The New Judge in Town

This article is published jointly by The Assembly and WRAL News.

Julian Mann smiled last summer as a photographer captured the moment the chief justice of the North Carolina Supreme Court handed him a plaque.

For nearly 32 years, Mann had led the low-profile but influential state Office of Administrative Hearings, which reviews contested cases from people, businesses, and organizations unhappy with decisions that state agencies have made.

The chief justices of the state Supreme Court—Democrats and Republicans alike—had appointed Mann to eight terms as chief administrative law judge. The Raleigh lawyer, a Democrat, had built a national reputation for impartiality and effective stewardship.

Mann may have smiled as he accepted the “Friend of the Court” award, but his happiness was a facade. Chief Justice Paul Newby, a Republican who’d been sworn in six months earlier, had declined to reappoint him.

Newby instead appointed Donald van der Vaart, a Republican who served as state environmental secretary for Gov. Pat McCrory, and later on the federal Science Advisory Board in the Trump administration. Van der Vaart has a PhD in chemical engineering and a law degree, but had no apparent record of trying cases or practicing law.

Edwin Felter, former chief administrative law judge in Colorado, said Newby’s decision to not reappoint Mann was “outrageous.”

“[Mann] was an icon among administrative law judges and other chiefs,” Felter, a Democrat, told The Assembly. “His reputation was golden. He was always viewed as nonpartisan. He was a great chief judge. It turned into politics with a new chief justice.”

Skeptics say that Newby, Republican legislators, and van der Vaart have steered the Office of Administrative Hearings in a partisan direction.

Last year, the Republican-controlled General Assembly gave van der Vaart the power to exempt five positions in his office from a state law that protects career employees from partisan dismissal, making them at-will positions. He used that power to dismiss the office’s general counsel, a former Democratic legislator.

When administrative law judge jobs have come open, van der Vaart has not advertised them externally, as his predecessor did. (Mann said he often received 50 to 60 applications, which a screening committee reviewed to remove politics from hiring.)

The four administrative judges hired by van der Vaart are all registered Republicans. One clerked for Newby, and two worked with van der Vaart at the Department of Environmental Quality. One of the DEQ alums is John C. Evans, who was van der Vaart’s chief deputy.

In July, van der Vaart received even more authority from the legislature to create or eliminate jobs within the agency.

State Rep. Joe John, a Wake County Democrat and former judge, said he was “deeply concerned” about a trend toward politicization of the courts, and fears that the concentration of power van der Vaart now has could make it worse.

In an email to The Assembly, John did not refer to van der Vaart by name. But he said that the General Assembly’s most recent action meant that one person with “a political or ideological agenda, or both, would thereby possess unchecked authority to ‘pack’ the agency with like-minded individuals and enforce compliance with that agenda.”

Van der Vaart, 64, declined to be interviewed for this article. At his request, The Assembly emailed him questions. Van der Vaart did not answer several questions and provided brief answers to others.

He said that the four administrative law judge positions were filled according to the statutes, which require only that the appointees are authorized to practice law.

He referenced the office’s nonpartisan tradition, but he didn’t directly respond to a question about whether his stewardship is changing that history of independence. He declined to elaborate on his answers.

He also declined to say whether he had consulted with Newby or anyone representing Newby since he was named chief administrative law judge.

“These are management initiatives I have undertaken,” he wrote. “OAH is an independent agency.”

Newby declined to comment for this article. When he appointed van der Vaart, Newby said that van der Vaart had “accumulated a vast amount of experience in regulatory, legal, and administrative operations. His skill set is a great fit for directing OAH.”

Mann, who is 75, confirmed to The Assembly that he’d sought reappointment. There is no mandatory retirement age for administrative law judges in North Carolina, as there is for other judges in the state court system.

“We spent 32 years trying to bring impartial administrative justice to the citizens of our state,” Mann said. “All you can do is build what you can build during your tenure and hope it continues into the future. But there’s no guarantee.”

The General Assembly created the Office of Administrative Hearings in 1985 to hear appeals of decisions made within the various departments in state government.

The office has a dozen administrative law judges, and is often the first step into the court system for state employees who feel aggrieved, or for anyone questioning the decisions of state regulators.

The judges hear tax disputes, challenges to environmental penalties, day-care license revocations, hospital certificate-of-need requests, and Alcoholic Beverage Control Commission permits and penalties. They also hear claims of housing and employment discrimination against state agencies.

The judges, who make $121,600 a year, are kept separate from other agencies to insulate them from politics and to promote a neutral, fair process. Their decisions can be appealed to a state Superior Court judge and, in some cases, all the way to the state Supreme Court.

Twenty-five states have a similar structure, called a central panel, serving under the leadership of a chief judge.

Lorraine Lee, the chief administrative law judge in Washington State, served on a group that developed a code of conduct for administrative law judges across the country. The code says the judges must act “without fear or favor.”

“It’s really, really important for the public to have confidence in our impartiality,” Lee told The Assembly.

