IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-649

Filed 20 June 2023

Franklin County, No. 20 CVS 630

IN THE MATTER OF: PATRICIA BURNETTE CHASTAIN

Appeal by Respondent from order entered 5 April 2022 by Judge Thomas H. 

Lock in Franklin County Superior Court. Heard in the Court of Appeals 8 February 

2023.

Zaytoun Ballew & Taylor, PLLC, by Matthew D. Ballew, Robert E. Zaytoun, 

and Claire F. Kurdys, for Respondent-Appellant.

Fox Rothschild LLP, by Kip D. Nelson and Elizabeth Brooks Scherer, and 

Davis, Sturges & Tomlinson, PLLC, by Conrad B. Sturges, III, for AffiantAppellee.

GRIFFIN, Judge.

Respondent Patricia Burnette Chastain appeals from an order permanently 

disqualifying her from serving in the Office of Clerk of Superior Court of Franklin 

County. This is Respondent’s second appeal in this matter. Our Court addressed 

Respondent’s first appeal in In re Chastain, 281 N.C. App. 520, 869 S.E.2d 738 (2022) 

(“Chastain I”), and remanded the matter for proceedings consistent with the Court’s 

opinion. 
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In this appeal, we address Respondent’s contention the trial court erred in its 

application of the appropriate standard for disqualification for office under Article VI 

of the North Carolina Constitution. Upon review of the trial court’s application of the 

standard, together with Respondent’s conduct, we hold the trial court properly 

disqualified Respondent from office as her conduct in office amounted to nothing less 

than corruption or malpractice.

I. Factual and Procedural Background

In 2014, Respondent was elected to serve as Franklin County Clerk of Superior 

Court. She was reelected to a second term in 2018. In July 2020, Affiant Jeffrey 

Thompson commenced this proceeding, pursuant to N.C. Gen. Stat. § 7A-105, seeking 

removal of Respondent from office. Upon motion by Respondent and a subsequent 

hearing on the matter on 10 September 2020, the Senior Resident Superior Court 

Judge of Franklin County, Judge Dunlow, was recused by Judge J. Stanley Carmical. 

Accordingly, on 28 September 2020, Judge Thomas H. Lock, the Senior Resident 

Superior Court Judge of Johnston County, presided over the removal hearing, which 

concluded on 30 September 2020. Following the hearing, on 16 October 2020, Judge 

Lock issued an order (“2020 Order”) permanently removing Respondent from serving 

in the office of Clerk of Superior Court of Franklin County. On 4 May 2020, 

Respondent appealed the 2020 Order to this Court. On 1 February 2022, for reasons 

further explained in Chastain I, our Court vacated the 2020 Order and remanded the 

matter for further proceedings consistent with that panel’s opinion.
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Upon remand, Judge Lock again presided over the matter which came on for 

hearing on 16 March 2022. On 5 April 2022, Judge Lock entered an order (“2022 

Order”) permanently disqualifying Respondent from serving in the Office of Clerk of 

Superior Court of Franklin County in accordance with Article VI of the North 

Carolina Constitution. On 4 May 2022, Respondent filed notice of appeal from the 

2022 Order.

II. Standard of Review

Upon removal proceedings against a clerk of superior court, the affiant 

bringing the charges must prove grounds for removal exist by clear, cogent, and 

convincing evidence. In re Cline, 230 N.C. App. 11, 20–21, 749 S.E.2d 91, 98 (2013). 

As such, we review the trial court’s findings of fact, of which Respondent challenges, 

to determine whether they are supported by clear, cogent, and convincing evidence, 

and in turn, whether those findings support its conclusions of law. State v. Williams, 

362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (internal marks and citations omitted).

Challenged findings of fact are binding on appeal if supported by competent evidence. 

Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). 

Likewise, findings of fact which remain unchallenged are also binding on appeal. 

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We review the 

trial court’s conclusions of law de novo. State v. Biber, 365 N.C. 162, 171, 712 S.E.2d 

874, 880 (2011).

III. Analysis
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Respondent contends the trial court erred in permanently disqualifying and 

removing her from serving in the Office of Clerk of Superior Court of Franklin 

County, as it failed to properly apply the standard for disqualification under Article 

VI of the North Carolina Constitution.

At the outset, we recognize this Court is bound by our Court’s previous decision 

in Chastain I. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where 

a panel of the Court of Appeals has decided the same issue, albeit in a different case, 

a subsequent panel of the same [C]ourt is bound by that precedent, unless it has been 

overturned by a higher [C]ourt.”); see also State v. Jones, 358 N.C. 473, 487, 598 

S.E.2d 125, 133 (2004) (“While we recognize that a panel of the Court of Appeals may 

disagree with, or even find error in, an opinion by a prior panel and may duly note its 

disagreement or point out that error in its opinion, the panel is bound by that prior 

decision until it is overturned by a higher [C]ourt.”). Thus, we analyze Respondent’s 

contentions in accordance with our Court’s opinion in Chastain I. 

A. The Standard 

Our Court’s decision in Chastain I analyzed two constitutional avenues under 

which a superior court clerk of a county in North Carolina may be removed—Article 

IV and Article VI of our State Constitution. See Chastain, 281 N.C. App. at 524, 869 

S.E.2d at 742. Article IV, section 17, authorizes the removal of a superior court clerk 

who engages in misconduct. Id. at 523, 869 S.E.2d at 741 (citing N.C. Const. art. IV, 

§ 17(4)). Alternatively, Article VI, section 8, authorizes the removal of a superior 
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court clerk “as a consequence of being disqualified from holding any office under 

Article VI where she is ‘adjudged guilty of corruption or malpractice in any office.’” 

Id. at 524–25, 869 S.E.2d at 742 (quoting N.C. Const. art. VI § 8) (emphasis omitted). 

After addressing both avenues for removal, the Court held “the Article IV 

avenue could not serve as the basis for Judge Lock’s decision to remove [Respondent] 

from office,” as our Constitution conferred jurisdiction to consider Respondent’s 

removal, under Article IV, only upon the Senior Regular Resident Superior Court 

Judge, Judge Dunlow. Id. at 524, 869 S.E.2d at 742. Additionally, our Court held 

Respondent could be properly removed by Judge Lock, under Article VI, if Judge Lock 

were to find her conduct in office met the corruption or malpractice standard supplied 

by Article VI, section 8, of our State Constitution because, “unlike Article IV, Article 

VI does not specify any procedure or confer authority on any particular judge or body 

to make disqualification determinations[.]” Id. at 525, 869 S.E.2d at 742.

Our Court had not considered the removal of a clerk of superior court before 

Chastain I. Thus, the Court relied on precedent concerning the removal of other 

elected officials, primarily judges, and defined this corruption or malpractice 

standard to include, at a minimum, “acts of willful misconduct which are egregious 

in nature[.]” Id. at 528, 869 S.E.2d at 745. 

The prior panel of this Court held willful misconduct requires more than just 

intent to commit an offense, but rather purpose and design in doing so. Id. (citing 

State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940)). Similarly, this 
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Court found willful misconduct in office to be more than an error in judgment or a 

mere lack of diligence. Id. at 528, 869 S.E.2d at 744 (citing In re Martin, 302 N.C. 

299, 316, 275 S.E.2d 412, 421 (1981) (internal marks and citations omitted)). Instead, 

willful misconduct may, but is not required to, encompass conduct involving moral 

turpitude, dishonesty, or corruption. Id. The Court reiterated that where a judge 

knowingly and willfully persists in misconduct of which the judge knows, or should 

know, to be acts of willful misconduct in office “and conduct prejudicial to the 

administration of justice which brings the judicial office into disrepute, he should be 

removed from office.” Id. (quoting In re Martin, 302 N.C. at 316, 275 S.E.2d at 421); 

see also In re Hunt, 308 N.C. 328, 338, 302 S.E.2d 235, 240 (1983) (“[C]onduct 

prejudicial to the administration of justice, if knowingly and persistently repeated, 

would itself rise to the level of willful misconduct in office, which is a constitutional 

ground for impeachment and disqualification for public office.” (citing In re Peoples, 

296 N.C. 109, 157–58, 250 S.E. 2d 890, 918 (1978))). 

This Court set a framework for what constitutes willful misconduct, defining

the standard to include only acts of willful misconduct which are egregious in nature. 

Chastain, 281 N.C. App. at 528, 869 S.E.2d at 745. We understand egregious acts to 

be those that are extremely or remarkably bad. Egregious, Black’s Law Dictionary 

652 (11th ed. 2019). In tailoring its definition, the Court relied heavily upon our 

Supreme Court’s decision in In re Peoples—even so far as to say a respondent’s actions 

would meet the standard if said acts of willful misconduct were, at a minimum, as 
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egregious as those in Peoples. Chastain, 281 N.C. App. at 528, 869 S.E.2d at 744; see 

also In re Peoples, 296 N.C. at 156–57, 250 S.E.2d at 917–18.

1

The Court in Chastain I established this general definition of the corruption or 

malpractice standard. However, the application of the standard, as to the 

disqualification and consequential removal of clerks, has yet to be addressed. This is 

the task before this Court. We look to precedent addressing the application of the 

standard as to other elected officials, while recognizing the conduct which amounts

to corruption or malpractice will necessarily differ based on the elected office held by 

the respondent.

B. Application of the Standard

Respondent contends the trial court erred in applying the corruption or 

malpractice standard defined by our Court in Chastain I. Specifically, Respondent 

argues her conduct did not rise to meet the standard and the trial court only 

concluded otherwise because it considered acts alleged outside the charging affidavit 

and considered the evidence in totality rather than isolation. Further, Respondent 

explicitly challenges the trial court’s Findings of Fact 17, 19, 30, 37, 45, and 46; and 

Conclusions of Law 3, 5, 7, 9, and 10. 

1 Our Supreme Court disqualified the judge from holding further judicial office under Article 

VI, section 8, where evidence of his misconduct included, among other things, he: dismissed several 

cases without trial or the defendants present and without the knowledge of the district attorney; 

maintained a personal file where he indefinitely held cases he caused to be removed from the active 

trail docket; paid the clerk money he obtained from several defendants in cases he disposed of in 

absence of those defendants.
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1. Consideration of Acts Outside the Charging Affidavit

Respondent argues the trial court erred in applying the corruption or 

malpractice standard by relying on acts outside the charging affidavit to make the 

necessary findings and conclusions for disqualification under said standard. 

Specifically, Respondent argues the trial court considered incidents with Judge Davis 

and District Attorney Waters to support its findings that Respondent acted with 

notice, knowledge, and intent such that her conduct met the corruption or malpractice 

standard. 

Our General Assembly codified the procedural mechanism for removal of clerks 

in N.C. Gen. Stat. § 7A-105 which states, inter alia, “the procedure [for removal of a 

clerk of superior court] shall be initiated by the filing of a sworn affidavit with the 

chief district judge of the district in which the clerk resides[.]” N.C. Gen. Stat. § 7A105 (2021). In interpreting this statute, our Court, in Chastain I, recognized, 

pursuant to our Supreme Court’s holding in In re Spivey, “any procedure to remove 

an elected official must afford that official due process.” Chastain, 281 N.C. App. at

528–29, 869 S.E.2d at 744–45 (citing In re Spivey, 345 N.C. 404, 413–14, 480 S.E.2d 

693, 698 (1997) (holding our Constitution does not prohibit our General Assembly 

from enacting methods for removal “so long as [the officers] whose removal from office 

is sought are accorded due process of law”)). 

