State judicial code makes discipline unlikely for Justice Paul Newby
The only registered Republican on the state Supreme Court likely won’t face any consequences after publicly disparaging his fellow justices, urging a crowd to watch their work over the next 18 months for judicial activism, and telling people who don’t like America to “just leave.”
“Sue till you’re blue. Sue till you’re blue,” said Paul Newby during a speech in Wake County two weekends ago. “What do you think the most dangerous branch of government is? The judicial branch is the correct answer. Imagine seven AOC’s on the state Supreme Court.”
Newby, who has announced he will run for Chief Justice in 2020, was met with clapping and a loud “boo” from the crowd. He was referring to New York Democratic Congresswoman Alexandria Ocasio-Cortez, whose initials have become a sort of Republican slur.
“Well, folks, we’ve got six,” the most senior justice on the high court said. “It’s six-to-one. As my daughter Sarah said, I am the last man standing. I lose sleep at night thinking what would it be like if we had no one to hold accountable those that want to cause social change throughout judicial branch.”
WRAL was the first media outlet to report the comments after receiving a recording of the campaign event at which Newby spoke. Policy Watch has since also received the recording.
Newby’s speech was a little over nine minutes long. In it, he accused the left of spending $1.5 million “to get their AOC person on the court,” referring to last year’s race in which now-Justice Anita Earls, a registered Democrat, beat Republican incumbent Barbara Jackson.
On Friday, Justice Earls said she would not comment on Newby’s remarks. Chief Justice Cheri Beasley and the North Carolina Administrative Office of the Courts also declined comment, according to emails from spokeswoman Sharon Gladwell.
“NCAOC does not get involved in elections or campaigns,” she wrote. “We are a neutral business office for the courts.”
Newby did not return a call for comment left Friday at his judicial chambers.
His comment about Supreme Court race expenditure last year is particularly noteworthy given that there was about $3 million poured into Newby’s 2012 campaign from out of state sources to help secure his election. Nevertheless, the justice said in his speech that it’s been a long-term strategy by former President Barack Obama and his “inner circle” to pack state supreme courts for the day the U.S. Supreme Court kicks hot-button issues back down to the state level.
One such occurrence took place recently when the U.S. Supreme Court ruled that partisan gerrymandering was out of reach for the federal courts, but effectively invited states to take action on the issue. Common Cause v. Lewis, a North Carolina partisan gerrymandering case, is currently at trial in Wake County Superior Court and is expected to ultimately find its way to the state Supreme Court.
Newby didn’t mention that issue or case specifically, but he did tell the crowd to watch the court over the next year and a half for the decisions his colleagues made.
“Keep your eyes open and your ears open for the next 18 months and see what kind of judicial activism occurs on your North Carolina court,” he warned. “Just watch it, because it only takes four votes on the Supreme Court to say what the constitution of North Carolina requires, and you fill in the blank. Four votes.”
Rules governing judicial conduct
The comments could be grounds for parties to the Common Cause litigation to ask Newby to recuse himself when the case gets to the court. However, Jim Drennan, who works for the University of North Carolina’s School of Government, said it’s not likely the justice would oblige.
“The recusal statutes are kind of general,” Drennan said, adding later that even the judicial conduct and ethics line for judicial candidates is difficult to define.
Judges are governed by the North Carolina Code of Judicial Conduct, which contains seven “canons” outlining appropriate behavior. Canon 3, subsection C covers when a judge should be disqualified from a hearing.
Parties to cases can make recusal requests when a judge’s impartiality may reasonably be questioned, including instances in which the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings.
Canon 7 of the Code of Judicial Conduct governs a judge’s ability to partake in political activities. Drennan says that Code has liberalized judges’ ability to be political over the years.
Permitted political conduct includes the ability for judges to attend, preside over and speak at any political party gathering, meeting or other convocation, including a fund-raising function for himself/herself. It also allows judges to identify themselves as members of a political party and solicit funds and support for their campaign, among other things.
Drennan, after reading the entirety of Newby’s remarks, acknowledged their partisan nature, but said it was a partisan race, and the justice is a candidate in that race.
“There’s a fair amount of freedom for judges when they’re running for office,” he said.
If Newby was going to be admonished for his remarks, the public likely wouldn’t know about it.
The Judicial Standards Commission accepts complaints or allegations of misconduct or disability made against judges and justices of the North Carolina General Court of Justice and commissioners and deputy commissioners of the North Carolina Industrial Commission. In appropriate cases, it orders investigations into whether the alleged conduct, if true, warrants the initiation of disciplinary proceedings to recommend to the state Supreme Court that a judge be publicly disciplined for the conduct.
In other cases, the Commission issues private letters of caution. Carolyn Dubay, the Executive Director of the Commission, said because the vast majority of complaints allege only that a judge made a legal error in a case and seek intervention to correct that error, those complaints are dismissed without investigation.
