State Supreme Court

Supreme Court candidates struggle with each other, lack of voter interest

Partisan concerns in an nonpartisan judge race

cjarvis@newsobserver.comOctober 11, 2012 

  • Justice Paul Newby Career: N.C. Supreme Court justice since 2004; assistant U.S. attorney 1985-2004; general counsel, Cannon Mills Realty in Kannapolis; associate, Van Winkle Law in Asheville. Accomplishments: Wrote a book on the state Constitution, received N.C. Bar Association Constitutional Rights Award; Eagle Scout. Family: Married to Macon Tucker Newby; four children. Key ruling he cites: A case involving separation of powers and judicial restraint stemming from a lawsuit in which some residents challenged the requirement they pay maintenance fees at the Lake Junaluska development in the mountains. “I wrote that folks knew what they were getting when they bought there,” Newby said. “They were buying at Lake Junaluska, not the Magic Kingdom. There weren’t little pixies that would light the street lights or pave the roads. … They would have to respect those restrictive covenants. Most folks would say that’s a common sense outcome.” Other rulings: Newby wrote for the court majority in voiding a woman’s adoption of her former domestic partner’s biological child, closing an avenue for same-sex couples to adopt. He sided with the majority ruling that the state medical board couldn’t stop doctors from monitoring executions. Wrote for the majority that a Durham couple couldn’t sue an out-of-state company accused of predatory lending. Judge Sam Ervin IV Career: N.C. Court of Appeals since 2009; N.C. Utilities Commission from 1999-2009; private practice from 1981-1999. Accomplishments: Produced more than 325 opinions and helped decide more than 900 cases on the appellate court. Family: Married to Mary Temple Ervin; two children and two step-children. Key ruling he cites: A case that determined landowners next to a man-made harbor have property rights that extend into the waters. Ervin called it a “fair and common sense” decision reached after interpreting very old records. Other rulings: Wrote an opinion that the N.C. Institute for Constitutional Law did not have standing to sue over state tax breaks awarded Google for locating in N.C. While serving as a utilities commissioner, he helped implement the Clean Smokestacks Act and the state’s Renewable Energy Portfolio Standard. On the Court of Appeals he dissented in a ruling that held the state’s sedimentation-control law didn’t apply because sediment didn’t reach nearby water.

Justice Paul Newby hit the road with his son well before sunrise Thursday, leaving his home in Raleigh for a 7:30 a.m. breakfast in Charlotte.

The man who wants to replace him on the N.C. Supreme Court, appellate Judge Sam “Jimmy” Ervin IV, spent the afternoon in Newby’s hometown of Jamestown in Guilford County at the building and real estate industries’ annual “Pigs, Poultry & Politics” shindig before heading back to Raleigh for the state NAACP dinner.

Both men have to spend a lot of time driving these days because, as candidates for judicial office, it’s hard getting anyone to pay attention. A large number of voters simply skip the judges section of the ballot each year.

“Going anywhere people allow me to go,” Ervin said of his on-the-road campaign strategy. “Obviously, it’s a big state.”

“I call it retail politics,” Newby said by phone after an interview with the newspaper in Gastonia, “shaking hands with people, asking them to consider your record. The big challenge is people don’t even know we’re elected. We’re not hitting people’s radar screen.”

But the Republican and Democratic parties are paying attention. Although judicial elections are officially nonpartisan, there are strong partisan stakes in the outcome of this race. In the balance is the current 4-3 split on the state Supreme Court that currently tips conservative. Newby is a registered Republican and Ervin a Democrat.

While the court, by definition, decides the most contentious and far-reaching legal questions of the day, the overshadowing controversy headed its way will be the legislative and congressional redistricting that has given state Republicans a great deal of control.

That’s why outside interests have started raising money for their candidate – in this case, Newby – to bolster the limited funds candidates can raise. Both candidates received $240,100 in public financing; Newby has raised about $94,000 from individuals and Ervin about $85,000, in the first half of this year.

The N.C. Judicial Coalition, a super PAC, was formed by prominent conservatives in the state to help Newby, although it has refrained from spending whatever money it might have raised so far, apparently saving it for a surge in the final weeks. Similar unlimited fundraising by a political action committee took place in 2006, with trial lawyer money, to influence the Supreme Court election. But unlike then, independent-expenditure committees now known as super PACs can expressly advocate for specific candidates.

Civitas Action, a nonprofit advocacy group, earlier this year bought $72,000 worth of radio ads for Newby, using money from a nonprofit charitable organization in Washington, D.C., called Judicial Crisis Network. There is talk that Democrats plan to raise money through a nonprofit entity created in June, Support N.C., but it has not reported any financial transactions yet.

Their respective political parties have embraced Newby and Ervin in campaign events across the state.