Our Court held in Chastain I, that Judge Lock, in rehearing any case 

pertaining to Respondent’s removal, was limited to considering only those acts 
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alleged in the charging affidavit, as Respondent had both the due process and 

statutory right to notice of the acts for which her removal was being sought. 

Chastain, 281 N.C. App. at 529, 869 S.E.2d at 745. Our Court noted, however, the 

trial court was permitted to consider facts not alleged in the charging affidavit as a 

means to assess Respondent’s credibility. Id. at 529, 869 S.E.2d at 745; see State v. 

Johnson, 378 N.C. 236, 242, 861 S.E.2d 474, 482 (2021) (“‘The weight, credibility, and 

convincing force of such evidence is for the trial court, who is in the best position to 

observe the witnesses and make such determinations.’” (quoting Macher v. Macher, 

188 N.C. App. 537, 540, 656 S.E.2d 282, 284 (2008))). 

Though the trial court is limited in what it can consider during proceedings for 

removal of a clerk, we are cognizant that, “[w]here, as here, the trial judge acted as 

the finder of fact, it is presumed that he disregarded any inadmissible evidence that 

was admitted and based his judgment solely on the admissible evidence that was 

before him.” In re Cline, 230 N.C. App. 11, 27, 749 S.E.2d 91, 102 (2013) (citing Bizzell 

v. Bizzell, 247 N.C. 590, 604–06, 101 S.E.2d 668, 678–79 (1958)) (internal quotation 

marks and citations omitted). Consequently, this Court will only find reversible error 

where it affirmatively appears the action of the court was influenced by the 

consideration of inadmissible evidence. See Bizzell, 247 N.C. at 604–05, 101 S.E.2d 

at 678. 

Here, evidence not contained in the charging affidavit, which had been 

previously introduced in the first removal proceeding against Respondent, was
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excised from the record. Notably, counsel for Respondent stated:

Certain things came into evidence. [Affiant’s counsel] put 

certain things into the evidence that was not in the 

affidavit. None of that—that’s been excised. That’s out of 

this record now. Particularly the matters relating to fixing 

the tickets, allegedly, that the DA testified to, as well as 

going to the district court judge repeatedly to strike orders 

of arrest. That’s—that’s not—that’s not here before you.

Not only were these allegations excised from the record upon which the trial court 

relied in making its findings and conclusions here, but the trial court further 

confirmed its declination in considering this evidence by unequivocally stating within 

its findings and conclusions, it had not relied upon this evidence except to consider 

Respondent’s credibility as authorized by this Court in Chastain I. In Finding of Fact 

14, the trial court stated:

Respondent’s interactions with Mr. Waters and Judge 

Davis described in the preceding two paragraphs were not 

specifically alleged in the changing affidavit. Hence, the 

court has not considered the evidence concerning them as 

a potential basis for removal. However, this evidence has 

been considered to assess Respondent’s credibility[.] 

Similarly, in Finding of Fact 48, the trial court stated:

As to evidence related to Respondent’s conduct discussed 

at the evidentiary hearing but not alleged in the charging 

affidavit, the court has not considered such evidence as 

grounds for Respondent’s disqualification from office.

Thereafter, the trial court concluded in Conclusion of Law 4: 

Respondent’s repeated requests to District Attorney 

Michael Waters on behalf of persons seeking the reduction 

or dismissal of criminal charges and her repeated ex parte 
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requests to Judge John Davis to strike orders of arrest for 

persons charged with criminal offenses were not 

specifically alleged in the charging affidavit and were not 

considered by this court as a potential basis for removal. 

However, this evidence was considered to assess 

Respondent’s credibility[.]

These Findings and Conclusion demonstrate the trial court’s abstention from 

relying on evidence outside the charging affidavit for purposes other than considering 

Respondent’s credibility. Moreover, Judge Lock acted as the fact finder. Thus, we 

presume he only used this evidence to assess credibility pursuant to our decision in 

Chastain I. 

We hold the trial court did not err as it properly excluded acts outside the 

charging affidavit from consideration when making the necessary findings and 

conclusions for the disqualification of Respondent under the corruption or 

malpractice standard.

2. Conduct Considered in Totality rather than Isolation

Respondent argues the trial court erred in applying the standard by 

considering Respondent’s conduct in totality rather than in isolation. Accordingly, 

Respondent challenges Conclusions of Law 9 and 10.

Removal proceedings against Respondent were initiated pursuant to N.C. Gen. 

Stat. § 7A-105 which states, in part, “[a] clerk of superior court may be suspended or 

removed from office for willful misconduct[.]” N.C. Gen. Stat. § 7A-105. Our Court 

in Chastain I stated: “we construe the language ‘willful misconduct’ in Section 7A-
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105 in the context of an Article VI hearing to include only those acts of willful 

misconduct which rise to the level of ‘corruption or malpractice’ in office.” Chastain, 

281 N.C. App. at 528, 869 S.E.2d at 744. The Court further noted, “Judge Lock lacked 

authority to rely on any acts of [Respondent] that did not rise to this level to support 

his sanction under Article VI.” Id. 

This Court did not limit the scope of Judge Lock’s review to only those acts 

which independently rose to meet the corruption or malpractice standard under 

Article VI. Instead, the Court simply instructed that, upon remand, Judge Lock could 

not base his sanction—Respondent’s disqualification—upon any act which did not 

rise to the corruption or malpractice standard. Further, the Court’s holding 

instructed the trial court to limit its review to “whether the acts alleged in the 

charging affidavit before [Judge Lock] rose to the level of ‘corruption or malpractice’ 

in office under Article VI of our Constitution.” Chastain, 281 N.C. App. at 530, 869 

S.E.2d at 745–46. Neither instruction by this Court forbids or limits the trial court 

from considering Respondent’s actions in totality in order to conclude those actions

met the standard for disqualification under Article VI. 

Further, in defining the corruption or malpractice standard, this Court relied 

on precedent which allowed for such aggregation. Specifically, this Court in Chastain 

I quoted In re Martin stating, “[w]e do note that our Supreme Court has stated that 

‘persistent’ acts of ‘misconduct’ may rise to the level of ‘[willful] misconduct.’” 

Chastain, 281 N.C. App. at 528, 869 S.E.2d at 744 (quoting Martin, 302 N.C. at 316, 
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275 S.E.2d at 421). This shows our Court did not intend the “any acts” language to 

limit the scope of the trial court’s review to only those acts by Respondent which 

independently rose to meet the standard. Accordingly, we hold the trial court did not 

err in applying the standard where it considered Respondent’s actions in totality 

rather than in isolation.

Nonetheless, we address Respondent’s contention as to the trial court’s 

Conclusions of Law 9 and 10, which state:

9. Even 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, is equivalent to corruption or malpractice 

under Article VI of the Constitution of North Carolina, and 

warrants permanent disqualification from office.

10. . . . Even if each act of misconduct was insufficient to 

warrant disqualification from office independently, the 

cumulative effect of the willful misconduct is that it was 

egregious in nature, was equivalent to corruption or 

malpractice under Article VI, § 8 of the Constitution of 

North Carolina, and warrants permanent disqualification 

from office.

Respondent argues these Conclusions of Law improperly lump all of Respondent’s 

isolated conduct together to find it collectively rose to meet the standard. Our Court 

in Chastain I never limited the trial court’s review to only acts which independently 

rose to the standard. Thus, the trial court did not err in Conclusions of Law 9 or 10.

3. Findings of Fact 17, 19, 30, 37, 45, and 46; and Conclusions of Law 3, 5, 

and 7 
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Respondent specifically challenges the trial court’s Findings of Fact 17, 19, 30, 

37, 45, and 46; and Conclusions of Law 3, 5, and 7.

a. Finding of Fact 17

Respondent argues Finding of Fact 17 “erroneously states that [Respondent] 

‘went to the Franklin County Detention Center and demanded that she be allowed 

access to Machada for the purpose of having him complete an affidavit of indigency.’” 

However, the relevant portion of Finding of Fact 17 states:

Respondent went to the Franklin County Detention Center 

and sought access to Machada for the purpose of having 

him complete an affidavit of indigency. 

Respondent contends this Finding is erroneous as there is no testimony or evidence 

in the record suggesting she “demanded” anyone in the jail allow her access to 

Machada. However, not only is Finding of Fact 17 void of the word “demand,” of 

which Respondent takes issue, but Respondent’s testimony at the hearing indicates 

that on 7 March 2017, she went to the Franklin County Detention Center to see 

Machada and spoke with him for ten minutes. Finding of Fact 17 is supported by 

competent evidence and is therefore binding on appeal.

b. Finding of Fact 19

Respondent argues the trial court erred in Finding of Fact 19 which states:

When Sheriff Winstead learned of this incident, he banned 

Respondent from further visits in the detention center. 

Respondent contends “this incident” refers to the erroneous facts described in Finding 
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of Fact 17 and the record is void of evidence that Sheriff Winstead ever learned of 

Respondent’s “demand,” or that Sheriff Winstead ever offered any testimony as to the 

specific reason he decided not to let Respondent return to the jail. Finding of Fact 19 

is not erroneous as to its reference of “this incident,” for, as mentioned above, the 

word “demand” does not appear in Finding of Fact 17. Further, the trial court did not 

err where it relied on Finding of Fact 17 in making Finding of Fact 19, as Finding of 

Fact 17 is supported by competent evidence. 

Moreover, Sheriff Winstead testified at the September 2020 hearing as to 

Respondent being banned from the jail:

Q: All right. Have you been present for any of 

[Respondent’s] trips to the jail?

A: No, I have not.

Q: Okay. Are you aware of incidents that have occurred

while she has been at the jail?

. . . 

A: Yes. 

. . . 

Q: All right. As a result of incidents, have you taken any 

action?

A: I have.

Q: And what is that action?

A: I do not allow [Respondent] to come in our facilities or 

the sheriff’s office, jail, or magistrate’s office.
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. . . 

Q: As a result of any of the Machada incidents, have you 

had to take any action with regard to the clerk?

A: As a result to the Machada incidents. I mean that was 

one of the incidents that was brought as far as not letting 

her back into the jail.

This testimony provides evidentiary support for Finding of Fact 19. Because Finding 

of Fact 19 is supported by competent evidence, it is binding on appeal. 

c. Conclusion of Law 3

Respondent argues the trial court erred in Conclusion of Law 3, which states:

When Respondent, without the knowledge or authorization 

of the presiding district court judge, demanded access to 

the county jail for the purpose of obtaining an affidavit of 

indigency from a murder defendant knowing that the 

defendant already had been appointed counsel and 

afforded a first appearance before the district court judge, 

her conduct was an inappropriate intervention into the 

case and was an act beyond the legitimate exercise of 

Respondent’s authority notwithstanding the Rules of the 

North Carolina Commission on Indigent Defense Services. 

Her actions were an effort to undermine Judge Davis’ 

authority. Such willful misconduct was egregious in 

nature and is equivalent to corruption or malpractice 

under Article VI of the Constitution of North Carolina.

