No. 201PA12 TENTH DISTRICT SUPREME COURT OF NORTH CAROLINA MARGARET DICKSON, et af. Plainrzfifs, V. From Wake Countv ROBERT RUCHO, er al. - Defendants. NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE er al. V. THE STATE OF NORTH CAROLINA, et al. -- Defendants. LEGISLATIVE RESPONSE TO PLAINTIFFS-APPELLEES MOTION FOR RECUSAL OF PAUL NEWBY TABLE OF CONTENTS FACTS .. 2 REASONS WHY THE MOTION LACKS A. LEGAL BASIS AND WHY RECUSAL IS NEITHER REQUIRED NOR ADVISABLE .. 3 -- I. MOTION IS UNTIMELY ..3 II. THE MOTION IS NOT WELL-GROUNDED IN LAW ..5 RECUSAL ON THE GROUNDS RAISED IN THE MOTION COULD IMPAIR THE ABILITY TO FUNCTION, AS IT COULD REQUIRE JUDGES AND JUSTICES TO RECUSE THEMSELVES SOLELY BECAUSE OF THE ACTIONS OF THIRD PARTIES. ..14 IV. THE MOTION IS PREDICATED ON AN ASSUMPTION THAT PARTISAN INTERESTS INFLUENCE A DECISIONS ..20 CONCLUSION .. 22 CERTIFICATE OF SERVICE .. .. 25 APPENDIX: Cases Referred to in Footnote 4 ..App. 1-2 Cases Referred to in Footnote 6 . ..App. 3 TABLE OF AUTHORITIES CASES Caperton 12. AT. Massey Coal C0., 556 U.S. 868 (2009) ..5, 6, 7, 20 In Re Braswell, 358 N.C. 721, 600 849 (2004) .. 13 Lange v. Lange, 357 N.C. 645, 588 877 (2003) .. 12, 13 Ponder V. Davis, 223 NC. 699, 65 356 (1951) ..5, 10 Queen 12. Hise, No. COA12-455, N.C. App. (Nov. 20, 2012) ..21 Sine v. Local No. 992 Int'! Broth. of Teamsters, 882 F.2d 913 (4th Cir. 1989) ..5 State v. Pakalski, 106 NC. App. 444, 417 515 (1992) ..5 Stephenson v. Bartlett, 358 N.C. 219, 595 112 (2004) ..20 US. v. DeTempZe, 162 F.3d 279 (4"1 Cir. 1998) ..9 N0. 20 1 PA 1 2 TENTH DISTRICT SUPREME COURT OF NORTH CAROLINA MARGARET er al. Plaintijjfi, v. From Wake County ROBERT RUCHO, et al. Defendants. NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE er al. Plaintzfis, V. THE STATE OF NORTH CAROLINA, et al. Defendants. LEGISLATIVE RESPONSE TO MOTION FOR RECUSAL OF PAUL NEWBY TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA: The Legislative Defendants respectfully submit this response to plaintiffs' Motion for Recusal of Justice Paul NeWby.1 For the reasons that follow, The defendants in these cases include Senators Philip E. Burger and Robert Rucho, and Representatives Thom Tillis and Davis Lewis ("the Legislative -2- plaintiffs', motion lacks any legal basis because recusal is neither required nor advisable under the circumstances of this case. FACTS A. Procedural History This matter is on appeal of an order of a three-judge panel of the Superior Court of Wake County allowing in part plaintiffs' motion to compel the production of certain documents the legislative defendants assert are privileged under the attorney-client privilege or Work product doctrine. Additional history is contained in the Legislative Defendants' Brief, pp. 2-3, which is incorporated herein by reference as though fully set forth. Oral argument was heard in this matter on 10 July 2012. B. Factual History The facts underlying the appeal are as set forth in the Legislative Defendants' Brief, pp. 4-11, which is incorporated herein by reference as though set forth. Defendants"). While the State of North Carolina, the North Carolina State Board of Elections and Representatives Nelson Dollar and Jerry Dockham are also defendants, plaintiffs' motion must relate to the pending appeal, in which the Legislative Defendants are the only appellants. R. p. 584. -3- REASONS WHY THE MOTION LACKS A LEGAL BASIS AND WHY RECUSAL IS NEITHER REQUIRED NOR ADVISABLE Plaintiffs contend that Justice Newby must recuse himself from participating on the decision on the Legislative Defendants' pending appeal in this matter and ostensibly any future appeal that may arise from these actions solely because political organizations not affiliated with, controlled by, or even coordinating with Justice Newby's campaign spent money in support of his candidacy for the Supreme Court during the 2012 election cycle. This contention is not supported by the law and could have the effect of requiring judges at all levels to recuse themselves unnecessarily from hearing a wide range of cases. The motion in effect seeks to insert politics where it does not belong, in the judicial process. In doing so, plaintiffs' motion unnecessarily questions the integrity of this Court and raises an unfair--~and unfounded>>-suggestion that this matter will be decided based upon political allegiances rather than the law and facts before the Court. The Legislative Defendants have complete confidence that Justice Newby, and indeed all members of this Court, can and will hear and decide this appeal on its legal merits and not on the basis of any perceived partisan interests. I. MOTION IS UNTIMELY. Plaintiffs' motion for recusal is untimely for two reasons. First, the motion comes seven months after Legislative Defendants' appeal of the trial court's 20 April 2012 order was filed and over four months after briefing closed and the - 4 Court heard oral argument in