Justice Newby back on the redistricting hot seat

Justice Newby back on the redistricting hot seat

- in Law and the Courts


The appeal of the July ruling upholding the state’s 2011 redistricting plan moved forward on Friday as the North Carolina NAACP and other individuals and organizations challenging the plan filed their opening briefs in the Supreme Court.

But before the court even hears argument on the appeal some months from now, the court must rule once again whether Justice Paul Newby can join his colleagues in hearing and ruling on the merits of the appeal.

That’s because the challengers of the redistricting plan have renewed their request that Newby sit out, arguing that decisions from the United States Supreme Court and the state Supreme Court, as well as the state Code of Judicial Conduct, require that he refrain from hearing the appeal.

They say that the organization largely responsible for the drafting of the redistricting plans, the Republican State Leadership Committee, contributed more than a million dollars to support Newby during the waning days of the 2012 judicial elections to secure his re-election and his vote when the redistricting challenge reached the Supreme Court.

That connection at the very least draws into question Newby’s ability to hear and decide the validity of the redistricting plans in a fair and impartial manner, they argue. Just the impression that Newby might favor the RSLC in any ruling is reason enough for him to recuse himself.

Plaintiffs made a similar request last November when the parties were before the Supreme Court for a review of the law concerning attorney-client privilege in the redistricting setting. The court denied that request without opinion or explanation in December.

Now, though, the court will be considering the constitutionality of those redistricting plans, and the line between the issues before the court and Newby’s donors is much more direct: The mapmaker and the donor are one and the same.

Chief mapmaker and principal donor

According to the recusal brief filed with the court, the RSLC’s expert mapmakers played a pivotal role in drafting the redistricting plan ultimately adopted by the General Assembly in 2011. Senator Bob Rucho and Representative David Lewis later dubbed one of them, Tom Hoefeller, the “chief architect” of the plan.

And the RSLC likewise played a pivotal role in the re-election of Justice Newby. Anticipating a court challenge to the plan and wanting to preserve a Republican majority on the state Supreme Court, the organization funneled hundreds of thousands of dollars through pro-Newby SuperPACs in the waning days of the 2012 judicial election, just as the race between the justice and Court of Appeals Judge Same Ervin IV grew tight. The RSLC ultimately contributed more than a million dollars in support of Newby’s re-election.

Those facts mirror those in Caperton v. A. T. Massey Coal, a U.S. Supreme Court case in which the court ruled that a judge must recuse himself from hearing a case in which a donor who made sizable contributions to the judge’s campaign has a vested interest.

A similar result is required here, plaintiffs contend, not only under Caperton but also under North Carolina case law and the state’s Code of Judicial Conduct.

“Unless Justice Newby recuses himself,” plaintiffs argue in their brief, “he will rule on the validity of redistricting plans that were drawn, endorsed, and embraced by the principal funder of a committee supporting his campaign for re-election.”

And it’s not just whether Newby believes he can remain unbiased in the case that matters.

(Plaintiffs question even that, though, noting remarks by the justice during the campaign concerning the need to maintain the Republican majority on the court.  For example, during a speech at the Resurrection Church in Charlotte, Justice Newby told the congregation: “There are seven of us on the Supreme Court, and my Court is 4-3. Unfortunately, I’m the only one that’s up this time, and if I lose, it’ll be 3 to 4.”)

The appearance to others that Newby may favor one side in this case is enough to warrant his stepping down according to former state Supreme Court Justices James Exum and I. Beverly Lake, Jr. in a brief they submitted (along with other states’ justices) in Caperton:

Substantial financial support of a judicial candidate—whether contributions to the judge’s campaign committee or independent expenditures—can influence a judge’s future decisions, both consciously and unconsciously. [We] believe that the only way to preserve a litigant’s due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge’s own partiality, but also when there exists a reasonable appearance of partiality or impropriety.

Behind closed doors

Justice Newby would not be the first on the state Supreme Court to refrain from participating in a redistricting appeal. Justices Mark Martin and Robert Orr did not participate in the consideration or decision of Stephenson v. Bartlett in 2003.

But if, how and why he might sit this one out remains a mystery to attorneys and members of the public alike, since there is no formal procedure for handling recusal requests once they’re made.

Here, the redistricting plaintiffs have directed the request in the first instance to Justice Newby, asking him to decide whether he should step out of the case.  If he is unable or unwilling to make that decision, they ask that he refer their request to the remaining justices for a decision.

If prior practice holds here, there will be no oral argument by the parties before a decision, and no written opinion from either Justice Newby or his colleagues detailing why Justice Newby should or should not remain on the case.

Aside from the result, then, the parties, their attorneys and the public will know little about what went into the decision.

In that way the process is no different than that permitted by the “star chamber” bill the General Assembly adopted this summer, allowing the justices to judge themselves, privately, when faced with judicial ethics complaints.

Both Justice Newby and Justice Mark Martin advocated for that bill, according to legislative sources as well as Rep. Tim Moore, who said on the House floor: “My understanding is that four justices of the Supreme Court want this to pass. Justice Newby and Mark Martin have asked for this bill.”

Cynthia Gray, Director of the Center for Judicial Ethics at the non-partisan American Judicature Society said at that time that such closed-door proceedings fly in the face of the transparency and openness Americans rightly expect from the courts.

“Trust in the efficacy of public proceedings is one of the hallmarks of American democracy in general,” Gray said, “and public hearings for judges charged with misconduct complements the pride judges justifiably take in the openness of the judicial system in particular.”

A similar lack of transparency with requests for judges to refrain from hearing a case – particularly one of significant public importance, like the redistricting challenge – is just as troubling, if not more so, given what’s coming in judicial elections in 2014.

With four Supreme Court seats up for re-election, the restrictions of public funding gone by the wayside and a possible U.S. Supreme Court ruling paving the way for limitless campaign contributions, North Carolina may see an unprecedented amount of money raised and spent for judicial elections in 2014.

More money will mean more questions about whether justices can and will remain impartial when their partisan or financial interests are at stake.

But the answers, and explanations, will unfortunately remain uniquely behind the closed doors of the court.

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.