Respondent contends this Conclusion of Law is clearly erroneous as it relies upon a 

fact with no support from the record by stating Respondent decided to see Machada 

in jail “knowing that [Machada] already had been appointed counsel.” Respondent 

further asserts there is not a separate finding within the trial court’s order to support 

this fact.
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The above portion of Conclusion of Law 3 challenged by Respondent serves as 

an ultimate finding. An “ultimate finding is a conclusion of law or at least a 

determination of a mixed question of law and fact and should be distinguished from 

the findings of primary, evidentiary, or circumstantial facts.” In re Z.A.M., 374 N.C. 

88, 97, 839 S.E.2d 792, 798 (2020) (quotations and citations omitted). However, 

regardless of whether the trial court’s statement is considered a finding of ultimate 

fact or a conclusion of law, there must be adequate evidentiary findings of fact to 

support the ultimate finding or conclusion of law. Id. (quotations and citations 

omitted). Nevertheless, “[w]here there are sufficient findings of fact based on 

competent evidence to support the trial court’s conclusions of law, the judgment will 

not be disturbed because of other erroneous findings which do not affect the 

conclusions.” Black Horse Run Property Owners Association-Raleigh, Inc. v. Kaleel, 

88 N.C. App. 83, 86, 362 S.E.2d 619, 621 (1987) (citations omitted); see also In re 

Estate of Skinner, 370 N.C. 126, 139–40, 804 S.E.2d 449, 458 (2017). 

We agree with Respondent that the portion of Conclusion of Law 3, which 

indicates Respondent went to the detention facility knowing Machada had been 

appointed counsel, is not supported by record evidence. In fact, although Respondent 

testified she understood Judge Davis had conducted Machada’s first appearance, she 

stated she was not aware a lawyer had already been appointed. As such, this portion 

of Conclusion of Law 3, which we deem an ultimate finding, is not supported by 

adequate evidentiary findings of fact and is therefore erroneous. 
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Regardless, there are sufficient findings of fact to support Conclusion of Law 

3. The trial court’s additional findings in this Conclusion are supported by 

Respondent’s own testimony, stating, upon arriving at her office the morning of the 

incident, “[t]he staff stated that Judge Davis had come early that morning and gotten 

one of the staff to go with him to the magistrate’s office and to do the preliminary 

hearing.” Despite Respondent testifying she was unable to find an affidavit of 

indigency within Machada’s file, she was informed of Judge Davis’s involvement in 

the Machada case and did not inquire as to the affidavit of indigency before going to 

the detention center to meet with Machada. 

This evidence, in combination with the trial court’s unchallenged findings of 

fact, are sufficient to support Conclusion of Law 3. Therefore, regardless of whether 

a portion of this conclusion is erroneous, the ultimate conclusion is not. 

The trial court did not err in Conclusion of Law 3. 

d. Finding of Fact 30

Respondent contends the trial court erred in a portion of Finding of Fact 30,

which states:

Respondent told the Diazes that she was telling them the 

law in this matter, and that Judge Davis “legally” did not 

have the right to enter the orders he had entered.

Respondent argues Finding of Fact 30 erroneously states Respondent told the Diazes 

“that Judge Davis did not have the right to enter the orders he had entered” as both 

the body camera footage and transcript of the same show otherwise. However, the 
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body camera footage captured during Respondent’s conversation with Adam Diaz 

proves the opposite. Respondent references the order entered by Judge Davis and its 

contents, stating: “[Judge Davis] legally can’t say that.” This statement, within the 

footage, provides sufficient evidence to support the above Finding. Because Finding 

of Fact 30 is supported by competent evidence, it is binding on appeal.

e. Finding of Fact 37

Respondent contends Finding of Fact 37 erroneously states:

Respondent’s statements to the Diazes again evidenced a 

sympathy for Ms. Gayden and a calculated decision to act 

on Ms. Gayden’s behalf in her legal dispute with the 

Diazes. Respondent knew or should have known that her 

conduct in the dispute was well beyond the legitimate 

exercise of her authority and severely undermined the 

administration of justice. It moreover evidenced contempt 

for the legitimacy of Judge Davis’ lawful orders.

Respondent argues this Finding is not supported by competent evidence because 

Respondent had a genuine interest in hearing the concerns of both parties. Further, 

Respondent argues she engaged in a voluntary discussion with the Diazes, listened 

intently as they explained their concerns, and wished the Diazes happiness and peace 

from the long-running ordeal. Respondent contends there exists no evidence that her 

conduct was a calculated decision to intervene in the dispute solely to support 

Gayden’s position. 

To the contrary, the body camera footage, obtained during Respondent’s 

conversations with both Gayden and the Diazes, provides sufficient evidence to 
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support this Finding. On 27 December 2019, Respondent met with Gayden outside 

her home, and sympathized with Gayden as to the conflict with the Diazes stating,

“anything more I am going to look at as pure harassment, pure harassment, and it’s 

not right. It’s not right, and we’re not going to put up with it.” Further, Respondent 

repeatedly told Gayden that Adam Diaz was abusing the legal system by continually 

calling 911 and even expressed pity toward Gayden’s position in the conflict noting, 

“it sounds like, to me, that at this point, you’re getting picked on.” Respondent then 

left Gayden and went to the Diaz home to address the issue. The footage depicts

Respondent arriving at the Diaz home, and stating she was there to mediate. The 

video further shows Respondent positioning herself as an advocate for Gayden as she 

argued with Adam Diaz about every issue over which he expressed concern. 

Additionally, Respondent consistently referred to Adam Diaz’s behavior, in calling 

911, as an abuse of the judicial process. At one point, the officer on scene had to pull 

Respondent aside to correct her, stating he believed the Diazes were doing the right 

thing by calling 911 and had not been abusing the system. While, by the end of her 

encounter with the Diazes, Respondent was somewhat friendly, she entered the 

conversation with animosity toward the Diazes. 

This body camera footage is, in itself, sufficient evidence to support Finding of 

Fact 37. 

f. Conclusion of Law 5

Respondent contends the trial court improperly relied upon Finding of Fact 30 
IN RE CHASTAIN

Opinion of the Court

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in making Conclusion of Law 5, which states: 

By intervening into the legal dispute between Ann 

Elizabeth Gayden and Adam and Sarah Diaz, and by 

engaging in that conduct on 27 December 2019 described 

in paragraphs 25 through 37 of the above Findings of Fact 

and that subsequent conduct on 31 December 2019 

described in paragraph 38 of those Findings, Respondent 

engaged in conduct which tended to undermine the 

authority of John Davis, breed disrespect for his office and 

the legal processes already in place, and diminish the high 

standards of the office of Clerk of Superior Court.

Of the findings of fact mentioned here—Findings of Fact 25-38—Respondent only 

challenges Findings of Fact 30 and 37, which, as stated above, are supported by 

competent evidence. These Findings, with the other twelve unchallenged findings,

support Conclusion of Law 5. Therefore, the trial court did not err in Conclusion of 

Law 5.

g. Finding of Fact 45

Respondent challenges a portion of the trial court’s Finding of Fact 45, which 

states:

. . . Mr. Arnold heard Respondent say, “I just talked with 

the chief magistrate and he’s not going to do a thing.” He 

then heard Respondent say, “F[---] John Davis” or “F[---], 

I’m not calling John Davis” or “I don’t give a f[---] about 

John Davis.” 

Respondent argues this Finding is erroneous as it is not supported by competent 

evidence because Magistrate Arnold admitted he did not know exactly what phrase 

Respondent used but that it could have been any of the three. Magistrate Arnold 
IN RE CHASTAIN

Opinion of the Court

- 22 -

testified at the hearing: “The second thing [Respondent] said was, . . . either, f[---] 

John Davis; f[---], I’m not calling John Davis, or I don’t give a f[---] about John Davis.” 

Finding of Fact 45 includes this exact language without asserting that Magistrate 

Arnold knew exactly what Respondent said. Finding of Fact 45 is supported by 

competent evidence and is therefore binding on appeal.

h. Finding of Fact 46

Respondent argues the trial court erred in Finding of Fact 46 as it “erroneously 

concludes from the evidence [Respondent] did, in fact, say, ‘F[---] John Davis.’” 

Respondent’s argument lacks merit as the quoted language appears nowhere in 

Finding of Fact 46, which states:

Under N.C. Gen. Stat. § 7A-146, the chief district court 

judge of each judicial district is charged with the 

supervision of the magistrates in the judge’s district. The 

clerk of Superior Court has no supervisory authority over 

magistrates.

Because Respondent’s argument here does not correspond with the challenged 

Finding, Respondent’s argument lacks merit and is overruled. Thus, Finding of Fact 

46 is binding on appeal. 

i. Conclusion of Law 7

Respondent challenges a portion of Conclusion of Law 7 which states:

By publicly attempting to exercise authority over Chief 

Magistrate James Arnold on 25 June 2020—conduct 

outside the scope of her official responsibilities—and 

thereafter using vulgarity in the presence of members of 

the public to describe her feelings toward Chief District 
IN RE CHASTAIN

Opinion of the Court

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Court Judge Davis, Respondent, at a minimum, engaged in 

conduct prejudicial to the administration of justice which 

brings her office into disrepute[.]

Respondent argues this Conclusion erroneously states Respondent engaged in 

improper conduct by using vulgarity to describe her feelings toward Judge Davis. 

However, Finding of Fact 45, which was supported by competent evidence, indicates 

Respondent used vulgarity to describe her feelings toward Judge Davis. Because the

trial court’s findings of fact support this Conclusion, the trial court did not err. 

4. Respondent’s Conduct and Resulting Disqualification

We now review Respondent’s conduct to determine whether the trial court 

properly disqualified Respondent from office, having concluded she acted in a manner 

which rose to the corruption or malpractice standard. 

Respondent addresses four instances of misconduct—The Affidavit of 

Indigency, The Gayden/Diaz Home Visit, The Magistrate Arnold Phone Call, and The 

Audit—arguing her actions do not rise to the corruption or malpractice standard. 

a. Respondent’s Conduct

The trial court’s Findings of Fact reflect the following:

The Affidavit of Indigency

On or about 6 March 2017, the defendant, Machada, was arrested for firstdegree murder. On 7 March 2017, Sheriff Winstead informed the District Attorney, 

Mr. Waters, he did not want to transport Machada to the courtroom for a first 

appearance as he considered Machada dangerous and a security risk. District 
IN RE CHASTAIN

Opinion of the Court

- 24 -

Attorney Waters then asked Judge Davis to conduct Machada’s first appearance in 

the county jail and Judge Davis agreed. Machada was uncommunicative during his 

first appearance. Thus, Judge Davis did not ask Machada to complete an affidavit of 

indigency regarding the appointment of counsel. 

Later that day, Respondent looked at Machada’s file and did not find a 

completed affidavit of indigency. A member of Respondent’s staff told her Judge 

Davis had conducted Machada’s first appearance earlier that morning. 

Notwithstanding this information and without speaking to Judge Davis, Respondent 

went to the Franklin County Detention Center, met with Machada, and had him 

complete an affidavit of indigency. 

After discovering Respondent’s actions in visiting with Machada, Sheriff 

Winstead banned Respondent from further visits in the detention center, as well as 

the Sheriff’s Office and Magistrate’s Office. Sherriff Winstead stated the Machada 

incident was only one of the incidents involving the Respondent he considered in 

making the decision. 

The Gayden/Diaz Home Visit

On 27 December 2019, Respondent went to the neighboring properties of Ann 

Gayden and Adam and Sarah Diaz to mediate an ongoing dispute between the two. 

