Analyzing Judge Hobgood's Order

The removal from office of former Durham district attorney Tracey Cline occurred in a tightly-reasoned 14-page (single-spaced) order by Judge Robert Hobgood. The judge took seriously the Cline lawyers’ First Amendment claims—but ultimately rejected them, and in a way that seems almost certain to withstand Cline’s promised appeal.

Hobgood’s findings of fact consisted primarily of two types of material: (a) a recitation of the facts of the Cline-Hudson dispute accepting as true Cline’s version of events (and her recollections of various conversations with Judge Orlando Hudson); and (b) a list of Cline’s 21 most outrageous statements, culled from her various court filings against Hudson.

The 21 statements, Hobgood noted, “are not supported by the facts and have brought the office of the Durham County District Attorney into disrepute.” And Cline’s written assertion that Judge Hudson was “corrupt” was “not only false,” but was “inexcusable” and indicative of “actual malice” in the performance of her duties.

In his conclusions of law, however, Hobgood divided these 21 statements into two types. Sixteen of the twenty-one, he wrote, “may well fall under the umbrella of protected speech under the First Amendment.” [emphasis added] In a damning conclusion for the fate of Cline’s law license, Hobgood added that these 16 statements “unquestionably” violated the State Bar’s Rules of Professional Conduct, and were also “abusive and repetitive.”

But, nonetheless, as in his factual findings regarding closed-door details of exchanges between Cline and Hudson, Judge Hobgood was willing to give Cline (or in this case, her attorneys) the benefit of the doubt. He therefore did not dismiss out of hand the Cline team’s arguments that her “caustic” statements should be viewed through the prism of her First Amendment rights.

That left five Cline statements: that Hudson had committed “misconduct . . . involving moral turpitude, dishonesty, and corruption”; that Hudson was guilty of “kidnapping the rights of victims and their families”; that Hudson had committed “intentional malicious conduct”; that “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct”; and that Hudson needed to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”

Hobgood found, not unreasonably, that these statements constituted a “false, malicious, direct attack” on Hudson, to which Hudson (because of the Code of Judicial Conduct) could not respond. The statements, moreover, were “not supported by any facts in the records or which can be reasonably inferred from the record.” Hobgood noted that the Supreme Court decisions cited by Cline’s attorneys regarding the First Amendment protections for public officials explicitly carved out an exception: that, as Garrison v. Louisiana held, the “knowingly false statement made with reckless disregard of the truth, do[es] not enjoy constitutional protection.” Cline’s First Amendment argument had come up short, and as a result she is out of a job.

Two additional, though implicit, items from Judge Hobgood’s order. First, he appears to have given no serious weight to the argument of Nifong apologist Marcia Morey, who maintained that Cline’s behavior was a mere “distraction to the administration of justice.” Given that Judge Morey had previously claimed that she considered Nifong truthful, she has no credibility on matters of ethics, and Hobgood’s decision not to honor her opinion was appropriate.

Second, Hobgood did include one paragraph that appeared to respond to testimony offered by Durham attorney Bill Cotter (who I know and like) on behalf of Cline. Cotter presented perhaps the most effective defense of Cline offered at the hearing. He didn’t try to defend the truth of Cline’s stories (as Cline’s attorneys did), or even the bizarre nature of her behavior. Instead, he suggested that the Cline-Hudson dispute should be characterized as a personal squabble, rather than something that rises to the level of professional misconduct.

But, as paragraph 42 of the Hobgood order noted, Cline did not confine her squabble to Hudson.

In short, a district attorney, acting in her official capacity through an affidavit filed under her signature, accused a member of the public with having been held in contempt of court—though this accusation was a lie. There was no possible First Amendment protection for this assertion. Nor could it be excused as part of a personal squabble between Cline and Judge Hudson. Instead, the false statement appeared to be part of a pattern of Cline lashing out—the facts be damned—against anyone who she perceived as frustrating her agenda.

In the end, then, neither the First Amendment nor an appeal to personal disputes of courtroom politics could save Cline.