On Tuesday, July 5, 2022, Attorney Nicolle Phair filed a brief in the North Carolina Court of Appeals alleging Resson O. Faircloth, district court judge for the 11th Judicial District, of judicial misconduct. The case is styled as ‘State of North Carolina v. Phair’ with case number #COA22-445.

The appellant’s allegations include a violation of Cannon 3(A)(4) of the N.C. Code of Judicial Conduct. These ethics rules generally require:

A judge should never “knowingly initiate nor knowingly consider ex parte or other communications considering a pending proceeding.”

The following are as alleged and summarized from the filing.

On January 29, 2020, Ms. Phair left court at the end of the morning session to go to lunch with her husband, James Fuller, who was also her office manager. She had additional cases to address that afternoon. It was a difficult time she posits, as Ms. Phair’s father had just died on January 23, 2020. Ms. Phair’s large family was making arrangements to travel to the funeral. She came to court despite this incredible loss.

After having lunch with her husband, Ms. Phair returned to court as quickly as she could, unaware the court was awaiting her return. The judge and clerk knew Ms. Phair had an associate attorney, Whitney Mitchell, but no one attempted to locate this attorney when Ms. Phair had not yet returned. When Ms. Phair returned to the courtroom that afternoon, the courtroom was locked, and she had to ask a deputy to unlock the door so she could retrieve her briefcase.

On February 12,  2020, Ms. Phair returned before Judge Faircloth on her pending matters and its own demand she show cause for failing to appear. After determining Ms. Phair would be representing herself, Judge Faircloth asked Ms. Phair why she should not be held in contempt for not appearing at 2:00 in January to handle her matters, and asked her to present evidence in support of her reasons. Ms. Phair testified she had a family emergency related to the death of her father and that she had been unaware the Court was waiting on her.

After Ms. Phair’s testimony, Judge Faircloth ruled that she had “presented no evidence” and he was left with no choice but to find Ms. Phair in contempt because she did not make arrangements.

On September 9, 2021, the matter came for hearing in Superior Court on Ms. Phair’s appeal of the contempt finding. On February 14, 2022, the Superior Court found Ms. Phair to have acted willfully and grossly negligently in failing to return to court, ordering Ms. Phair to be censured and fined $500. From this judgment, Ms. Phair filed a written notice of appeal.

According to Ms. Phair, the District Court erred by finding her in contempt with a summary proceeding rather than a plenary proceeding. She also stated that the District Court erred by shifting the burden of proof to her, failing to make any findings of fact, failing to recuse himself, basing his verdict on ex parte hearsay evidence, and failing to consider any of her testimonial evidence, which, together, constituted a denial of a hearing and order in District Court from which the Superior Court could derive jurisdiction. Additionally, Ms. Phair claimed that the Superior Court erred by failing to obtain the consent of the parties prior to issuing its orders out-of-session and out-of-term.

In the brief, Ms. Phair stated that:

“Judge Faircloth’s conclusion that the explanations were inconsistent or “falsehoods” was made based on ex parte communication with Ms. McElreath. Ms. Phair was never presented with this information and given the opportunity to confront or cross-examine.

Judge Faircloth’s actions in this regard not only violate Ms. Phair’s constitutional rights but are a clear violation of the N.C. Code of Judicial Conduct…

Judge Faircloth based his verdict on ex parte hearsay information, without giving Ms. Phair even an opportunity to respond to that accusation.”

The brief goes on:

“Judge Faircloth twice stated that Ms. Phair “presented no evidence” justifying her lateness. (Ex. Add. pp 19, 21) In doing so, he failed to consider her evidence–her own testimony regarding the reason for her absence and also the presumption of innocence she was constitutionally entitled to, as well as improperly shifted the burden of proof to her. “

Lastly from the brief:

“Because the trial court entered judgment against Ms. Phair in a different session of court than her trial, the out-of-term and out-of-session judgment is null and void and must be vacated.”

Ms. Phair requested the court to vacate her conviction of contempt in this matter.

The Judge earned a law degree from Campbell University School of Law.

A copy of the original filing can be found here.