Respondent was aware of the dispute and knew Judge Davis had entered no-contact 

orders against Gayden and in favor of the Diazes. These orders were still in effect. 

Respondent called the Sheriff’s Office and asked a deputy to meet her at the 
IN RE CHASTAIN

Opinion of the Court

- 25 -

properties. Deputy Dailey met Respondent on scene and witnessed interactions 

between Respondent and both Gayden and the Diazes. He captured the interactions 

on his body camera. Respondent went to Gayden and told her she believed Gayden 

was being picked on and harassed. Respondent also told Gayden that Adam Diaz 

was abusing the system by calling 911 and would be criminally charged if he 

continued to do so. 

Next, Respondent went to the Diaz home and confronted Adam Diaz, stating, 

“I have a right and an obligation lawfully to come out here and mediate this.” 

Respondent also stated she had jurisdiction over the entire county and was obligated 

by law to mediate the case. Respondent continued to refer to Adam Diaz’s behavior, 

in calling 911, as an abuse of the judicial process until Deputy Dailey pulled her aside 

and told her it was not. Additionally, in speaking about the restraining order, 

Respondent told Adam Diaz, “as far as I’m concerned its for both of you” and even 

stated, in reference to the order, “[Judge Davis] legally can’t say that.” When Adam 

Diaz told Respondent she was speaking contrary to what Judge Davis had told them, 

she responded: “I’m telling you the law.” When the Diazes complained Gayden had a 

drinking problem, Respondent told them to request Gayden have an assessment. The 

Diazes said they had asked for one previously but the judge said “they didn’t have the 

power to do that[.]” Respondent then stated, “yes you do. Based on the evidence that 

I’ve heard, this would help her[,]” even noting she had the authority to, and would, 

order Gayden’s assessment herself.
IN RE CHASTAIN

Opinion of the Court

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On 31 December 2019, Respondent directed one of her employees to file a copy 

of Gayden’s deed containing the easement across the Diazes’ property in two of the 

lawsuits Gayden had filed against the Diazes. In both case files, Respondent 

handwrote “Ms. Ann Gayden has legal right of way to travel per easement to her 

property” in the margin of the deed. Respondent did not consult with and was not 

authorized by Judge Davis or any other district court judge before she did so, nor did 

she inform any district court judge or the Diazes’ attorney she had placed this 

document in the case files thereafter. 

The Magistrate Arnold Phone Call

On 25 June 2020, Franklin County Chief Magistrate James Arnold received a 

phone call from Respondent. She was yelling and often incoherent during the 

conversation. Respondent said she was at Magistrate Arnold’s office and had several 

people with her who wanted to talk with a magistrate. She then demanded 

Magistrate Arnold send a magistrate to talk with the people. Magistrate Arnold 

stated he would not send a magistrate without knowing more information and asked 

Respondent to let him speak with the people, but she refused. Respondent threatened 

to give out Magistrate Arnold’s personal phone number or post her own number on 

the door of the Magistrate’s Office. Magistrate Arnold requested she not do either 

and said he would talk with her the next day. He suggested she contact Judge Davis 

if she wanted to complain about the Magistrate’s Office. Respondent stated she was 

not going to call Judge Davis and Magistrate Arnold ended the phone call. Nearly 30 
IN RE CHASTAIN

Opinion of the Court

- 27 -

to 45 seconds later, Magistrate Arnold’s cell phone rang. He knew Respondent was 

calling and could tell, after answering, she had inadvertently called. Magistrate 

Arnold heard Respondent say, “I just talked with the chief magistrate and he’s not 

going to do a thing.” He then heard Respondent say, “F[---] John Davis” or “F[---], I’m 

not calling John Davis” or “I don’t give a f[---] about John Davis.” 

The Audit

Pursuant to the North Caroline State Auditor’s duty to periodically examine 

and report on the financial practices of state agencies and institutions, the State 

Auditor’s office conducted a performance audit of the Franklin County Clerk of 

Court’s office for the period from 1 July 2019 through 31 January 2020. The Auditor 

thereafter published a written report of the Auditor’s findings. Although the Auditor 

found no evidence of embezzlement or misappropriation of funds, several deficiencies 

in internal control and instances of noncompliance that were considered reportable 

were identified, including: untimely completion of bank reconciliations; failure to 

identify and transfer unclaimed funds to the State Treasurer or rightful owner; 

failure to compel estate inventory filings or fee collection; failure to compel inventory 

filings or assess and collect sufficient bonds for estates of minors and incapacitated 

adults; and failure to accurately disburse trust funds held for minors and 

incapacitated adults. 

Further, in Respondent’s response to the audit, she admitted: new employees 

were not properly trained in preparing bank reconciliations or on the escheat process; 
IN RE CHASTAIN

Opinion of the Court

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her office failed to document evidence of its requests to compel estate inventory 

filings; her staff made unintentional mistakes in calculating inventory fees and not 

collecting the required amounts; and monitoring procedures were not in place to 

ensure the reconciling adjustments were entered into the financial management 

system, to ensure funds were transferred and apparent owners notified, to ensure 

inventories were compelled timely and bonds were sufficient for the guardianship 

estates, or to ensure trust funds were accurately disbursed.

b. Resulting Disqualification

Our Court in Chastain I defined the corruption or malpractice standard to 

include acts of willful misconduct which are egregious in nature. See Supra. III.A. 

Upon remand, the trial court relied on this definition to disqualify Respondent. Thus, 

we do the same, noting as our Supreme Court did in In re Peoples, that in order to 

properly appraise Respondent’s conduct we need only ask one question: “What would 

be the quality of justice and the reputation of the courts, if every clerk, exercised the 

duties of her office in the manner Respondent did here?” See Peoples, 296 N.C. at

156, 250 S.E.2d at 917.

Respondent was the Clerk of Superior Court of Franklin County for six years. 

This time in office is significant. Respondent knew, or should have known, the duties 

and ethical responsibilities of her office. See N.C. Gen. Stat. § 7A-103 (“Authority of 

clerk of superior court.”). Conversely, Respondent continually acted outside the scope 

of her position as Clerk and engaged in misconduct. This misconduct not only 
IN RE CHASTAIN

Opinion of the Court

- 29 -

undermined the authority of Judge Davis and other judges in the county but brought 

the judicial system into disrepute.

Respondent knew Judge Davis had already conducted Machada’s first 

appearance. Nonetheless, she went to the detention center, without advisement from 

Judge Davis, and held a meeting with Machada. In doing so, Respondent acted in a 

manner prejudicial to the administration of justice and undermined the authority of 

Judge Davis. Additionally, Respondent was willfully persisting in misconduct such 

that Sherriff Winstead testified he had prior issues with Respondent—to the extent 

that, upon learning of this incident, he was forced to ban Respondent from entering 

the Sheriff’s Office, jail, and Magistrate’s Office.

In another instance, Respondent, despite knowing the Clerk of Superior Court 

has no supervisory authority over magistrates, called Magistrate Arnold and 

demanded he send a magistrate to speak with people waiting outside the Magistrate’s

Office. Further, Respondent unequivocally acted with conduct prejudicial to the 

administration of justice which inevitably brought the judicial office into disrepute 

by speaking with absolute vulgarity about Judge Davis stating: “F[---] John Davis” or 

“F[---], I’m not calling John Davis” or “I don’t give a f[---] about John Davis.” This was 

done in the presence of citizens of Franklin County. 

Even without considering the above instances, Respondent’s conduct in the 

Gayden/Diaz dispute, alone, was sufficient to warrant her disqualification. There is 

no procedure which calls for the mediation of actions like the one in which Gayden 
IN RE CHASTAIN

Opinion of the Court

- 30 -

and the Diazes were involved. Respondent also engaged a represented party as the 

Diazes had an attorney in this matter. The Clerk of Superior Court certainly 

understands their role is not to try and practice law, much less with a represented 

party. Regardless, Respondent went to the properties of each and professed it was 

her legal duty to mediate their dispute. Despite being aware of the order issued by 

Judge Davis concerning the matter, Respondent continued to try and mediate the 

situation. These acts with Respondent’s additional statements severely undermined

the administration of justice and the authority of Judge Davis as Respondent made

claims about the order stating, “[Judge Davis] legally can’t say that.” Moreover, 

Respondent did not have the authority to modify official court files in connection with 

the Gayden-Diaz dispute. Yet, she instructed a member of her staff to file several 

deeds on which she made handwritten notes without authorization and without 

notifying anyone thereafter.

Here, Respondent knowingly persisted in misconduct as she consistently acted 

beyond the scope of her authority as Clerk. Further, she acted in a manner 

prejudicial to the administration of justice in continuing to undermine the authority 

of both Judge Davis and other judges within the district by questioning their 

judgment, condemning court orders, and in altering and filing deeds without 

authorization. The Clerk of Superior Court knows that these actions are beyond the 

duties of that office. Respondent’s conduct rose to meet the corruption or malpractice 

standard as Respondent’s actions constituted willful misconduct which was egregious 
IN RE CHASTAIN

Opinion of the Court

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in nature.

Having reviewed the above instances of Respondent’s conduct, we hold 

Respondent was properly disqualified as her conduct amounted to corruption or 

malpractice. 

C. Chastain I

Notwithstanding our holding here, we emphasize our discrepancies with the 

Court’s opinion in Chastain I. 

Undoubtedly, in congruence with our Court’s opinion in Chastain I, we 

recognize Article IV, section 17, authorizes the removal of a superior court clerk who 

engages in misconduct. N.C. Const. art. IV, § 17. Further, we agree that, pursuant 

to Article IV, section 17(4), none other than Judge Dunlow could preside over 

Respondent’s removal proceeding. Chastain, 281 N.C. App. at 522, 869 S.E.2d at 741 

(“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. Accordingly, no other judge may be conferred with jurisdiction over the 

subject matter of removing a Clerk for misconduct under Article IV.”). 

However, our Court in Chastain I held, as an alternative, Article VI, section 8, 

authorizes the removal of a superior court clerk “as a consequence of being 

disqualified from holding any office under Article VI where she is ‘adjudged guilty of 

corruption or malpractice in any office.’” Chastain, 281 N.C. App. at 524–25, 869 
IN RE CHASTAIN

Opinion of the Court

- 32 -

S.E.2d at 742 (quoting N.C. Const. art. VI § 8) (emphasis omitted). With this, we 

disagree. 

Article VI, section 8 of our Constitution states:

The following persons shall be disqualified for office:

. . . any person who has been adjudged guilty of corruption 

or malpractice in any office, or any person who has been 

removed by impeachment from any office, and who has not 

been restored to the rights of citizenship in the manner 

prescribed by law.

N.C. Const. art. VI, § 8. This article concerns disqualification for office, not removal 

from office. Based on the plain language contained in the constitutional provisions—

Article IV, section 17(4), specifically references removal while Article VI, section 8, 

concerns only disqualification—coupled with the fact that Article IV, section 17, is 

specifically titled “Removal of Judges, Magistrates, and Clerks” while Article VI, 

section 8, is titled “Disqualifications for office” we can be certain that Article VI is a 

disqualification provision only and not one of removal. For, if it was intended Article 

VI serve, alongside Article IV, as an additional means for removal from office, Article 

VI would have been drafted in the same manner as Article IV.