Outside financing

Newby and Ervin didn’t sound too far apart on judicial philosophy at a public forum sponsored by the Federalist Society in Raleigh last month, except on the issue of outside financing. Ervin said the state has been going in the other direction, toward campaign finance reform, for several years following record-setting million-dollar expenditures by Supreme Court candidates in 2000.

“I raise the question as to what impact such expenditures have on the public perception of the impartiality of the judiciary, and whether the increased politicization of these races runs a risk that the citizens will lose confidence in the fairness and impartiality of the decisions that are made by the courts,” Ervin said. “I think the public has to decide, is this the way that we want judicial elections to be conducted?”

Newby aligns with the view that political contributions amount to protected free speech. “That is one of the most sacred rights that we have as citizens,” Newby said. “When we see that limited … it’s always ended up in a bad way.

“Now I don’t know anything about these PACs, other than what I read in the paper,” he said. “I’m hoping that whoever they may be [they] will simply help folks know who we are because this is a race about qualifications.”

What’s in a name?

A poll earlier this month showed Ervin leading by 31 percent to 23 percent. It also showed that 46 percent of those polled hadn’t decided which candidate they would vote for. Newby’s fear is that the Ervin name will trump his incumbency advantage.

Ervin comes from a lineage of North Carolina judges. He is the grandson of the late U.S. Senate Watergate Committee Chairman Sam Ervin. His father was a federal judge. He currently serves on the state Court of Appeals.

Newby – who points out his own name carries a negative connotation, being a synonym for beginner – worries the name game works against him.

“Are people going to vote on name recognition or are they going to vote on qualifications?” Newby asked.

The men share a few similarities besides their love for the law. They were born six months apart – Newby is 57 and Ervin 56 – and both are native North Carolinians. Newby sometimes draws distinctions between their backgrounds.

“We didn’t have enough money to even know any lawyers,” Newby told a Junior League forum in Raleigh on Wednesday night.

Democracy’s underpinnings

Newby was born in Asheboro and raised in Jamestown, his mother a teacher and his father a linotype operator. He remains an Eagle Scout, which is where he recalls getting excited about the Constitution and the Bill of Rights as a boy.

He still loves to talk about those fundamental underpinnings of the American democracy. At a Rotary Club meeting in Cary this week, he told a story about North Carolina’s role in ensuring the Bill of Rights was in place before it would ratify the Constitution.

His enthusiasm for the founding documents – and for what he sees as government’s limited role in protecting American freedoms – has shaped his lifelong political and religious beliefs. He is an elder and Sunday school teacher in Christ Baptist Church in Raleigh. In public appearances over the years he has been aligned with leaders of the state’s Christian conservatives, opponents of same-sex marriage and has attended Tea Party events.

But Newby stresses he believes judges should be fair and impartial, and he points as proof to the endorsements he has received from four former state Supreme Court chief justices, including two Democrats: Burley Mitchell and Jim Exum. Several other Supreme Court and appeals court judges, Republican and Democrat, have endorsed him.

“I think that undercuts any argument that somehow there is some partisanship,” Newby said. “Look at my cases the last eight years. I would agree judicial philosophy is important. Mine is that I will simply apply the law, fairly and impartially, in every case, but I will not intrude into the roles of the other branches of government.”

Called to the law

Ervin was born and raised in Morganton and still lives there, where he takes his judicial skills to the soccer field, officiating school matches. He belongs to the First Presbyterian Church of Morganton, where he was a deacon.

He attended public schools in this state until law school at Harvard, but he says becoming a lawyer wasn’t a given, despite his family’s tradition. He says his father encouraged him to choose his own path.

“I thought about other academic kinds of things, but I ultimately concluded I felt like I had a calling to the law, if you want to call it that,” Ervin said. “But that was not a foregone conclusion.”

Ervin also spent many years in private practice. He eventually was appointed to the state Utilities Commission, where he says hearing procedure was good preparation for becoming a judge.

He, too, has picked up endorsements from influential groups, including the N.C. Association of Educators, the N.C. Troopers Association, the N.C. Sierra Club, and the N.C. Advocates for Justice, a predominantly trial lawyers group.

Most rewarding during his time on the appeals court, he says, has been the research and writing, finding the right legal resolution to complex cases. He hopes he has made a meaningful contribution to the state’s judicial system.

He frequently stresses his belief that someone sitting on the bench should not have a political or ideological agenda, and he thinks he’s been successful at that.

“Admittedly nobody is the best judge of the quality of their own work,” he said. “But I think I’ve got a reputation for not having a persistent pattern of ruling for or against any particular type of party. I’ve made virtually everybody mad at some point or another in the course of my career. I expect to continue to do that regardless of whether I stay on the Court of Appeals or go to the Supreme Court.

“That’s the proper role of judges. You’re supposed to be impartial. You’re not supposed to perpetuate any sort of political agenda, and I think my record reflects that.”

Jarvis: 919-829-4576

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