this matter. Based on this lapse of time alone, it is difficult to see how Justice Newby's recusal would be possible at this point, given the time that this matter has been pending before the Court, together with the likelihood that Justice Newby has already been involved-in the consideration of the issues on appeal. It would appear that the timing of plaintiffs' motion was predicated not on the facts outlined in the motion but on the desire to wait and see the results of the election for Justice Newby's seat. Plaintiffs' motion highlights statements from newspapers, editorialists and other pundits dating as far back as 5 June 2012, and numerous others published in July and August 2012 in support of their contention that there exists a "widespread perception that Justice Newby is predisposed to uphold the constitutionality of the legislative and congressional districts challenged in this litigation." (Motion, p. 15) Moreover, campaign finance filings from the independent expenditure committees detailing the contributions and expenditures by these groups were available to plaintiffs before the election. Yet, despite the alleged "widespread perception" about Justice Newby's supposed predilection to rule in the Legislative Defendants favor in this matter, plaintiffs waited until after the results of the election were known before filing their recusal motion. Although this Court has not addressed the timing of a motion of recusal, the North Carolina Court of Appeals has held that a recusal motion must be raised "at 5 the earliest moment after acquiring knowledge of the facts which give rise to the motion to recuse." State v. Pakulski, 106 N.C. App. 444, 417 515, 519 (1992) (citation omitted). See also Sine v. Local No. 992 Int'! Broth. of Teamsters, 882 F.2d 913, 915 (4th Cir. 1989) ("In general, motions to recuse must be filed at the first opportunity after discovery of the facts tending to prove disqualification") (citing Duflield 12. Charleston Area Medical Center, 503 F.2d 512, 515 (4th Cir.1974); Chafiri v. United States, 5 F.2d 592, 595 (4th Cir.), cert. denied, 269 U.S. 552 (1925)). Here, there is no explanation for why plaintiffs have waited until now to file their motion. As such, plaintiffs' recusal motion is untimely. Second, despite specifically stating that plaintiffs "move for the recusal of Justice Paul Newby in the above-captioned matter" (Motion, p. 4), the motion appears at times to seek Justice Newby's recusal fi'orn participating in any other appeal that might be filed in the fiiture in these actions. It goes without saying that a motion for recusal in appeals that are not currently pending and that are, at this time, only speculative, is not ripe. For this reason as well, the motion is untimely. II. THE MOTION IS NOT WELL-GROUNDED IN LAW Plaintiffs' recusal motion is based upon three principal authorities: (1) the United States Supreme Court's decision in Capertorz v. A. T. Massey Coal Co., 556 U.S. 868 (2009); (2) this Court's decision in Ponder v. Davis, 223 N.C. 699, 65 - 5 356 (1951) and; (3) Canon 3C of the North Carolina Code of Judicial Conduct. None of these authorities support plaintiffs' motion. A. The Facts Underlying the United States Supreme Court's Holding in Caperton v. A.T. Massey Coal C0. Differ in Material Ways from the Facts Outlined in Plaintiffs' Motion. In their motion, plaintiffs insist that the U.S. Supreme Court's decision in Caperton A.T. Massey Coal Co., 556 U.S. 868 (2009) requires Justice Newby's recusal from any appeal in this matter. Specifically, plaintiffs cite the following language from the Caperton decision: We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--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. 556 U.S. at 884 (emphasis added). Plaintiffs, in their motion, incorrectly focus on (1) comparing the amounts of money spent in. Caperton to the amounts of independent expenditures made in Justice Newby's race; and (2) whether these expenditures "had a significant and disproportionate influence in placing" Justice Newby in a position to hear this appeal? In doing so, they ignore the critical language in this passage that requires 2 There is no judicially manageable standard explained by plaintiffs for determining when independent expenditures or other election conduct in support of a candidate constitutes a "disproportionate influence." Plaintiffs' evidence in support of an alleged "disproportionate influence" includes opinion polls done by 7 that such expenditures be made by "a person with a personal stake in a particular case" -- not persons with shared political Views -- before recusal is warranted under Caperton. Plaintiffs' motion fails to show that the independent expenditure entities that they contend made independent expenditures in support of Justice Newby -- or the donors that contributed to them -- had a "personal stake" in this litigation. Accordingly, plaintiffs' reliance