Further, our Court in Chastain I erroneously effectuates N.C. Gen. Stat. § 7A105 as a procedural mechanism for disqualification under Article VI of our State 

Constitution when it was only intended as a procedural mechanism for removal of 

clerks under Article IV.
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Opinion of the Court

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Chapter 7A, section 105, of the North Carolina General Statutes, titled “§ 7A105. Suspension, removal, and reinstatement of clerk[,]” states:

A clerk of superior court may be suspended or removed 

from office for willful misconduct or mental or physical 

incapacity, and reinstated, under the same procedures as 

are applicable to a superior court district attorney, except 

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, and the hearing shall be conducted by the 

senior regular resident superior court judge serving the 

county of the clerk’s residence. If suspension is ordered, 

the judge shall appoint some qualified person to act as clerk 

during the period of the suspension.

N.C. Gen. Stat. § 7A-105. This statute is a procedural mechanism for removal of 

clerks under Article IV of our State Constitution alone, as, by its plain language, the 

statute offers no guidance as to how someone may be disqualified for office. 

However, our Court, in Chastain I, relied on Peoples to hold otherwise. In 

Peoples, our Supreme Court noted the long, complicated history of Article VI, section 

8, specifically citing a major revision in our State Constitution in 1971. Peoples, 396 

N.C. at 165, 250 S.E.2d at 922. Our Supreme Court further explained the revision 

“extended the bar against office holding persons found guilty of committing a felony 

against the United States or another state and substituted the phrase ‘adjudged 

guilty’ for the term ‘convicted.’” Id. at 166, 250 S.E.2d at 923. Moreover, the Court 

concluded:

[T]he substitution of the term “adjudged guilty” for the 

term “convicted” permits the General Assembly to 

prescribe proceedings in addition to criminal trials in 
IN RE CHASTAIN

Opinion of the Court

- 34 -

which an adjudication of guilt will result in disqualification 

from office.

Id. Relying on this conclusion, the Court in Peoples analyzed N.C. Gen. Stat. § 7A376, a statute which bars a judge from future judicial office when he has been 

removed for willful misconduct stating, in relevant part:

(b) Upon recommendation of the Commission, the Supreme 

Court may . . . remove any judge for willful misconduct in 

office, . . . or conduct prejudicial to the administration of 

justice that brings the judicial office into disrepute. . . . A 

judge who is removed for any of the foregoing reasons . . . is 

disqualified from holding further judicial office. 

N.C. Gen. Stat. § 7A-376 (2021) (emphasis added). The Court held this statute was 

enacted pursuant to the General Assembly’s power to “prescribe proceedings in 

addition to criminal trials in which an adjudication of guilt will result in 

disqualification from office” under Article VI. Peoples, 296 N.C. at 166, 250 S.E.2d at 

923. Further, the Court held, through this statute, the General Assembly was acting 

within its power when it made disqualification from judicial office a consequence of 

removal. Id. 

Like the Court in Peoples, we too recognize the General Assembly’s right to 

prescribe procedure for disqualification, but unlike the Court in Peoples, we must 

apply N.C. Gen. Stat. § 7A-105, a statute which can be distinguished from section 7A376 as it applies only to clerks, not judges, and lacks any reference to disqualification 

at all. Further, we must presume our General Assembly intentionally refrained from, 

or has yet to consider, including disqualification as a consequence of removal under 
IN RE CHASTAIN

Opinion of the Court

- 35 -

section 7A-105 as the General Assembly included specific language referencing 

disqualification as a consequence of removal under section 7A-376. See Rodriguez v. 

United States, 480 U.S. 522, 525 (1987) (citations omitted) (“Where Congress includes 

particular language in one section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion.”); see also State v. McCants, 275 N.C. App. 801, 

822, 854 S.E.2d 415, 430 (2020). 

Aside from noting the General Assembly can provide a procedural mechanism 

for disqualification of clerks but has yet to do so, we must point out that our Court in 

Chastain I sought to hold removal proper as a consequence of disqualification. See 

Chastain, 281 N.C. App. at 524, 869 S.E.2d at 741. Our Supreme Court in Peoples

only held the General Assembly acted within their authorization to create a statute, 

concerning judges, under which disqualification was a consequence of removal and 

not vice versa. As Peoples and Chastain I differ in this way, we find no authority 

under which removal has been considered as a consequence of disqualification. 

While we recognize a person currently in office, who is disqualified for any 

future office pursuant to Article VI, section 8, after being adjudged guilty of 

corruption or malpractice in office, should likely be removed from the office they

currently hold, neither our Constitution nor our General Statutes provide for removal 

upon disqualification. 
IN RE CHASTAIN

Opinion of the Court

- 36 -

We do not take issue with the Court’s interpretation of the corruption or 

malpractice standard under Article VI. We only note the Court’s application of the 

standard as to removal, together with its application and recognition of N.C. Gen. 

Stat. § 7A-105 as a procedural mechanism for disqualification, was in error as the 

standard applies only to disqualification and the statute only serves as a procedural 

mechanism for removal. As such, our Court, in Chastain I, should have remanded 

the matter for further proceedings by Judge Dunlow under Article IV without 

instructing on an alternative method for removal.

IV. Conclusion

In congruence with our Court’s opinion in Chastain I, we hold the trial court 

did not commit error in ordering Respondent permanently disqualified from serving 

in the Office of Clerk of Superior Court of Franklin County, pursuant to Article VI of 

the North Carolina Constitution, as Respondent’s conduct amounted to nothing less 

than corruption or malpractice. 

AFFIRMED.

Judge FLOOD concurs. 

Judge Wood dissents by separate opinion.
No. COA22-649 – In re Chastain

WOOD, Judge, dissenting.

The outcome of this matter is of significant importance to North Carolina 

jurisprudence and future interpretation of the North Carolina Constitution. Review 

of an order removing an elected judicial official is one of the “most serious 

undertaking[s]” in which an appellate court may engage. In re Hayes, 356 N.C. 389, 

406, 584, S.E.2d 260, 270 (2002). Our Supreme Court has instructed that Article VI 

“expressly limit[s] disqualifications to office for those who are elected by the people to 

those disqualifications set out in the Constitution.” Baker v. Martin, 330 N.C. 331, 

339, 410 S.E.2d 887, 892 (1991) (emphasis added). Article VI, Section 8 requires that 

“any person who has been adjudged guilty of corruption or malpractice in any office” 

shall be disqualified from holding office. Because this is an ultimate consequence, 

conduct must rise to the high constitutional standard of egregious and willful 

misconduct so as to constitute “corruption or malpractice” before an elected official 

may be permanently disqualified from office. Because I believe the trial court’s 

findings of fact do not support its conclusion that Ms. Chastain’s actions were so 

egregious as to warrant permanent disqualification from office, I respectfully dissent 

from the majority opinion.

I. Background

Ms. Chastain began service as the Franklin County Clerk of Superior Court on 

1 May 2013, having been appointed by the Honorable Judge Robert J. Hobgood, who 

was the senior Resident Superior Court Judge of Franklin County. The people of 
IN RE CHASTAIN

Wood, J., dissenting

2

Franklin County, thereafter, elected Ms. Chastain to be their Clerk of Superior Court 

in 2014 and re-elected her to that position in 2018. It is clear from the record that, 

over the course of her service as Clerk of Superior Court, animosity grew between Ms. 

Chastain and certain officers of the court and other civil servants in Franklin County.

This animosity climaxed in 2020 after a local attorney commenced an action 

seeking the removal of Ms. Chastain from office, pursuant to N.C. Gen. Stat. § 7A105, by filing an affidavit alleging that she had committed acts of willful misconduct. 

The charging affidavit alleged several acts of misconduct that the affiant had not 

personally witnessed. Superior Court Judge Thomas H. Lock presided over the 

matter during a hearing which took place from 28 September 2020 to 30 September 

2020. On 16 October 2020, the trial court ordered that Ms. Chastain be removed from 

office and permanently disqualified from holding office as Clerk of Superior Court. 

Ms. Chastain appealed. For reasons further explained in Chastain I, this Court 

vacated the order and remanded the matter to the trial court on 1 February 2022. 

This Court reasoned, if Senior Resident Superior Court Judge John Dunlow were to 

hear the matter on remand, the court could utilize the lesser standard specified in 

Article IV to remove Ms. Chastain from office. If, however, Judge Lock were to rehear 

the matter, the court could only utilize the higher standard specified in Article VI.

On remand, Judge Lock again presided over the matter and ordered that Ms. 

Chastain be permanently disqualified and removed from office, this time in professed 

accordance with Article VI of the North Carolina Constitution. Ms. Chastain once 
IN RE CHASTAIN

Wood, J., dissenting

3

more appeals to this Court pursuant to Article IV, Section 17(4) of our Constitution, 

alleging, among other things, that the trial court committed error when it concluded 

that the alleged misconduct merited her disqualification and removal from office.

II. Standard of Review

In Clerk of Superior Court removal proceedings before the trial court, the 

Affiant bringing charges bears the burden of proof, by “clear, cogent and convincing 

evidence,” that grounds exist for removal. In re Cline, 230 N.C. App. 11, 21, 749 

S.E.2d 91, 98 (2013). Accordingly, we must determine whether the trial court’s 

“findings of fact are adequately supported by clear and convincing evidence, and in 

turn, whether those findings support its conclusions of law.” In re Hill, 368 N.C. 410, 

416, 778 S.E.2d 64, 68 (2015). 

When reviewing the conduct of an elected Clerk of Superior Court, it must be 

noted that our Supreme Court held: 

Absent evidence to the contrary, it will always be presumed 

“that public officials will discharge their duties in good 

faith and exercise their powers in accord with the spirit and 

purpose of the law. . . . Every reasonable intendment will 

be made in support of the presumption.” 

Styers v. Phillips, 277 N.C. 460, 473, 178 S.E.2d 583, 591 (1971) (quoting Huntley v. 

Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961)).

We review the trial court’s conclusions of law de novo on appeal. In re K.J.D., 

203 N.C. App. 653, 657, 692 S.E.2d 437, 441 (2010). “Under a de novo standard of 

review, this Court considers the matter anew and freely substitutes its own judgment 
IN RE CHASTAIN

Wood, J., dissenting

4

for that of the trial court.” Reese v. Mecklenburg Cnty., 200 N.C. App. 491, 497, 685 

S.E.2d 34, 38 (2009) (citations omitted).

III. Discussion

Our elected judicial officials, including our Clerks of Superior Court, are 

entrusted by the people with the administration of justice on their behalf. N.C. Const. 

art. I, § 2. Thus, where our elected officials are “drawn from the same fountain of 

authority, the people,” and where our Constitution allows for the removal of an 

elected official by a like official, such removal must be effectuated with the utmost 

care and respect for the people’s will—and not purely as a result of internal, 

oligarchical enmity. The Federalist No. 51 (James Madison). 

The Clerk of Superior Court is a constitutional officer, whose office is 

established by Article IV, Section 9(3) of our Constitution. Our Constitution provides 

the avenues by which an elected Clerk may be removed. As Chastain I reasoned, 

Article VI is the only constitutional provision applicable to the disqualification and, 

consequentially, removal of an elected clerk when a judge other than the senior 

resident superior court judge adjudicates the matter. Chastain I, 281 N.C. App. 520, 

529, 869 S.E.2d 738, 745 (2022). Though the senior resident superior court judge 

could have presided over the matter under the Rule of Necessity as explained in 

Chastian I, Judge Lock presided, and therefore, Article VI is the controlling 

constitutional provision.

