Plaintiffs in redistricting litigation bring second recusal motion against Justice Newby

The plaintiff’s second motion for the recusal of Justice Newby is expected to come to the same end as the first: denial.

With its origins dating to the Federalist Papers, the idea that no man should adjudicate his own case is deeply rooted in the American legal system.  Numerous United States Supreme Court cases have upheld this axiom through the centuries.  Recent changes in our country’s judicial election process, however, have cast more light on the issue of judicial recusal.  This is due in large part to the amount of money individuals and companies have begun to spend in an attempt to install judges they believe share their ideology.

This is not the first time the Plaintiffs have attempted to force Newby’s recusal.

North Carolina is no stranger to calls for judicial recusal, especially in politically sensitive cases.  The recent upholding of the 2011 redistricting of voting districts by the General Assembly, and its subsequent appeal to the state Supreme Court, coincided with the re-election of Justice Newby to the state’s highest court.  These two events were both politically charged and divided along party lines, and the plaintiffs in the redistricting litigation have now sought the recusal of Justice Newby.  This is not the first time the plaintiffs in the redistricting litigation have attempted to force Newby’s recusal: an interlocutory appeal in the case placed the parties in front of the State Supreme Court in 2012.

Some four months after oral arguments on the interlocutory issue in front of the Supreme Court and seven months after the defendants appealed from a trial court order, the Plaintiffs brought their first motion of recusal against Justice Newby.  The Court issued an order on December 17, 2012, denying the Plaintiffs’ motion for recusal, and the case continued in the trial court.  The three-judge panel trial court eventually ruled in favor of the defendants, sparking a second appeal directly to the state Supreme Court by the plaintiffs.

Again, plaintiffs moved for the recusal of Justice Newby on October 11, and the defendants responded on October 24.  The plaintiffs’ reasoning and authorities, despite being a new motion, tracked that of their first recusal motion.  The plaintiffs rely on three main sources in their argument: the U.S. Supreme Court’s decision in Caperton v. A.T. Massey, the Supreme Court of North Carolina’s decision in Ponder v. Davis, and the North Carolina Code of Judicial Conduct 3C(1).

Plaintiffs may have a strong public policy argument that judges and the legal system should not only be impartial but that they should also appear impartial to the public.

In Ponder v. Davis, the Supreme Court of North Carolina examined a situation when a judge was required to recuse himself.  The case involved a trial court judge who campaigned for the plaintiff’s election and against the defendant’s re-election before hearing a case between them shortly thereafter.  The facts of Ponder are similar to, but not as egregious as, the Caperton case (pdf) also relied on by the redistricting plaintiffs in their motion.  In that case, the chairman and principal officer of a corporation spent $3 million in contributions to a candidate for West Virginia’s highest court.  The corporate officer made the contributions after his corporation had a $50 million verdict entered against it, and he knew an appeal was forthcoming.  When the case reached the appellate court the Justice elected almost entirely through the defendant’s infusion of funds refused to recuse himself.  The case reached the United States Supreme Court and it reversed on due process grounds, finding that the Justice should have recused himself.

The facts of the case at hand do not appear to be as extreme as either of the cases relied on by the plaintiffs in seeking Justice Newby’s recusal.  The plaintiffs, however, may have a strong public policy argument that judges and the legal system should not only be impartial but that they should also appear impartial to the public.  The plaintiffs provide countless newspaper articles and editorials questioning contributions to a PAC supporting Justice Newby’s re-election and connecting it to the potential appeal of the redistricting cases.

The parties have vastly differing analyses of Canon 3 of the Judicial Code, as well as the case law interpreting it.

In addition to the two cases relied on by the plaintiffs, they argue that Canon 3 of the North Carolina Code of Judicial Conduct (pdf) requires Justice Newby’s recusal.  Canon 3C(1) states that “a judge should disqualify himself in a proceeding in which his impartiality may reasonably be questioned.”  The parties have vastly differing analyses of this Canon as well as the case law interpreting it.

The plaintiffs read the language as requiring a judge to recuse himself even if there is only the appearance that he has prejudged the matter.  The defendants cite other North Carolina cases holding that the party moving for recusal must make an objective showing that facts exist requiring recusal.  Further, this showing must include substantial evidence, and the Supreme Court of North Carolina stated the standard is whether grounds actually exist for recusal.

Both sides provide a number of persuasive points in the argument over recusal.  It is hard to see, however, how this recusal motion will end any differently than the previous recusal motion made by the plaintiffs in this case.  The court as a whole denied the motion, and the facts on the ground have not changed since that denial.

Though the first motion for recusal was not granted, and it is unlikely the second will, the number of recusal motions in general will likely increase as more outside money is contributed to judicial elections.  The underlying issues of contributions to judicial elections and the growing partisan nature of the corresponding campaigns—despite the fact that judicial elections are currently nonpartisan—will provide litigants and the general public with more reasons to doubt the decisions of the judiciary.  Determining whether this skepticism is warranted is a difficult task.  Nonetheless, these skeptics need look no further than the First Canon of the North Carolina Code of Judicial Conduct, which states, “a judge should uphold the integrity and independence of the judiciary.”  As judges continue to follow that maxim, they will do so impartially and continue the great tradition of judicial independence in America.

Parker Dozier, Former Senior Staff Writer
About Parker Dozier, Former Senior Staff Writer (13 Articles)
Parker Dozier served as a Senior Staff Writer for the Campbell Law Observer. He graduated from the University of North Carolina at Chapel Hill in 2011, where he majored in History and Geography. During law school he externed with the NC Department of Justice, Transportation Section, and Disability Rights NC. Parker graduated from Campbell Law School in May 2014.
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