upon Caperton is misplaced. It is important to recognize that the defendants in this litigation are the people of North Carolina and their elected representatives, who are sued in their official capacities, not private parties. Unlike the defendants in Capertorz, none of the organizations identified by plaintiffs as making independent expenditures in support of Justice Newby's candidacy -- Justice for All NC ("Justice for All"), the NC Judicial Coalition ("Judicial Coalition"), the John W. Pope Civitas Institute or Americans for Prosperity -- are defendants in this lawsuit. Similarly, none of the major donors to these organizations identified by Plaintiffs - the Republican State Leadership Committee or the Pope Foundation -- are defendants in this lawsuit. This alone distinguishes this matter from Cczperton and defeats plaintiffs' argument that any of these organizations have a "personal stake" in the outcome of this litigation. one of their expert witnesses in this case, Public Policy Polling. Neither these polls, nor anything else in plaintiffs' motion, could lead any reasonable fact--f1nder to determine the exact reasons why Justice Newby prevailed or whether the independent expenditures in support of Justice Newby were "disproportionate." 3 Second, Caperron involved a dispute between two private parties over money. See Caperton, 556 US. at 886 ("So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor's company $50 million"). Here, plaintiffs are not seeking any monetary relief from defendants. Instead, in the underlying actions, they have requested injunctive relief to stop the use of legislative and Congressional districts duly enacted by the General Assembly, and in the appeal currently before the Court they seek documents for which the Legislative Defendants have asserted attorney-client or work product privilege. In contrast to the facts in Caperton, plaintiffs have not shown that the outcome of this litigation will affect the financial interests of any of the independent expenditure committees who plaintiffs identify in their brief or their respective donors. Nothing in Capertcm requires that Justice Newby recuse himself from this litigation because he received support from independent political committees, that are not parties to this action and that see themselves as having a political rather than financial interest in his re-election. Plaintiffs have identified no authority -- and undersigned counsel has found none -- holding that any "stake" other than a direct financial interest in pending litigation is sufficient to necessitate recusal under Caperton. .. 9 In addition to plaintiffs' failure to show that any of the independent expenditure committees they identify in their motion or their donors have a "personal stake" in these actions, plaintiffs also have not shown that any one individual rnade disproportionate expenditures or contributions to support Justice Newby's re-election. Instead, plaintiffs attempt to aggregate all of the expenditures made by several entities, and an unknown number of contributions to each of these entities, in support of Justice Newby to argue that these expenditures are equivalent to those at issue in Caperton. For example, plaintiffs contend that expenditures highlighted in their motion are analogous to those in Caperton because Art Pope, who has served in a limited role as pro bono counsel for Senator Rucho and Representative Lewis during the redistricting process but who has not appeared on any pleading or hearing before this Court, served as a Board Member of Civitas and AFP, and can be linked to donations made to these organizations and to the RSLC. However, an analysis of the claims made by plaintiffs in their motion reveals at least six degrees of separation between Mr. Pope and the television ads purchased by the Judicial Coalition in support of Justice Newby.3 Such exaggerated and highly attenuated 3 According to plaintiffs, Art Pope's "personal stake" in this litigation and his responsibility for the Judicial Coalition's spending in support of Justice Newby would be based upon the following: (1) Art Pope was a pro bono attorney to Sen. Rucho and Rep. Lewis; (2) Art Pope is the owner/CEO of Variety Stores, lnc.; (3) Variety has made donations to the RSLC, including $150,000 to RSLC in 2012; (4) 10 linkages are simply not sufficient to require Justice Newby's recusal from this matter. See US. v. DeTempZe, 162 F.3d 279, 287 (4th Cir. 1998) (holding that a judge is not required to recuse based upon "unsupported, irrational, or highly tenuous speculation" because disqualify oneself in such circumstances would I be to set 'the price of maintaining the purity of appearance' too high--it would allow litigants 'to exercise a negative Veto over the assignment of (citations omitted). B. This Court's Decision in Ponder v. Davis Provides No Basis for Plaintiffs' Recusal Request. In addition to Capertorz, plaintiffs also rely upon this Court's decision in Ponder v. Davis, 233 NC. 699, 65 356 (1951). But Ponder, like Cczperton, is inapposite to the facts at issue here. In Ponder, this Court found that a trial judge who personally campaigned for the Democratic candidate for sheriff should have recused himself from presiding in a lawsuit that would have decided the outcome of a disputed election between that candidate and his Republican opponent. 