Under Article VI, Section 8, “any person who has been adjudged guilty of 
IN RE CHASTAIN

Wood, J., dissenting

5

corruption or malpractice in any office” shall be disqualified from holding public 

office. N.C. Const. art. VI, § 8. If a person elected to public office becomes disqualified 

from office, it necessarily follows that the person may no longer serve in that office 

and must be removed. See Chastain I, 281 N.C. App. at 527, 869 S.E.2d at 744 

(discussing removal under Article VI). For purposes of disqualification after being 

“adjudged guilty of corruption or malpractice,” removal from office is effectuated upon 

adjudication. By the plain language of this provision, it is clear the drafters intended 

only for the most egregious conduct to apply, including disqualification by 

impeachment, being found guilty of treason, being found guilty of a felony, or being 

adjudged guilty of corruption or malpractice in office. This Court construed this 

“corruption or malpractice” standard “to include at a minimum acts of willful 

misconduct which are egregious in nature.” Id. at 528, 869 S.E.2d at 744 (emphasis 

added) (citing In re Peoples, 296 N.C. 109, 166, 250 S.E.2d 890, 923 (1978)). Implicit 

in this expression and as supported by our caselaw, the “corruption or malpractice” 

standard of Article VI requires more than mere “misconduct” or even “willful 

misconduct”; it requires egregious and willful misconduct.

The North Carolina Supreme Court has defined corruption as “[t]he act of an 

official or fiduciary person who unlawfully and wrongfully uses his station or 

character to procure some benefit for himself or for another person, contrary to duty 

and the rights of others.” State v. Agnew, 294 N.C. 382, 392–93, 241 S.E.2d 684, 691 

(1978) (quoting State v. Shipman, 202 N.C. 518, 540, 163 S.E. 657, 669 (1932)). It 
IN RE CHASTAIN

Wood, J., dissenting

6

requires proof of an unlawful or fraudulent intent. Id. Multiple other crimes 

resulting from misconduct in public office are set forth in our General Statutes. See

N.C. Gen. Stat. §§ 14-228 to -248 (2022). Offenses of public office which require a 

corrupt or fraudulent intent or involve leveraging public office to unlawfully obtain a 

material benefit are charged as felonies; whereas charges of failure to properly 

discharge duties or misuse of confidential information are misdemeanors. Id.

Being “adjudged guilty of malpractice” is not defined under our statutes. I 

agree with the proposition advanced by Respondent that, arguably, the nearest 

analogy is a civil claim for professional malpractice damages. To establish a civil 

claim for professional malpractice, the plaintiff must show: the nature of the 

defendant’s profession; the defendant’s duty to conform to a certain standard of 

conduct; a breach of duty; and proximate cause of harm to the claimant. Reich v. 

Price, 110 N.C. App. 255, 258, 429 S.E.2d 372, 374 (1993), cert. denied, 334 N.C. 435, 

433 S.E.2d 178 (1993). In contrast, for the criminal offense of willful failure to 

discharge duties in office under N.C. Gen. Stat. § 14-230, which is subject to only a 

misdemeanor sentence and subsequent removal from office, it must be evidenced that 

the defendant is an official of a state institution; the official willfully failed to 

discharge the duties of his office; and the act or omission resulted in injury to the 

public. State v. Birdsong, 325 N.C. 418, 422, 384 S.E.2d 5, 7 (1989). It can be inferred 

then that “malpractice in office” under Article VI requires at a minimum not only the 

specific intent to willfully violate one’s official duties under the law but also proof that 
IN RE CHASTAIN

Wood, J., dissenting

7

such conduct was egregious and proximately caused injury to the claimant or the 

public.

In re Peoples provides helpful context under this high standard. 296 N.C. 109, 

250 S.E.2d 890 (1978). There, our Supreme Court disqualified a former district court 

judge from holding any elected office pursuant to Article VI after the Judicial 

Standards Commission instituted an action against him and recommended he be 

removed from office. For several years, the judge had, among other things, repeatedly 

removed certain cases from the active trial docket and into the judge’s indefinitely 

pending “personal file” and had accepted money from defendants for “court costs” that 

were never received by the clerk’s office. Id. at 155–56, 250 S.E.2d at 917. Prior to a 

hearing on the action brought by the Judicial Standards Commission, the judge in 

that case resigned, and the removal power of Article IV no longer had effect. 

However, our Supreme Court permanently disqualified him from public office under 

Article VI due to the egregious nature of the judge’s conduct. Discussing what “guilty” 

means in Article VI, our Supreme Court held that “[t]he word guilty connotes evil, 

intentional wrongdoing and refers to conscious and culpable acts.” Id. at 165, 250 

S.E.2d at 922. In re Peoples is one of the only cases that directly contemplates Article 

VI, and its holding reinforces the notion that disqualification under Article VI is an 

extreme consequence. 

For lack of caselaw regarding Article VI disqualifications, Ms. Chastain 

provides this Court with an exhaustive list of cases involving the removal of elected 
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Wood, J., dissenting

8

officials under Article IV. Article IV allows for the removal of a clerk of superior court 

“for misconduct or mental or physical incapacity.” N.C. Const. art. IV, § 17. Article 

IV’s “misconduct” standard presents a lesser standard than Article VI’s “corruption 

or malpractice” standard, Chastain I, 281 N.C. App. at 525, 869 S.E.2d at 742, yet all 

of our Article IV cases evidence acts substantially more egregious in nature than Ms. 

Chastain’s alleged misconduct, even when viewed in the light most damning to Ms. 

Chastain.

In one example, our Supreme Court upheld the removal of a district attorney 

who, while in the early morning hours at a bar, repeatedly yelled “ni--er” to another 

patron and engaged in “other improper conduct” before being forcefully removed. In 

re Spivey, 345 N.C. 404, 408, 480 S.E.2d 693, 695 (1997). In another case, a district 

court judge was removed for accepting multiple cash bribes. In re Hunt, 308 N.C. 

328, 330, 302 S.E.2d 235, 236 (1983). Still more, a superior court judge was properly 

removed after eliminating conditions of a probationer without notice to the district 

attorney, sexual misconduct, and coercing an assistant district attorney to “help” the 

judge’s former mistress in a DWI case. In re Kivett, 309 N.C. 635, 309 S.E.2d 442 

(1983); see also In re Sherill, 328 N.C. 719, 403 S.E.2d 255 (1991) (judge possessed 

marijuana, cocaine, and drug paraphernalia); In re Cline, 230 N.C. App. 11, 749 

S.E.2d 91 (2013) (district attorney repeatedly and publicly accusing a judge of 

“intentional and malicious conduct” such that his “hands are covered with the blood 

of justice” and other invectives made with actual malice).
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Wood, J., dissenting

9

In the present matter, Ms. Chastain’s conduct, even if willful and considered 

in isolation or combination, was not egregious as to merit her disqualification and 

removal from the elected office of Clerk of Superior Court. The trial court relied upon 

four instances of misconduct in its findings of fact before concluding that Ms. 

Chastain’s conduct “warrant[ed] permanent disqualification from office.”

A. Affidavit of Indigency

In the first instance, the trial court found that Ms. Chastain “demanded access 

to the county jail for the purpose of obtaining an affidavit of indigency from a murder 

defendant knowing that the defendant already had been appointed counsel.” The 

findings as to this event are as follows:

15. On or about 6 March 2017, the Franklin County 

Sheriff’s Office arrested an individual named Oliver Funes 

Machada for the first degree murder of his mother by 

decapitating her. Sheriff Kent Winstead telephoned 

District Attorney Waters and asked him to come to the 

crime scene. Later that day, either a district court judge or 

Indigent Defense Services appointed provisional counsel 

for Machada.

16. The next morning, 7 March 2017, the Sheriff 

informed Mr. Waters that he did not want to transport 

Machada to the courtroom for a first appearance because 

he considered Machada dangerous and a security risk. Mr. 

Waters then asked Chief District Court Judge John Davis 

if he would conduct Machada’s first appearance in the 

county jail, and Judge Davis agreed. Machada was 

uncommunicative during his first appearance. Judge 

Davis did not ask Machada to complete an affidavit of 

indigency regarding the appointment of counsel.

17. Later that day, Respondent looked at Machada’s 
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Wood, J., dissenting

10

court file and observed that there was not a completed 

affidavit of indigency in it. A member of Respondent’s staff 

told her that Judge Davis already had conducted 

Machada’s first appearance earlier that morning. 

Notwithstanding this information and without speaking to 

Judge Davis, Respondent went to the Franklin County 

Detention Center and sought access to Machada for the 

purpose of having him complete an affidavit of indigency. 

In so doing, Respondent interfered with a matter that 

Judge Davis already had addressed.

18. Rules 1.4 and 2A.2 promulgated by North 

Carolina Commission on Indigent Defense Services require 

a defendant to complete and sign a sworn affidavit of 

indigency in every case in which counsel is appointed. Rule 

1.1(4) further provides: “When these rules describe the 

functions a court performs, the term ‘court’ includes clerks 

of superior courts.” Nonetheless, Respondent’s 

intervention in these proceedings, after Machada already 

had been afforded a first appearance, was improper.

19. When Sheriff Winstead learned of this incident, 

he banned Respondent from further visits in the detention 

center.

From this, the trial court concluded as a matter of law that, by having the defendant 

fill out this indigency form after he had been appointed counsel, Ms. Chastain’s 

actions were “an inappropriate intervention into the case and was an act beyond the 

legitimate exercise of Respondent’s authority notwithstanding the Rules of the North 

Carolina Commission on Indigent Defense Services” and “were an effort to undermine 

Judge Davis’[s] authority” and that “[s]uch willful misconduct was egregious in 

nature and is equivalent to corruption or malpractice under Article VI.” I disagree.

The trial court recognized that Ms. Chastain had the authority and 
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Wood, J., dissenting

11

responsibility under “Rules 1.4 and 2A.2 promulgated by North Carolina Commission 

on Indigent Defense Services” to “require a defendant to complete and sign a sworn 

affidavit of indigency in every case in which counsel is appointed.” The trial court 

further found that “Rule 1.1(4) further provides: ‘When these rules describe the 

functions a court performs, the term “court” includes clerks of superior courts.’ ” Yet 

despite recognizing this responsibility, the trial court found Ms. Chastain’s conduct 

to be improper. Truly, respect for a judge’s authority, especially by one employed in 

the administration of justice, is necessary for the proper reverence of our institution. 

Perhaps it was true that Ms. Chastain, on this occasion, succumbed in some small 

way to that familiar tinge of frustration and took matters upon herself to complete 

that which the judge neglected to do. The record does more than hint at the animosity 

surrounding the officials here. However, this single occurrence of alleged misconduct, 

if it could be called misconduct at all, was not so egregious as to support the 

disqualification and removal of a democratically elected clerk from office under 

Article VI.

I also note that Ms. Chastain testified that she was unaware that an attorney 

had actually been appointed to Machada prior to his signing an affidavit of indigency, 

and no evidence was introduced to challenge this understanding. Nevertheless, even 

taken as true, the findings do not support the conclusion that Ms. Chastain’s actions 

breached the high standard of egregious and willful misconduct necessary to warrant 

disqualification from office. 
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Wood, J., dissenting

12

B. Dispute Between Neighbors

In the second instance, the trial court found that Ms. Chastain improperly 

intervened in an easement dispute between two neighbors, against one of whom 

Judge Davis had previously entered a no-contact order. The dispute had been ongoing 

between the parties for several years. The trial court found the following:

25. On the morning of 27 December 2019, a Franklin 

County resident named Ann Elizabeth Gayden came to the 

Office of the Clerk of Superior Court and complained to 

Respondent about an ongoing dispute with her neighbors, 

Adam and Sarah Diaz, concerning an easement. 

