s Law
Dictionary: “dereliction of duty; unlawful, dishonest, or improper behavior, esp. by
someone in a position of authority or trust.” Misconduct, Black’s Law Dictionary
(12th ed. 2024). Applying these standards to the constitutional office of clerk of
superior court, we conclude that misconduct for a clerk is wrongful, unlawful,
dishonest, or improper conduct performed under the color of authority for the clerk of
superior court as identified in N.C.G.S. § 7A-103. See N.C.G.S. § 7A-103 (2023)
(outlining the authority of clerk of superior court).
Because the 2020 Removal Order is not before us, we do not simply reinstate
that order. Nor do we suggest that the 2020 Removal Order, without factual findings
on acts not identified in the Charging Affidavit, is necessarily inconsistent with this
opinion. Thus, we remand this case to the Court of Appeals for further remand to
Judge Lock to consider, consistent with this opinion, whether the findings of fact
demonstrate misconduct sufficient to justify removal.
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D. Disqualification of a Clerk Under Article VI
In his petition for discretionary review, Mr. Thompson asked this Court to
outline the governing legal and procedural standard for removal under Article IV,
Section 17(4), and disqualification under Article VI, Section 8, for a clerk of superior
court. See N.C. Const. art. IV, § 17(4); N.C. Const. art. VI, § 8. Because we hold that
Judge Lock has the authority to consider removal under Article IV, we do not need to
consider the question of the proper legal and procedural standard for disqualification
of a clerk under Article VI. We decline to reach that question until it is properly
presented to this Court. Accordingly, we conclude that the petition for discretionary
review as to the issue of the proper procedure for disqualification under N.C. Const.
art. VI, § 8, was improvidently allowed.
III. Conclusion
In sum, we hold that after Judge Lock was commissioned to oversee the
removal proceeding, he assumed the position of senior regular resident superior court
judge for Article IV, Section 17(4) purposes and therefore, had authority to consider
the removal of Ms. Chastain under N.C. Const. art. IV, § 17(4). Furthermore,
procedural due process requires that removal only be based upon incidents identified
in the sworn affidavit that initiates the removal procedure pursuant to N.C.G.S. §
7A-105. Lastly, we affirm that the standard for removal of a clerk under Article IV
as set forth in the Constitution is misconduct. For these reasons, we overrule the
holding in Chastain I, 281 N.C. App. 520, that Judge Lock did not have jurisdiction
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to remove Ms. Chastain under N.C. Const. art. IV, § 17(4). Additionally, we vacate
the Court of Appeals’ decision in Chastain II, 289 N.C. App. 271.
We remand the case to the Court of Appeals with instructions to further
remand to Judge Lock for consideration of whether removal is proper under N.C.
Const. art. IV, § 17(4) based upon the incidents identified in the Charging Affidavit
and the standard for removal set forth in this opinion. Judge Lock retains the
discretion to determine whether an additional hearing is necessary on this matter.
Lastly, we note that discretionary review was improvidently allowed as to the proper
procedure and guidelines for disqualification of a clerk of superior court under N.C.
Const. art. VI, § 8.
VACATED AND REMANDED IN PART; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED IN PART.
Justice ALLEN did not participate in the consideration or decision of this case.
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