233 N.C. at 701-03, 65 at 357-59. In other words, in Ponder, the trial judge clearly indicated a preference for the Democratic candidate by the RSLC donated to $l,l655,000 Justice for All; (5) Justice for All made contributions to the Judicial Coalition; (6) the Judicial Coalition made independent expenditures for television ads in support of Justice Newby in October 2012. (Pl's Motion for Recusal, pp. 10-13.) - 11 campaigning directly for his election prior to sitting in a case which would have decided whether that candidate prevailed in the election. No -such facts exist here. Plaintiffs' claims that Justice Newby cannot be "impartial" is based not upon any statement made by Justice Newby regarding these actions but instead upon statements by others -- primarily commentators and editorialists -- that make assumptions about how Justice Newby might rule on the merits of this case, should it come before him, and upon statements of Republican candidates with whom Justice Newby appeared at campaign events and who expressed support for his re-election bid. Plaintiffs' reliance upon articles and editorials from the Raleigh News Observer to prove an alleged public "perception" about Justice Newby's impartiality in these actions is particularly dubious. (Motion, p. 15 et seq.) In an editorial prior to the election, the newspaper's editorial board endorsed Justice Newby's opponent, Judge Sam J. Ervin, IV, on the grounds that Judge Ervin, a Democrat, would be a likely vote against the redistricting maps drawn by the Republican General Assembly. See For the Court, The News Observer, October 7, 2012 (endorsing Judge Ervin and stating that Ervin victory might eventually bring North Carolina's redistricting back toward middle ground") (copy attached as Exhibit 1). Despite their best efforts to show a "widespread public perception" that Justice Newby will rule in Defendants' favor in this matter, plaintiffs have not -12- cited and cannot cite any statement by Justice Newby that he has prejudged the merits of this matter. Nor have they identified any statement by Justice Newby affirming any of the comments made by any of the commentators, editorialists, or other candidates regarding how he might View the legal issues at stake in this litigation. Plaintiffs' attempt to analogize the facts of this case with the facts of Ponder are unavailing; Ponder does not support plaintiffs' motion or require Justice Newby's recusal here. C. The North Carolina Code Of Judicial Conduct Does Not Require Justice Newby's Recusal. Plaintiffs contend that Justice Newby's recusal is required by Canon of the North Carolina Code of Judicial Conduct, which requires recusal when "the judge's impartiality may reasonably be questioned" and goes on to list specific circumstances where this may occur. Contrary to plaintiffs' suggestion in their motion, this language does not mean that a judge must recuse himself whenever there might be an appearance of impropriety. (Motion, p. 37) Indeed, this Court expressly removed any such requirement from the Code of Judicial Conduct in 2003. Michael Crowell, Recusal, Administration of Justice Bulletin, No. 2009-03, N.C. School of Government, p. 6 (September 2009) (copy attached as Exhibit 2). Consistent with the elimination of the "appearance of impropriety" language from the Code of Judicial Conduct, this Court has rejected the notion that recusal is warranted in instances where there is no actual Violation of the Code of Judicial 13 Conduct but where circumstances exist that "would cause a reasonable person to question Whether [the judge] could rule impartially." See Lange v. Lange, 357 N.C. 645, 649, 588 877, 880 (2003). Instead," this Court has held that a party making a recusal motion bears the burden to "demonstrate objectively that grounds for disqualification actually exisf' and to produce "substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially." Id. (emphasis added); see also In Re Braswell, 358 N.C. 721, 724, 600 849, 851 (2004). In other words, "if there is no actual evidence of bias then a reasonable person would not question the judge's ability to rule impartially." Crowell, Recasal, Administration of Justice Bulletin, No. 2009-03, N.C. School of Government, p. 6. Here, plaintiffs have not only failed to demonstrate any "substantial evidence" of any "personal bias, prejudice or interest" by Justice Newby in this action, they have specifically stated that they "do not intend to imply that Justice