Over the years, North Carolina’s administrative law system hasn’t received much attention from legislators. But the naming of a new chief judge has spurred interest.

In a committee meeting in June, Rep. Sarah Stevens, a Republican from Mount Airy, dryly explained a bill she’d introduced. But the bill was more significant than her low-key presentation indicated. It shifted power from the legislature to the chief administrative law judge to create or eliminate jobs within the 60-employee agency, as long as the office stays within its budget.

That change would give van der Vaart far more power than his predecessor had. He could, for example, decide to close the offices scattered around the state that investigate and hear civil-rights and housing-discrimination complaints.

Rep. Marcia Morey, a Durham County Democrat and former district court judge, questioned why the General Assembly should relinquish its authority to determine what positions are needed in the agency, and hand that to one politically appointed person who is not confirmed by legislators.

“He’ll be able to do any reorganization or firings or appointments based on his own political beliefs and desires,” Morey told The Assembly.

Van der Vaart told lawmakers he wanted to eliminate a job that had been persistently vacant, and use the money to offer higher salaries to attract high-quality applicants to other positions.

Lauren Horsch, a spokeswoman for Republican Senate leader Phil Berger, said the Office of Administrative Hearings needs to have the same flexibility that other state agencies have to organize and hire staff to best run their operations.

“This is only a controversy because Democrats say it is,” Horsch said in a statement to The Assembly.

Stevens’s bill got bottled up in committee this summer. Key lawmakers took the essence of her bill and tucked it into the state budget, which Gov. Roy Cooper, a Democrat, signed in July.

Gov. McCrory named van der Vaart secretary of the state Department of Environmental Quality in January 2015. The new secretary “wasted no time in promoting his conservative brand of environmentalism,” The News & Observer’s John Murawski wrote in a profile titled, “NC’s new environmental regulator is polarizing figure.”

Van der Vaart had spent much of his career as a manager in the department, and was the first secretary to rise from within the agency. Upon appointment, he immediately jettisoned two Republican deputies whom some viewed as not conservative enough on regulatory issues.

Environmentalists saw him as an adversary. Van der Vaart said he was merely balancing environmentalism and economics—“protecting the environment while we keep energy affordable,” he told Murawski, who now writes for the conservative website RealClearInvestigations.

After Roy Cooper thwarted McCrory’s bid for reelection in November 2016, van der Vaart used a tactic called “burrowing” that sometimes is used in the federal government after the election of a new president: he demoted himself and Evans, his chief deputy, into career jobs protected from political dismissal.

About a year later, van der Vaart and Evans were put on leave. The agency’s human resources director said it was not a disciplinary action, but involved “conduct and recent actions that may have compromised” the department.

Van der Vaart and Evans had published an article in an environmental legal journal that contradicted state policy. Van der Vaart also was appointed to the Trump administration’s Science Advisory Board.

Michael Regan, Cooper’s first environmental secretary, said in a letter archived by WRAL that van der Vaart did not speak for North Carolina or the state Department of Environmental Quality. Van der Vaart was directed not to do any work on behalf of the board on state time.

Van der Vaart soon resigned, accusing the Cooper administration of moving to “stifle my contributions to scientific and legal discourse in professional journals.” Evans also resigned.

“The state has traditionally found it difficult to recruit young people without the added specter of politicization of science and law,” van der Vaart said in his resignation letter. “Sadly, that specter is now clearly visible.”

A few years later, the tables would be turned, and van der Vaart would be the one accused of playing partisan politics.

Van der Vaart walked into Courtroom A on the first floor of the Office of Administrative Hearings building in Raleigh on a Tuesday morning in August. Dressed in a seersucker suit, he settled into his seat and opened the proceeding.

A Cary couple was in a dispute with the Department of Environmental Quality about whether their backyard was part of a riparian Neuse River buffer. They had installed some dirt berms to create a BMX track for their child. Someone complained to the DEQ, and a subsequent inspection led to a notice of violation.

Van der Vaart listened to both sides and asked questions. He occasionally injected humor into the issue, which raised questions about what constituted a perennial stream, and what lines on a map from the 1970s had to do with what the property looked like in 2022.

In his email to The Assembly, van der Vaart praised Mann’s leadership, but said he had several improvements he wanted to make, including strengthening public access to proceedings and decisions.

He also defended his qualifications. “I believe my career as a state employee working for a regulatory agency, managing professionals and publishing in administrative law has prepared me to serve OAH,” he wrote.

He’s assigned himself to hear some high-profile cases. Among them is a complaint filed by Wake Stone that seeks to overturn a decision by the state Department of Environmental Quality, so that the company can operate a quarry next to Raleigh’s Umstead State Park.

The case could pit van der Vaart against a state agency that he oversaw for nearly two years. At one point in August, the Department of Environmental Quality was a party to 23 cases before the Office of Administrative Hearings. Van der Vaart had assigned himself to hear all but three of the cases.