“This accounts for the very high dismissal rate without investigation,” she said. “The Commission routinely investigates credible complaints of judicial misconduct that do not relate solely to an allegation of legal error.”
In 2018, the Judicial Standards Commission, which is made up of 13 members, including judges, attorneys and citizens, considered 362 complaints. It authorized 59 preliminary investigations and 16 formal investigations, according to a fact sheet on its website. It issued eight private letters of caution, six statements of charges and there were three disciplinary decisions issued by the state Supreme Court.
Dubay can’t comment on specific situations like Newby’s, but said the process for disciplinary review does not change when a complaint is made against a Supreme Court justice.
She also reiterated that the Commission serves two functions — in addition to discipline, it provides education and training for judges and commissioners across the state and advises them on their obligations under the North Carolina Code of Judicial Conduct.
That means the Commission could resolve a situation dealing with recusals in two very different ways depending on how the issue comes up for review.
“It could be that a judge calls for advice or we could receive a complaint that a judge did not recuse himself or herself in a case,” Dubay said.
The most recent disciplinary action from the state Supreme Court to stem from a Commission recommendation came down in May. Cumberland County District Court Judge April Smith was publicly reprimanded for violating Canons 1, 2A, 3A(3), and 3B(1) of the North Carolina Code of Judicial Conduct, and for conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
Smith was alleged to have engaged “in conduct inappropriate to her office by demonstrating a lack of respect for the judicial office and for the Chief District Judge; by failing to facilitate the administrative duties of the Chief Judge and court staff; by repeatedly and regularly making disparaging comments about the Chief Judge to other judges, judicial staff, clerical staff, and members of the local bar; and by failing to diligently discharge her duties, bringing the judicial office into disrepute,” according to the reprimand from the Supreme Court.
Other reprimands from the Supreme Court in the past couple of years (there have only been five others since 2015) involve allegations of judges not issuing timely orders in cases, driving while intoxicated and not reporting extra income, as required by the Code of Conduct.
Inviting political opponents to “just leave” the country
In addition to his comments about his colleagues and urging listeners to watch for judicial activism, Newby also spoke to the crowd about why he believed it was important to support the other Republican candidates for the high court.
“Do you want a government of the judges by the judges and for the judges?” he asked.
He was met with a resounding “NO” from the crowd.
“We’re very much at a point in time where we could have a government of the judges, by the judges and for the judges,” he told them a little later. “That keeps me awake. I’m not supposed to worry — the scripture says don’t worry about anything — that’s hard for me not to worry. Of course, I live in it every day. So, I need your prayers, and we also certainly need any kind of financial support.”
In closing, he urged the group to think about former President Abraham Lincoln’s Gettysburg address and how “this nation under God might have a new birth of freedom, and that a government of the people, by the people for the people would not perish from the face of the earth.
“Why are people trying to get into this country — let’s use common sense — why are people trying to get into this country illegally or any other way?” he went on to ask. “Because it is freedom and liberty, folks. And what countries are they leaving? Socialism. I’m sorry, we may not be perfect, but we’re the best nation in the world and why don’t we just use common sense?
“If we’re as bad as the other side says we are, I will buy you a ticket to leave. I mean, just leave. You’ve got freedom here in America to leave. We don’t build laws to keep you in. We ought to have a wall to keep you out if you’re trying to get here illegally. That’s wrong, OK? So that’s my prayer.”
The “just leave” comments came one day before President Donald Trump tweeted similar sentiments — “IF YOU ARE NOT HAPPY HERE, YOU CAN LEAVE!” — in reference to Congresswoman Ocasio-Cortez and as well Democratic Representatives Ilhan Omar, of Minnesota, Rashida Tlaib of Michigan and Ayanna S. Pressley of Massachusetts.
He tweeted that the women should “go back” to the countries they came from. All of the women except Omar, a Somali refugee, were born in the United States.
The comments drew ire and concern from immigrant communities across the nation. The four congresswomen condemned his rhetoric and even members of the Republican Party criticized the president for what were widely perceived to be racist comments.
Newby’s similar comments would appear, at the least, to raise the issue of the prohibition on justices discussing pending litigation before the court. While the justice’s comments weren’t specific to any cases, the state Supreme Court is set to take up immigration matters this year.
One pending immigration matter before the state’s high court is Chavez v. Carmichael — habeas corpus petitions from two immigrants challenging the Mecklenburg County sheriff’s authority to hold them in jail after a state court ordered their release. They were held on an immigration detainer from Immigration and Customs Enforcement, so the case will review the issue of federal immigration enforcement by local law enforcement agencies.
Parties to that case could also request Newby’s recusal, but it’s unclear if it would be granted.