Newby has demonstrated actual bias against them." (Motion, p. 37) Given plaintiffs' admission that there is no evidence of actual bias on the part of Justice Newby, plaintiffs cannot show that a reasonable person would question his ability to rule impartially in this litigation as contemplated by Canon Justice Newby's participation in the pending appeal or other participation in this matter therefore does not violate any part of the Code of Judicial Conduct. -14- RECUSAL ON THE GROUNDS RAISED IN THE MOTION COULD IMPAIR THE ABILITY TO FUNCTION, AS IT COULD REQUIRE JUDGES AND JUSTICES TO RECUSE THEMSELVES SOLELY BECAUSE OF THE ACTIONS OF THIRD PARTIES. The recusal standard urged by plaintiffs in their motion is inconsistent with the past recusal practices of members of this Court, ignores plaintiffs' own efforts to elect Judge Ervin in the 2012 election, and is practically unworkable as it would require most members of the Court to recuse themselves from critical cases. Moreover, such a standard threatens the constitutional rights of individuals and entities that make independent expenditures in judicial races, while simultaneously holding judges and justices responsible for expenditures and communications over which they have no control. Sinceat least 2006, independent expenditures in judicial races by individuals and entities that frequently appear before this Court as parties, counsel to parties, or amici curiae have not prompted recusals by members of this Court who benefitted from these expenditures. For example, during the 2006 general election in which Chief Justice Parker and Justices Martin, Timrnon-Goodson, and Hudson were on the ballot, a non--profit group known as "FairJudges.net" (hereinafter "FairJudges") reported spending $259,101 to run television advertisements touting each of these justices as "fair judges" in the days immediately preceding the November 2006 election. These ads constituted "electioneering with respect to these candidates, which required FairJudges to have to report the -15- amounts it spent on these ads, along with those who donated money to pay for them, to the State Board of Elections. (A copy of these reports is attached as Exhibit 3.) Burley Mitchell, a former Chief Justice and lawyer in private practice, served as Chairman of Fairludges. Andrea Weigl, I/Ads Highlight 4 Candidates.' Some Question Legaiity of Spending by FairJudges.nez', The News Observer, October 31, 2006, at 5B (copy attached as Exhibit 4.) "The ads run by Fairludges were funded with reported contributions from approximately 21 different individuals and interest groups totaling $251,275. See attached Ex. 3. The North Carolina Democratic Party was the largest donor to FairJudges, making contributions totaling $75,000, or 29.85% of all fi.1nds reported by the group. Id. The political action committee of the North Carolina Academy of Trial Lawyers PAC now known as the North Carolina Advocates for Justice was the second largest donor to FairJudges, contributing $66,275, or 26.38% of all funds reported by the group. Id. All four of the Justices featured in the ads run by Fairludges won their elections. Brian P. Troutman, Comment, Party Over? The Politics ofN0rz'h Carolina's "N0n--Partisan" Judiciai Elections, 86 N.C. L. Rev. l762, 1783 (2008). Since the 2006 election, the NCATL and the NCAJ have appeared and taken a position on pending issues before this Court on at least 22 occasions as amici - 16 czm'ae.4 There is no indication that any of the four Justices who were featured in the television ads run by FairJudges recused themselves from participating in the decision in any of these cases based upon the contributions by the NCATL PAC to FairJudges.5 Similarly, Former Chief Justice Burley Mitchell appeared as counsel for litigants or amici curiae in at least 10 cases before this Court decided since the 2006 election.6 Although he served as chair of FairJudges, there is no indication that any of the four Justices who were featured in the ads run by FairJudges recused themselves in any of these matters due to Chief Justice Mitchell's leadership of FairJudges and participation in the case. Yet another example exists in the same context at issue in this case: redistricting. Even though the North Carolina Democratic Party was the largest donor to FairJudges,7 when this Court heard Pender County v. Bartlett, a 4 These 22 cases are listed at App. pp. 1-2. 5 During the 2012 election cycle, the NCAJ was the largest contributor to North Carolina Citizens for Protecting Our Schools an independent expenditure committee that supported Judge Ervin. The NCAJ gave NCCPOS $114,275 or 33% of the $344,275 it reported raising to provide support for Judge Ervin's campaign against Justice Newby. 6 These ten cases are listed at App. p. 3. 