Respondent was familiar with Ms. Gayden and was aware 

of the dispute. Respondent specifically was aware that 

Chief District Court Judge John Davis, pursuant to 

Chapter 50-C of the General Statutes of North Carolina, 

had entered no-contact orders against Ms. Gayden and in 

favor of the Diazes on 20 February 2019, and Respondent 

knew those orders were still in effect.

26. Respondent decided to go [to] the properties of 

Ms. Gayden and the Diazes. She called the Franklin 

County Sheriff’s Office and asked that a deputy meet her 

there. Although Respondent testified that she believed Ms. 

Gayden was experiencing some sort of crises, she also 

testified that she went to the Diazes’ residence for a social 

visit. Respondent’s testimony in this regard was 

inconsistent. The court further finds it to be disingenuous 

and an attempt to minimize the seriousness of her 

interference in the Gayden-Diaz dispute.

27. Sheriff’s Deputy Justin Dailey was dispatched 

to the scene, and he arrived at approximately 11:18 a.m. on 

27 December 2019. He thereafter witnessed the 

interactions between Respondent and Ms. Gayden and 

Respondent and the Diazes. Deputy Dailey moreover 

recorded these interactions on the body camera he was 

wearing. Deputy Dailey’s recording was received in 
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Wood, J., dissenting

13

evidence as Affiant’s Exhibit 1.

28. Respondent met first with Ms. Gayden, who was 

visibly upset. Respondent told Ms. Gayden, among other 

things, that Ms. Gayden legally owned the easement and 

had a right to enter the driveway, that she (Respondent) 

was going to enter an order that day, that she thought Ms. 

Gayden was afraid and scared, and that Ms. Gayden was 

“getting picked on.” Respondent further stated that if he 

(Adam Diaz) continued “to do this”, Respondent was going 

to call 911 and he would be charged. Respondent moreover 

told Ms. Gayden that Respondent, by law, could mediate 

any case and said that was what she was doing.

29. Respondent knew that she did not have the 

authority to enter orders or to interfere with Judge Davis’s 

prior orders in this matter. Respondent falsely led Ms. 

Gayden to believe otherwise, thereby undermining the 

normal judicial process, including Judge Davis’ judicial 

authority. Respondent’s statements to Ms. Gayden 

furthermore evidenced a sympathy for her and a deliberate 

decision to intervene on her behalf in Ms. Gayden’s legal 

dispute with the Diazes.

30. Thereafter, Respondent went to the residence of 

the Diazes and met them outside their home. The Diazes 

also were visibly upset. Respondent introduced herself, 

told the Diazes that she had jurisdiction over the entire 

county, and falsely stated that she was obligated to 

mediate their case. Mr. Diaz told Respondent that there 

was already a restraining order against Ms. Gayden in 

place, and Respondent replied that, as far as Respondent 

was concerned, the restraining order was for both of them. 

Mr. Diaz stated that Ms. Gayden continued to operate a 

tractor on the easement and to loiter on it in violation of 

the court order, to which Respondent replied that she 

thought Ms. Gayden was videotaping the Diaz property to 

prove that she (Gayden) was not doing anything. 

Respondent told the Diazes that she was telling them the 

law in this matter, and that Judge Davis “legally” did not 

have the right to enter the orders he had entered.
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Wood, J., dissenting

14

31. Respondent’s false and misleading statements 

to the Diazes were made with the intent to undermine 

Judge Davis’ prior order and judicial authority, and were 

made to benefit Ms. Gayden.

32. Respondent’s false and misleading statements 

also were made to intimidate the Diazes into believing that 

she would influence or change the Diazes legal rights 

relating to the easement dispute, particularly if the Diazes 

did not permit Ms. Gayden to use the easement as 

Respondent deemed fit. In so doing, Respondent misstated 

the scope of her authority in an effort to affect the 

proceedings.

33. Respondent was aware the Diazes were 

represented by counsel, namely, Jeffrey Scott Thompson 

(the Affiant), in their cases against Ms. Gayden, but 

Respondent told the Diazes they should hire another 

attorney in connection with the dispute. Respondent knew 

or should have known that it was improper for the Clerk of 

Court to recommend a particular attorney or to disparage 

an attorney to that attorney’s clients.

34. Respondent finally told the Diazes to give it (the 

dispute) one more court date and that the orders could be 

extended if needed. Respondent shook hands with the 

Diazes, gave them her business card and personal cell 

phone number, and departed the scene.

35. The no-contact orders that Judge Davis had 

entered on 20 February 2019 did not restrain any conduct 

or activity by the Diazes. Respondent knew or should have 

known this fact.

36. There are no procedures in place in the Ninth 

Judicial District for the mediation of Chapter 50-C actions. 

Respondent was aware that she had no legal authority to 

conduct mediation or to compel the parties to a lawsuit to 

mediate it. Her statements to the parties that she was 

obligated by law to mediate the matter were false.

37. Respondent’s statements to the Diazes again 
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Wood, J., dissenting

15

evidenced a sympathy for Ms. Gayden and a calculated 

decision to act on Ms. Gayden’s behalf in her legal dispute 

with the Diazes. Respondent knew or should have known 

that her conduct in the dispute was well beyond the 

legitimate exercise of her authority and severely 

undermined the administration of justice. It moreover 

evidenced contempt for the legitimacy of Judge Davis’ 

lawful orders.

38. On 31 December 2019, Respondent, at the 

request of Ms. Gayden, directed one of her employees to file 

a copy of Ms. Gayden’s deed containing the easement 

across the Diazes’ property in two of the lawsuits Ms. 

Gayden had filed against the Diazes. In both case files 

(Franklin County File Numbers 19 CVD 444 and 19 CVD 

445), Respondent handwrote the following words in the 

margin of the deed: “Ms. Ann Gayden has legal right of way 

to travel per easement to her property.” Respondent wrote 

these words without the authorization of Chief District 

Court Judge John Davis, and without consulting any other 

district court judge about her action. Respondent did not 

thereafter inform any district court judge or the Diazes’ 

attorney that she had placed this document in these case 

files. Respondent knew she did not have the authority to 

modify official court files in connection with the GaydenDiaz dispute.

39. The incident of 27 December 2019 involving 

Respondent’s interactions with Ms. Gayden and the Diazes 

was widely reported in the Franklin County news media 

and on Raleigh television station WRAL. Clips from 

Affiant’s Exhibit 1 were included in the WRAL news 

broadcasts.

The trial court concluded that, because Ms. Chastain intervened in that matter 

and made false and misleading statements, Ms. Chastain “engaged in conduct which 

tended to undermine the authority of Judge Davis, breed disrespect for his office and 

the legal processes already in place, and diminish the high standards of the office of 
IN RE CHASTAIN

Wood, J., dissenting

16

Clerk of Superior Court.” He found this occurred after Judge Davis and the District 

Attorney rebuked Ms. Chastain for “acting outside the scope of her official 

responsibilities.” Thus, the trial court concluded that “[s]uch willful misconduct was 

egregious in nature . . . and independently warrants permanent disqualification from 

office.”

I join with the trial court’s reprimand of Ms. Chastain in this instance; it is not 

the place of a Clerk of Superior Court to interject herself into the legal dispute of two 

neighbors and make false statements, even for the purposes of ameliorating the 

situation. However, this, too, is not an instance of egregious misconduct warranting 

her disqualification from office and, thus, does not support the trial court’s conclusion 

of law. Ms. Chastain’s initiative, though misplaced, produced no injury to any 

individual, was exercised with parties who did not have an action pending before her, 

was not an “evil, intentional wrongdoing,” and stands as comparatively innocent with 

the cases cited above wherein elected officials were removed under a lesser standard 

than required here. Having worked with the disputes between these warring 

neighbors for many years, Ms. Chastain was more than familiar with the parties 

involved. Ms. Chastain did not personally gain any benefit from mediating a truce 

here, which might otherwise imply some level of corruption. Though she may have 

harbored sympathies for one party over the other, this does not weigh into a 

consideration of corruption or malpractice.

To be clear, I am reiterating the high standard necessary to disqualify a citizen, 
IN RE CHASTAIN

Wood, J., dissenting

17

particularly an elected official, from office. Though she may have acted beyond the 

scope of her position, as the majority holds, this overstep cannot be held to have been 

egregious or to proximately cause injury to the public so as to invoke her 

disqualification under Article VI, Section 8.

C. Magistrate Call

In the third instance, the trial court found that Ms. Chastain “attempt[ed] to 

exercise authority over Chief Magistrate James Arnold . . . and thereafter us[ed] 

vulgarity in the presence of members of the public to describe her feelings toward 

Chief District Court Judge Davis.” The trial court’s findings are as follows: 

41. Respondent said she was at Mr. Arnold’s office 

located in the Sheriff’s Office. The magistrate’s office was 

unattended at the time because the office was shortstaffed. There was a sign posted on the door of the 

magistrates’ office instructing members of the public to call 

911 if they needed a magistrate after normal business 

hours.

42. Respondent told Mr. Arnold that she had some 

people with her, and he could hear people talking in the 

background. Respondent stated that she had received 

several complaints about the hours the magistrates’ office 

was open. Mr. Arnold told Respondent that a magistrate 

was on call 24 hours a day, to which Respondent replied 

that she was open 24 hours a day.

43. Respondent told Mr. Arnold that the people with 

her wanted to talk with a magistrate and demanded that 

he send a magistrate to the office to talk with them. The 

Respondent did not say what the people with her wanted 

and she did not claim that they were experiencing any sort 

of emergency. Mr. Arnold stated that he would not send a 

magistrate without knowing more and he asked 
IN RE CHASTAIN

Wood, J., dissenting

18

Respondent to let him speak with the people. Respondent 

refused.

44. Respondent threatened to give Mr. Arnold’s 

private telephone number to the people with her, and he 

stated that she should not do that. Respondent then told 

him that she was going to post her own telephone number 

on the magistrates’ door, to which Mr. Arnold replied that 

Respondent was not a magistrate. Mr. Arnold told 

Respondent he would talk with her the next day and 

suggested that she call Chief District Court Judge John 

Davis if she wanted to complain about the magistrates’ 

office. Respondent stated she was not going to call Judge 

Davis, and Mr. Arnold ended the telephone call. 

45. About 30 to 45 seconds later, Mr. Arnold’s cell 

phone rang again. He could tell from his phone’s caller ID 

feature that Respondent was the person calling. He 

answered his telephone and could hear Respondent talking 

to other people whom he also could hear in the background. 

Respondent did not say anything to Mr. Arnold, and he 

quickly concluded that she had inadvertently called him 

without realizing she had done so. Mr. Arnold heard 

Respondent say, “I just talked with the chief magistrate 

and he’s not going to do a thing.” He then heard 

Respondent say, “F[---] John Davis” or “F[---], I’m not 

calling John Davis” or “I don’t give a f[---] about John 

Davis.” Regardless of Respondent’s exact words, she made 

highly inappropriate and vulgar statements in the 

presence of others with the intent to undermine the public’s 

respect for Judge Davis and Mr. Arnold and for their 

judicial authority.

