Welcome back to The Assembly’s Courts newsletter. We hope you had a wonderful and relaxing holiday season. Here’s to 2024.
Also, one programming note. You’ll see a few new names here this year, as a few other Assembly reporters and contributors will be helping with this newsletter. As always, send any tips or ideas to courts@theassemblync.com
Now let’s get to it.
A New Year’s Demotion
On New Year’s Day, Judge Donna Stroud became the first chief judge of the N.C. Court of Appeals to be demoted from the top position.
At just three years, Stroud had the shortest tenure as chief judge. Nine previous chief judges either resigned or remained in the position until they died, according to the N.C. Supreme Court Historical Society.
Stroud told The Assembly that Chief Justice Paul Newby informed her about his decision in-person on December 19, 2023, after court officials had sent out a January calendar for oral arguments that still listed Stroud as chief judge.
Historically, the chief position has gone to the judge with the most seniority. That was Stroud. Now, the chief judge will be Chris Dillon, who was elected to the bench six years after Stroud. Dillon had been chair of the Judicial Standards Commission; Judge Jeffrey Carpenter, who had served as vice chair, will now take over that role.
Newby has not publicly announced the change in leadership, but the Court of Appeals website now lists Dillon as chief judge. Newby did not respond to a request for comment.
Stroud said that Newby justified his decision as merely following the lead of federal and state courts, which routinely rotate the top spot to ease the administrative burdens on any particular judge. However, Stroud said she suspects politics were at play.
There are plenty of reasons to believe her.
While Newby and Stroud are both Republicans, some in the party have charged that Stroud is insufficiently conservative. In 2022, Supreme Court Justice Phil Berger Jr. endorsed Stroud’s primary challenger, Beth Freshwater Smith, a former prosecutor and district court judge.
In a leaked Facebook message, Berger alleged Stroud “whipped the votes” to get Gene Soar, a former appellate court staff attorney, named as the appeals court’s new clerk. Berger called Soar the preferred candidate of the court’s Democratic judges, even though the ballots the 10 Republicans and five Democrats cast on the appointment were supposed to be secret.
Smith also got support from Berger’s father, Republican Senate Leader Phil Berger, as well as her conservative colleagues Jeffrey Carpenter and Jefferson Griffin. Her former colleague, Richard Dietz (who is now on the N.C. Supreme Court), also endorsed Smith.
The 2022 primary was a rare instance of Republicans actively campaigning against an incumbent from their own party, and an example of what many called the increasing political polarization of races that were once nonpartisan.
Though Newby never endorsed Smith, a photograph of the chief justice with her was displayed prominently in an ad posted on her campaign Facebook page, the News & Observer reported.
And in the same week that Stroud was demoted, Newby presided over a ceremony to swear in Smith as a special superior court judge to a seat the Republican General Assembly created last year. Newby also recently appointed Smith to the N.C. Innocence Inquiry Commission.
“Those things all seem to be somewhat related,” Stroud said.
–Michael Hewlett
Back in the News
Speaking of the state Court of Appeals and allegations of playing politics, a familiar case popped up in the first batch of opinions released in 2024.
It’s the case from William T. Culpepper III, a former Democratic lawmaker who served as general counsel for the state Office of Administrative Hearings from 2015 to 2022. Culpepper claims he lost his job in June 2022 because he was a well-known Democrat, and was subject to political affiliation discrimination.
The case involves Donald van der Vaart, a Republican with ties to party power brokers that Republican Chief Justice Paul Newby appointed to lead the Office of Administrative hearings in 2021.
Van der Vaart had served in key leadership positions under Republicans Pat McCrory and Donald Trump, but had no discernible record of hearing cases or practicing law when he was named chief judge.
Critics claimed politics played a key role in Newby’s decision to put van der Vaart in the job instead of reappointing Julian Mann, a registered Democrat known for steering the agency for three decades with impartiality and efficiency. The Assembly wrote about those allegations in September 2022.
The Republican-controlled General Assembly quickly made changes that gave van der Vaart more power to reorganize the agency and do away with state protections for some employees.
Within the Office of Administrative Hearings, an executive branch agency, aggrieved state employees do have some power to challenge job decisions. Culpepper claimed van der Vaart improperly reclassified his job to give him fewer employment protections, making it possible to remove him from the post without cause and open it to someone with GOP party loyalties.
In December 2022, Beecher R. Gray, an administrative law judge with ties to powerful Republicans, dismissed Culpepper’s political affiliation claim. But Gray, a law school classmate of state Senate leader Phil Berger and McCrory appointee in a previous judicial position, agreed with Culpepper in part.
He found that Culpepper’s position had been inappropriately reclassified, ordered that he be reinstated to his status as a career state employee, and awarded back pay and benefits.
Culpepper appealed the part of Gray’s ruling on the political allegations. In the latest ruling, a three-judge Court of Appeals panel made up of Republicans April Wood and John M. Tyson and Democrat Allegra Collins unanimously upheld Gray’s ruling and said Culpepper had not presented sufficient evidence of political discrimination.
–Anne Blythe
Constitutional Concerns
Last week, Brian Martin, a retired attorney living in Stokes County, invoked a conversation he once had with Justice Antonin Scalia in his request that the U.S. Supreme Court determine whether former President Donald Trump is eligible to appear on primary ballots this year.
Martin, a former Supreme Court clerk who went on to serve as one of the federal government’s highest ranking attorneys under two Republican presidents, was talking with the late justice about why the court decided to hear Bush v. Gore, which effectively decided the 2000 presidential election.
Scalia, Martin recalled, said something to the effect of, “What case could be more important than one raising a federal constitutional issue that concerns the election of a president?”
Martin says the same logic should be applied to the Colorado Supreme Court’s determination that Trump is barred from serving as president again because he “engaged in” an insurrection—the January 6, 2021 attack on the U.S. Capitol—in violation of the Constitution.
The country’s highest court is obliged to “decide issues of national import, especially when the decision may be unpopular,” Martin’s attorney, Wallace Lightsey, wrote in a brief submitted to the court last week.
The brief also argued Supreme Court intervention is necessary to ensure all American voters had the same options. Martin had previously challenged Trump’s candidacy in North Carolina. The State Board of Elections dismissed Martin’s challenge on technical grounds, but he subsequently filed a lawsuit in Wake County Superior Court that is still pending.
It’s not clear whether the highest court was swayed by Martin’s reasoning, but it did agree to take the case. An order issued Friday scheduled oral arguments for February 8.
The New York Times anticipates a broad ruling, resolving not only whether Trump appears on the Colorado primary ballot, but also whether he is eligible to run in the general election and hold office at all.
Trump referenced the court’s decision to hear the case at a rally in Sioux Center, Iowa on Friday, the Times reported. “All I want is fair; I fought really hard to get three very, very good people in,” he said, referring to his court appointees.
–Carli Brosseau
Around the State
Tobacco’s Second Wind
For 20 years, North Carolina farmers and brokers have smuggled tobacco to Mohawk territories in Canada. A massive sting operation offered an inside look at the underground economy.
Mark Harris Is Not Asking For Forgiveness
The minister and politician stepped aside after ballot fraud tainted his congressional race. Now he says his seat was stolen—and he wants it back.
Best Interest of the Child
A three-part investigation from The Assembly and WBTV in Charlotte looks at a child welfare system that wields enormous power with little accountability.
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