7 In addition to being the largest donor to FairJudges, the Democratic Party reportedly spent another $235,000 on mailers to support Democratic judges during the 2006 election, including Chief Justice Parker and Justices Tirnmons-Goodson and Hudson. The Republican Party reportedly spent $91,000 promoting Republican judges, including Justice Martin, during 2006. See Troutrnan, 86 N.C. L. Rev. at 1782. 17 redistricting matter challenging the enacted House Plan in 2007, none of the four Justices featured in the television ads run by Fairludges recused themselves, and there is no record of any party making a motion for recusal as the plaintiffs have done here. 361 N.C. 491, 649 364 (2007) The recusal patterns noted in the above examples demonstrate that the members of this Court do not have a history of recusal in cases where either a leader or 'principal donor to a group that makes independent expenditures in support of their election appears before the Court. Recusal in situations such as those outlined above were clearly unnecessary because there was no evidence that any members of this Court were predisposed to rule in favor of the NCATL, NCAJ, or Chief Justice Mitchell because of their involvement with FairJudges. And, until plaintiffs' motion in this action, it appears that no party has even considered the possibility of recusal on these grounds. Just as there was universal agreement that recusal was not warranted in the aboveecited cases, Justice Newby"'s recusal is not required here. Plaintiffs have provided nothing beyond speculation that Justice Nevvby might be perceived as being predisposed to rule in the State's favor in this litigation due to the efforts of the independent expenditure organizations they have identified. If anything, the connections strung together by plaintiff to show Justice Newby's propensity for 18 bias are far more attenuated here. Unlike the cases cited above, none of the donors to these independent expenditure organizations are parties in this lawsuit nor are they representing parties in this lawsuit. In addition to conflicting with this Court's previous recusal practices, plaintiffs' motion ignores plaintiffs' own efforts to influence the outcome of the 2012 race between Justice Newby and Judge Ervin. For example, representatives of plaintiffs NC NAACP, the A. Phillip Randolph Institute, and Democracy NC, all testified in deposition taken in these actions that their respective groups engage in voter registration and Get--Out--The-Vote efforts each election cycle. See Deposition of William Barber ("Barber pp. 29, 39; Deposition of Melvin Montford, pp. 10, 22, 29; Deposition of Bob Hall ("Hall p. 152. Although labeled as "non-partisan," these GOTV efforts are primarily aimed at getting minorities and young people, constituencies that overwhelming vote for Democrats, to the polls. See Barber Dep. 29; Hall Dep. 152. In a system where judges and justices are elected, these GOTV efforts, like the independent expenditures made in support of Justice Newby, involve political speech that is protected by the First Amendment. These expenditures no more require any member of this Court to recuse themselves than the independent expenditures in support of Justice Newby made by individuals and groups that are not parties to this litigation. 19 As a practical matter, the recusal standard plaintiffs urge the Court to adopt here is simply unworkable and fraught with problems. It would require each member of the Court to research whether every party or attorney who appears before them had ever expended money on his or her behalf during a previous campaign or contributed money to an independent expenditure committee that did, or whether such parties, attorneys or independent expenditure committees ever made statements that could be construed as calling that Inember's impartiality into question. Then, if a Justice identified any such linkage, under plaintiffs' recusal standard, the Justice would then be required to recuse him-- or herself from the case. According this recusal standard, the four members of this Court who were featured in the ads run by FairJudges would be required to recuse themselves any time the NCAJ took a position by filing an amicus brief or Chief Justice Mitchell appeared on behalf of a party in a case. This would prevent a majority of the Court's members from deciding matters of critical importance to the State. Clearly, such a standard is unworkable and untenable. The practical effort of such a recusal standard, if adopted, is to chill the speech and activities of independent expenditure groups such as those indentified by plaintiffs in their motion. If plaintiffs' motion is granted, then individuals and other entities such as these who are engaged in political that is at the core of the First Amendment--vvill be effectively shut out of participating in -20- the political process in the future out of fear that doing so could cause members of this Court to recuse should they or their donors or organizers find themselves as a litigant in a