46. Under N.C. Gen. Stat. § 7A-146, the chief 

district court judge of each judicial district is charged with 

the supervision of the magistrates in the judge’s district. 

The clerk of Superior Court has no supervisory authority 

over magistrates.

As with the previous instances, the trial court concluded Ms. Chastain attempted to 
IN RE CHASTAIN

Wood, J., dissenting

19

exercise authority over the magistrate and that conduct was “outside the scope of her 

official responsibilities—and thereafter us[ed] vulgarity in the presence of members 

of the public to describe her feelings toward Chief District Court Judge Davis.” The 

court concluded that she “at a minimum, engaged in conduct prejudicial to the 

administration of justice which brings her office into disrepute.” The court further 

concluded that, while acting in her official capacity, her conduct was “intentional and 

knowing, and she acted with a specific intent to accomplish a purpose which she knew 

or should have known was beyond the legitimate exercise of her authority” and that 

this instance “independently warrants permanent disqualification from office.”

Although the trial court could not determine the exact words Respondent used, 

it found that “she made highly inappropriate and vulgar statements in the presence 

of others with the intent to undermine the public’s respect for Judge Davis and Mr. 

Arnold and for their judicial authority.” However, words, and the meaning behind 

them, are important and necessary in determining someone’s intent. From the trial 

court’s findings of the four potential statements that may have been made by 

Respondent, there are four different interpretations and intentions that could be 

found. Furthermore, Magistrate Arnold testified, while he believed he heard 

Respondent say the curse word at issue, he did not know what phrase she actually 

said. Instead, he testified that that the most he could say is that he heard her say a 

single phrase which, for all he knew, could very well have been, “F__, I am not calling 

John Davis.” Accordingly, such evidence cannot support the trial court’s conclusion 
IN RE CHASTAIN

Wood, J., dissenting

20

that Respondent used “vulgarity in the presence of members of the public to describe 

her feelings toward Chief District Court Judge Davis.” 

The trial court’s finding that the Clerk of Superior Court does not have 

supervisory authority over magistrates is correct; however, under North Carolina 

law, the Clerk of Superior Court has the statutory obligation to nominate all 

magistrates for selection by the senior resident superior court judge of the district. 

N.C. Gen. Stat. § 7A-171 (2022). As such, it does not strain credibility that 

Respondent may have felt authorized or obligated to call the chief magistrate when 

she found the magistrate’s office unmanned. Implicit with the official duty of 

nominating magistrates is the obligation of the Clerk to keep herself informed about 

the job performance of the magistrates in her district so she can make an intelligent 

decision as to whether to renominate any such individuals in the future.

The trial court’s findings do not support the conclusion that Ms. Chastain’s 

actions rise to the level of egregious and willful misconduct demanded of Article VI’s 

“corruption or malpractice” standard to warrant disqualification from office.

D. Periodic Audit

In the fourth instance, the trial court found that Ms. Chastain’s “deficiencies 

in the oversight of the financial and accounting responsibilities of the Clerk of 

Superior Court . . . evidenced a gross unconcern for her fiduciary duties . . . and 

demonstrated a reckless disregard for the high standards of her office.” This instance 

stemmed from a periodic audit of the clerk’s office. The trial court found the following: 
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Wood, J., dissenting

21

20. Pursuant to the North Carolina State Auditor’s 

duty to periodically examine and report on the financial 

practices of state agencies and institutions, State Auditor 

Beth A. Wood’s office conducted a performance audit of the 

Franklin County Clerk of Court’s office for the period from 

1 July 2019 through 31 January 2020. The Auditor 

thereafter published a written report of the Auditor’s 

findings. (Affiant’s Exhibit 10)

21. The Auditor identified the following deficiencies

in internal control and instances of noncompliance that 

were considered reportable under the Government 

Auditing Standards issued by the Comptroller General of 

the United States:

• Untimely completion of bank reconciliations;

• Failure to identify and transfer unclaimed 

funds to the State Treasurer or rightful owner 

and failure to notify apparent owners;

• Failure to compel estate inventory filings or 

fee collection;

• Untimely or failure to compel inventory 

filings or assess and collect sufficient bonds 

for estates of minors and incapacitated adults; 

and

• Failure to accurately disburse trust funds 

held for minors and incapacitated adults.

22. The Auditor found no evidence of embezzlement 

or misappropriation of funds by the Respondent or any 

employee of the Clerk of Court’s office.

23. In respondent’s written response to the audit, 

included in the Auditor’s Report, Respondent admitted, 

among other things, that: new employees were not properly 

trained in preparing bank reconciliations; monitoring 

procedures were not in place to ensure the reconciling 

adjustments were entered into the financial management 
IN RE CHASTAIN

Wood, J., dissenting

22

system; new employees were not properly trained on the 

escheat process; monitoring procedures were not in place 

to ensure funds were transferred and apparent owners 

were notified; her office failed to document evidence of its 

requests to compel estate inventory filings; her staff made 

unintentional mistakes in calculating inventory fees and 

not collecting the required amounts; monitoring 

procedures were not in place to ensure inventories were 

compelled timely and bonds were sufficient for the 

guardianship estates; and new employees were not 

properly trained and monitoring procedures were not in 

place to ensure trust funds were accurately disbursed.

24. By the time of the audit, Respondent had been 

in office more than 6 years and knew or reasonably should 

have known the accounting and fiduciary responsibilities 

of the Office of Clerk of Superior Court. Nonetheless, she 

willfully and persistently failed to perform some of the core 

duties of her responsibilities as Clerk of Court.

The trial court concluded that these deficiencies “evidenced a gross unconcern for her 

fiduciary duties . . . and demonstrated a reckless disregard for the high standards of 

her office.” The court concluded that “Respondent’s lack of oversight of her office 

constituted willful misconduct in office that was egregious in nature, is equivalent to 

corruption or malpractice . . . and independently warrants permanent 

disqualification from office” under Article VI of our Constitution.

Yet, as with the other instances, the deficiencies revealed by the Auditor’s 

report could hardly be said to constitute the egregious and willful misconduct 

necessary to disqualify and, consequently, remove an elected official from office 

pursuant to Article VI. The audit did not reveal any criminal or material misconduct 

by Respondent or anyone in her office. It did identify areas where improvements 
IN RE CHASTAIN

Wood, J., dissenting

23

could be made regarding the training and monitoring of staff members. It is not 

appropriate to equate temporary deficiencies in the training and monitoring of 

employees with intentional and knowing misuse of office. The audit found no 

evidence of “knowing misuse” of office or bad faith intent to violate the law. Willful 

misconduct requires “more than an error of judgment or a mere lack of diligence,” and 

acts of “negligence or ignorance,” in the absence of bad faith intent to violate the law, 

do not rise to the level of willful misconduct. In re Nowell, 293 N.C. 235, 248–49, 237 

S.E.2d 246, 255 (1977).

E. Cumulative Consideration of Actions

The trial court, in the alternative to finding independent grounds to support 

the requirements of Article VI, concluded that the instances listed above, when 

considered together, constituted egregious and willful misconduct sufficient to 

disqualify Ms. Chastain from office. I disagree. While our Supreme Court in In re 

Martin asserts that “if a judge knowingly and wil[l]fully persists in indiscretions and 

misconduct which . . . constitute wil[l]ful misconduct in office and conduct prejudicial 

to the administration of justice which brings the judicial office into disrepute, he 

should be removed from office,” 295 N.C. 291, 305–06, 245 S.E.2d 766, 775 (1978), the 

holding is inapplicable here. Ms. Chastain did not “persist in indiscretions and 

misconduct.” As noted above, the instances the trial court noted were singular, 

isolated occurrences, separated by substantial time, place, and parties involved. 

Further, in Chastain I, this Court held that “Judge Lock lacked authority to rely on 
IN RE CHASTAIN

Wood, J., dissenting

24

any acts of Ms. Chastain that did not rise to [corruption or malpractice] to support 

his sanction under Article VI.” 281 N.C. App. at 528, 869 S.E.2d at 744. The trial 

court cannot commingle and combine conduct that is not egregious and willful to 

reach the highest bar of corruption and malpractice under Article VI.

Because the caselaw relied upon by the parties and the trial court involve the 

removal or disqualification of elected judges or district attorneys, I take this 

opportunity to clarify a matter concerning the standard of conduct of a Clerk of 

Superior Court. Though the procedure for removing a Clerk of Superior Court may 

be the same as that necessary for the removal of district attorneys and judges, the 

standards are not the same. For example, district attorneys are held to the Rules of 

Professional Conduct governing lawyers. Thus, a trial court may consider removing 

a district attorney for violation of these standards which might be relevant if the 

lawyer were to “engage in conduct that is prejudicial to the administration of justice,” 

“state or imply an ability to influence improperly a government agency or official,” 

and “knowingly assist a judge or judicial officer in conduct that is a violation of 

applicable rules of judicial conduct or other law.” N.C. Rules of Pro. Conduct r. 8.4. 

Similarly, judges are held to the standards outlined in the Code of Judicial Conduct. 

A judge may be removed if that judge engages in conduct prejudicial to the

administration of justice such as failing to “perform the duties of the judge’s office 

impartially and diligently” or exhibiting “impropriety.” N.C. Code of Judicial Conduct 

r. 2-3. 
IN RE CHASTAIN

Wood, J., dissenting

25

Clerks of Superior Court, by contrast, are not required to be licensed attorneys 

as a condition of holding office and, consequently, are not held to the same high 

standards as lawyers and judges. As the trial court noted in one of its findings, “there 

is no formal code of ethics applicable to Clerks of Court.” Instead, this Court looks to 

the standard of “corruption or malpractice” as stated in our Constitution when 

determining if a Clerk of Superior Court was properly disqualified from office under 

Article VI. In an apparent nod to the Rules of Professional Conduct applicable to 

lawyers and judges under In re Peoples, the trial court concluded that Ms. Chastain’s 

conduct was “prejudicial to the administration of justice.” However, this is not the 

standard for disqualification of a Clerk of Superior Court under Article VI, Section 8.

I stress this is no mere firing of an employee. By being adjudged guilty of 

corruption or malpractice, Ms. Chastain is not only removed from elected office, but 

is forever prohibited from holding any elected office. As our Supreme Court long ago 

said of disqualification,

It fixes upon the convicted party a stigma of disgrace and 

reproach in the eyes of honest and honorable men that 

continues for life. It is difficult to conceive of a punishment 

more galling and degrading in this country than 

disqualification to hold office, whether one be an office 

seeker or not.

Harris v. Terry, 98 N.C. 131, 133, 3 S.E. 745, 746 (1887). Perhaps the greater injury 

rests upon the people of Franklin County who elected Ms. Chastain as their Clerk of 

Superior Court multiple times. Our system is not wholly democratic (and this, 
IN RE CHASTAIN

Wood, J., dissenting

26

perhaps, for good reason), but, when adjudicating the disqualification of an elected 

official, care for the people’s will is requisite to the proper respect for their 

sovereignty. The trial court here did not respect that sovereignty.

IV. Conclusion

The will of the people must not be cast aside by the stroke of a judge’s pen 

without due consideration and just cause under the high standard set forth by our 

Constitution. Therefore, I respectfully dissent.