Groups call on Newby to recuse himself in redistricting dispute

By: - November 21, 2012 11:25 am

In papers filed today, the North Carolina NAACP and other state groups and individuals suing to overturn redistricting plans approved by the legislature in 2010 asked Supreme Court Justice Paul Newby to remove himself from the case, saying that the millions of dollars kicked in to support his reelection by conservatives with an interest in seeing those maps upheld by the court have undermined public perception of his impartiality. Click here to view the entire Motion for Recusal.   

That perception, they say, all but mandates that Newby step out of the case.  The state Supreme Court said as much, they added, quoting in their court filing from a 1951 decision, Ponder v. Davis:

“It is not enough for a judge to be just in his judgments; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds. . . .  The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the Courts.”

Buying a redistricting vote

In November 2011, shortly after the General Assembly approved the redistricting plans, the state branch of the National Association for the Advancement of Colored People and a collection of individual voters and organizations filed two separate complaints in Wake County Superior Court, alleging that Republican legislators secretly drafted the plans — with help from Republican State Leadership Committee redistricting mapmaker Tom Hofeller — in a way that diluted the African-American vote in several districts across the state.

The two cases have since been consolidated, but their progress has been stalled by a dispute over the production of emails and other documents between the legislators and their attorneys – including documents concerning the amount of state money spent on the alleged secret redistricting plans, which legislators have refused to turn over.  The Supreme Court heard argument on that issue on July 10, but has yet to hand down a decision.

In the meantime, the reelection campaign of Justice Newby heated up and drew national attention as millions of dollars in conservative super PAC money helped flood television airwaves with his “Newby Tough but Fair” ad.

As reported previously, that money included a million dollars from the Republican State Leadership Committee in Washington, D.C., a group which, with the services of Hofeller, shaped redistricting plans to ensure Republican legislative victories here and elsewhere across the country. That’s an interest shared by several state conservatives who also donated to the RSLC during this election; in September alone, Art Pope’s Variety Stores donated $150,000, and businessmen Phil Drake and Bob Luddy, $50,000 each.   Also donating in a big way to help push Newby across the finish line were the pro-school choice American Federation for Children in Washington ($100,000); tobacco affiliate RAI Services ($100,000); pro-medical liability reform group North Carolinians for Affordable Health Care ($100,000); medical liability insurance company Medical Mutual ($75,000); and a number of smaller state PACS and individuals.

“Justice Newby’s impartiality may be reasonably questioned”

In their motion before the court, the NAACP and other plaintiffs rely upon a 2009 U.S. Supreme Court decision, Caperton v. A.T. Massey Coal, in which the court ruled that the Due Process clause of the U.S. Constitution required a judge to recuse himself when underlying facts give rise to a probability of actual bias.

There, following a $50 million verdict against Massey Coal in West Virginia, its chairman contributed $3 million in support of a state supreme court justice who was ultimately elected, and who later joined with the majority of his court to reverse the verdict. In a 5-4 ruling, the Supreme Court held that the justice in that case should have recused himself, given the personal stake the chairman had in the case at the time of his campaign contributions.

“We conclude that there is a serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” Justice Anthony Kennedy wrote for the majority there.

The facts here are even more compelling, plaintiffs say.  The super PAC contributions and expenditures were exorbitant, and the total amount spent in support of Newby — $2.5 million – dwarfed that spent by his opponent, Sam Ervin IV.  And most of the Newby money came from a group with a direct interest in the redistricting case pending before the Supreme Court on a discovery appeal.

They also argue, as the state Supreme Court emphasized in Ponder, that public confidence in the fairness and impartiality of the courts requires that Newby recuse himself, given a growing perception in the state that Newby is likely to uphold the redistricting plans — as the RSLC and other conservative groups had hoped when supporting his campaign.

And finally, the NAACP and other plaintiffs argue that the state code of judicial ethics mandates Newby’s recusal, given that his impartiality can be reasonably questioned.

“The facts and circumstances [here], including the connections between the litigants in this case, the map drawers, and the funders of campaign advertisements in support of Newby’s candidacy, as well as the evidence of general and widespread public perception, demonstrate that Justice Newby’s impartiality may be reasonably questioned.”

(Photo: courtesy

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Sharon McCloskey

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 or @sharonmccloskey.