matter that must be decided by this Court. And at the same time, members of this Court would be held accountable for statements and actions over which they had no control. In his dissent in Caperton, Chief Justice Roberts warned of the dangers inherent in motions such as that filed by plaintiffs, saying: "This will inevitably lead to an" increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Caperron, 556 U.S. at 891 (Roberts, C.J. dissenting). The motion filed by plaintiffs here poses just such a problem. Neither the law nor the facts require recusal in this case. A determination that recusal is required, on the other hand, risks the creation of numerous problems for judges and citizens alike. IV. THE MOTION IS PREDICATED ON AN ASSUMPTION THAT PARTISAN INTERESTS INFLUENCE A DECISIONS Plaintiffs' motion appears to be predicated on an assumption that an elected Justice of this Court whose election was supported by those with a partisan perspective Will be swayed by partisan interests. This unsupported assumption is of course false, as can be seen in the many decisions by elected judges in North Carolina who have voted against the perceived interest of their party. -21- One example of such a case is Stephenson v. Bartlett, 358 N.C. 219, 595 112 (2004) (Stephenson the third decision in the Stephenson trilogy, in which all of the Republican members of this Court voted against the "Republican position" by rejecting the Stephenson plaintiffs' arguments in that appeal that a recently enacted statute taking jurisdiction away from the Superior Court of Johnston County for any further proceedings violated the Constitution. More recently, in Queen v. Hise, No. N.C. App. (Nov. 20, 2012), a special superior judge appointed by Governor Perdue, the Honorable Gary Trawick, a registered Democrat, granted the motions of Republican plaintiffs for summary judgment in a case brought by Democratic Senator Joe Sam Queen alleging that television ads authorized by Republican candidate Ralph Hise violated the state's Stand-By-Your-Ad law. On appeal, Court of Appeals Judge Cherie Beasley, also a registered Democrat, voted with the court's majority to affirm Judge Trawiclds order granting summary judgment. Many other examples can be found where both Democratic and Republican judges and justices voted against the perceived positions of their party. This is because all of our elected judges and justices swear to uphold and defend the Constitution, not to protect their political parties. It is neither helpful nor accurate to suggest that judges, who are elected on a non--partisan basis, will let partisan interests influence their decisions. This is particularly so where, as here, plaintiffs -22- acknowledge that there is no evidence of any actual bias on the part of Justice Newby orany of the other Justice of this Court. CONCLUSION For the foregoing reasons, the Legislative Defendants submit that plaintiffs' Motion to Recuse lacks any legal basis and that recusal is neither required nor advisable under the circumstances raised by plaintiffs. The Legislative Defendants are confident that Justice Newby and all members of this Court will decide this appeal on its merits, not on perceived partisan interests. - Respectfully submitted this day of December, 2012. -23- OGLETREE, DEAKINS, NASH, SMOAK STEWART, .C. Electronically submitted Thomas A. Farr Thomas A. Farr N.C. State Bar No. 10871 Telephone: (919) 787-9700 4208 Six Forks Road, Suite 1100 Raleigh, North Carolina 27609 N.C. R. App. P. 33(b) Certification: I certify that all of the attorneys listed below have authorized me to list their names on this document as if they had personally signed it. /s/Phillip J. Strach Phillip J. Strach NC. State Bar No. 29456 Telephone: (919) 787-9700 4208 Six Forks Road, Suite 1100 Raleigh, North Carolina 27609 Counsel for the Legislative Defendants -24- ROY COOPER ATTORNEY GENERAL Alexander MCC. Peters Special Deputy Attorney General N.C. State Bar No. 13654 apeters@ncdoj . gov Susan K. Nichols Special Deputy Attorney General N.C. StateBar No. 9904 snichols@ncdoj . gov NC. Department of Justice P.O. Box 629 Raleigh, NC 27602 Telephone: (919) 716-6900 Facsimile: (919) 716-6763 Counsel for All Defendants 25 .. CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Legislative Defendants' Response to Plaintiffs-Appellees' Motion for Recusal of Paul Newby has been served this day by depositing a copy thereof in a depository under the exclusive care and custody of the United States Postal Service in a first-class postage-prepaid envelope properly addressed to the following: Edwin M. Speas, Jr. John W. O'Hale Caroline P. Mackie Poyner Spruill LLP P. O. Box 1801 Raleigh, NC 2760_2~1801 Anita S. Earls Clare Barnett Allison Riggs Southern Coalition for Social Justice 1415 Highway 54, Suite 101 Durham, NC 27707 Adam Stein Tin Fulton Walker Owen 312 West Franklin Street Chapel Hill, NC 27516 Irving Joyner