Environmental groups question whether they can get a fair shake from him. As DEQ secretary, “van der Vaart actively worked to undermine public health and environmental protections on a broad front,” the North Carolina League of Conservation Voters recently wrote.

Van der Vaart curtly dismissed the criticism, calling the group “an advocacy organization.”

A contested case can benefit from a judge’s expertise, he said. “Simply having expertise in a certain area of the law,” van der Vaart wrote, “should not disqualify an ALJ from hearing a case that deals with that area.”

After the legislature gave him the authority to convert positions to at-will jobs, van der Vaart designated the general counsel job as one of them. The job included advising the leaders of the office’s three divisions, monitoring the General Assembly, handling public-records requests, and filling in as an administrative law judge.

Bill Culpepper, a Democrat and former member of the state House, had held the job for seven years. He objected and filed a petition (ironically, with the Office of Administrative Hearings) to reverse it. Culpepper said his job did not involve making policy, managing employees, or having a partisan political agenda.

He also said that partisan politics motivated both van der Vaart and legislative Republicans, who he said wanted to rid the office of Democrats. In his petition, Culpepper said van der Vaart wanted to replace him with “someone of a different political affiliation or who does not have the same history of political activity on behalf of and within the Democratic Party.”

Mann, the former chief judge, told The Assembly he never saw any need to classify some jobs in the office as at-will. He said keeping employees covered by the State Human Resources Act “offers protection and encourages impartiality.”

He also said Culpepper was “an excellent legal counsel. I don’t know what Bill Culpepper did after work-hours in politics. He gave me sound legal advice.”

Van der Vaart dismissed Culpepper from his job on June 29, effective the following day. Culpepper has filed a petition asking to be reinstated as a career state employee.

In a written response to Culpepper’s petition, van der Vaart said he did not request that the legislature designate the five positions as at-will, and that he did not consider Culpepper’s political affiliation when making his job at-will.

To show it wasn’t political, he also said he’d designated a job held by Ashley Berger Snyder—a Republican who is the daughter of Sen. Berger—as at-will (although he hasn’t fired her).

The provision making the five jobs at-will was slipped anonymously into last year’s budget; Rep. Stevens, who has followed the Office of Administrative Hearings over the years, said she didn’t know how it got there.

But Stevens also told The Assembly she supported it. When the office’s leadership changes, she said it would help the new chief administrative law judge “get some of the people who might be good for you, and let you get rid of some dead weight.”

She said she’d never heard any discussion about targeting Democrats for removal, and praised Mann’s leadership. She said Mann “wanted to keep his agency above reproach” and that she’d be watching the office to make sure that continued.

“I don’t want to see it go partisan,” she said.

North Carolina’s Office of Administrative Hearings was born in partisan controversy. Democrats in control of the General Assembly in the 1980s didn’t want to give appointment powers to Republican Gov. Jim Martin. So they directed the chief justice of the state Supreme Court, who was a Democrat, to appoint the leader.

“Folks like me and Newby have seen [partisan politics in the judiciary] before,” said former state Supreme Court Justice Bob Orr, a longtime Republican who has left that party. “That doesn’t make it right for you to do it.” Orr was disappointed when Newby didn’t reappoint Mann. “I always thought that Julian ran as apolitical an operation that you could humanly do,” Orr told The Assembly.

Mann, who was named chief administrative law judge in 1989, was the second person to hold that job. The former trial lawyer built the fledgling office into one of the most respected in the country.

Mann has served as president or chairman of two national associations of administrative law judges, and is chair-elect of the judicial division of the American Bar Association, a prestigious post.

Bob Cohen, former chief administrative law judge in Florida and a Republican, said Mann was “outstanding in every way” and “universally well respected.”

Willis Whichard, a Democrat who served on the North Carolina Supreme Court for 12 years, was unhappy when Mann wasn’t reappointed, but not shocked.

“I’ve been around North Carolina politics for 65 years. Newby becoming the chief justice represents a sea change,” said Whichard. He said that Newby “comes from a more far-right element of the Republican Party” than his Republican predecessors as chief justice, I. Beverly Lake and Mark Martin, who re-appointed Mann.

Newby, who won the chief justice race in 2020 against incumbent Cheri Beasley by just 401 votes, has moved to put his stamp on the judiciary.

In doing so, he’s shown that partisanship is in the eye of the beholder. Newby has publicly criticized his Democratic colleagues on the Supreme Court for what he says is partisan bias at the same time that he’s moved to fill jobs with Republicans.

“There’s been a much greater emphasis on putting Republicans in these positions than we’d seen under Mark Martin or Beverly Lake,” Orr said.

Last month, Mann returned to Raleigh from the American Bar Association’s annual meeting in Chicago, where newly retired U.S. Supreme Court Justice Stephen Breyer received the association’s top honor.

Mann, dressed casually and appearing relaxed and fit, said that Newby had the right to appoint the chief administrative law judge he wanted, and that he’s not bitter.

“I took that as the direction I was going in was not what he wanted,” Mann said. “I assume the direction he wanted is the direction it’s now going in.”