Jennifer Watson Marsh North Carolina NAACP P. O. Box 335 Durham, NC 2770?." Victor L. Goode Assistant General Counsel NAACP 4805 Mt. Hope Drive Baltimore, MD 21215-3297 And by e--mail only to the following: John A. Bussian The Bussian Law Firm, PLLC Attorneys for Arnicus Curiae North Carolina Press Association, Inc. Mark J. Prak Brooks, Pierce, McLendon, Humphrey Leonard, LLP Attorneys for Amicus Curiae North Carolina Association of Broadcasters, Inc. Hugh Stevens Stevens Martin Vaughn Tadych, PLLC Attorneys for Arnicus Curiae North Carolina Open Government Coalition EXHIBIT 1 . Page 1 of 2 Printed from the News Observer - Www.NewsObserver.com Published Sun, Oct 07, 2012 12:00 AM Modified Sun, Oct 07, 2012 04:49 AM For the court PUBLISHED IN EDITORIALS Just one of the seven seats on the North Carolina Find out more: Supreme Court is up for election this year, but the race is of more than routine interest. That's ?01' because the outcome is loaded with political potential. If incumbent Justice Paul Newby retains his seat Related Stories - (winning a second eight-year term) the present political-party divide on the state's highest court will remain as it is, 4 to 3 Republican. If challenger Sam Ervin IV wins, justices who . Related Images identify themselves as Democrats will gain the majority. How much does that matter'? For most of the cases this court hears, next to nothing. In a handful, however, political preferences no matter how much the justices swear they judge every case solely on the facts and the law -- have a way of coming to the fore. That's particularly true of redistricting, the once-a-decade dogfight in which the major parties mangle and manipulate voting districts so that their side is likely to come out on top.-Courts are often called on to make the final calls on redistricting plans. And it's the rare Supreme Court justice who, after judging such a case "solely on the merits," reaches a conclusion contrary to the party line. That's one reason why Democrats are backing Ervin (grandson of the late Sen. Sam Ervin) and Why Republicans are going all out for Newby, to the extent of setting up a super PAC to support their man with spending above and beyond the public financing that Newby (and Ervin) elected to receive. The PAC can raise and spend unlimited sums. Newby, who appears at tea party events, also gets support from Civitas Action of Raleigh. lt's all perfectly legal, but the effect is to undermine the public financing system and to inject more politics into the Supreme Court. Plus, it erodes public confidence in the judiciary -- when big money gets involved, whose tune does justice dance to? The flip side of all this is that both candidates, Ervin and Newby, are well qualified. Newby can cite the many opinions he's written and his constitutional expertise. Ervin is an effective judge on the Court of Appeals who previously served on the state Utilities Commission. Both are graduates of distinguished law schools and had extensive legal experience before they became judges. And though many of their endorsements come from predictable quarters -- business and industry for Newby, labor and lawyers for Ervin -- each man pledges judicial modesty and fairness to all. For voters with strong political leanings, the candidates' party identifications may decide the issue. On that score, it's a sad fact that the Republican-dominated redistricting in effect for this year's elections was extraordinarily partisan, setting up voting districts that go Way out their Way to - 1 1/27/2012 Page 2 of 2 disadvantage Democrats. An Ervin victory might eventually bring North Carolina's redistricting back toward middle ground. Newby's side of the ledger counts endorsements from several former Supreme Court chief justices, two of whom are Democrats. Their argument, not unreasonable, is that a sitting justice who's doing a good job deserves to stay on the court. Newby takes this a step further, hinting it's unfortunate that he has to face an opponent. Yet in a system that relies on elections to fill seats on the bench a system Republicans have championed -- challengers have every right to make their case. To us, Ervin's challenge to Newby is a credible one, and he has our editorial endorsement. He's fair, level-<> ance of bias, the judge may be 'unable to hold the balance between vindicating the interests of the court and the interests of the accused,' and should recuse himself from the proceedings. In re Nakell, 104 N.C. App. 638, 647, 411 159, 164 (1991), disc. review denied, 330 N.C. 851 (1992) (quoting In re Paul, 28 N.C. App. at 618). In Nakell, judge Lake, who later became a justice and the chief justice, refused to disqualify himself. His decision was upheld on appeal when the trial transcript showed that his responses to the lawyer's persistent interruptions were calm, deliberate, and unemotional. 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