I attended the hearing regarding the Motion to Recuse Judge Robert Ervin from adjudicating the case. The pleadings in that case were a puzzlement. There were blatant misstatements of fact in the Motion, and there were blatant misstatements of fact in Ms. Norman’s affidavit. In my limited experience with expensive, “Big City” lawyers, one gets what one pays for – in other words – top notch attorneys and top notch product. In this case, however, it appeared to me that the BOE was relying on a firm that couldn’t even verify verifiable facts, and had no problem submitting the Motion pleadings and Ms. Norman’s inaccurate affidavit as evidence.
Anyway, Mr. Schwartz began arguing the motion by telling the judge that this case was more contentious than any other that he had ever been involved. Mr. Schwartz should know – he has been involved in many controversial cases. Here is one – this is from August 28, 2008 “News Argus” regarding a suit by the Duplin County BOE against the Duplin County Commissioners:
Schwartz asked potential jurors if they would be bothered by the school board asking for “tens of millions of dollars” in settlement from the county. They also were questioned as to whether they had been asked to sign any petitions. Several petitions are circulating in the county including ones asking for a state investigation of the school board and for the job of schools Supt. Dr. Wiley Doby.
And this from Atlanta Journal Constitution March, 2008 regarding Clayton County, Ga.:
But I digress.Police had to intervene twice Saturday to control an unruly Clayton school board meeting where the board unanimously approved a contract granting Thompson a $285,000 annual salary and $2,000 monthly housing stipend. But on Saturday, Thompson's attorney, Richard Schwartz, said the candidate did not withdraw, but just stopped talking to Clayton. School district attorney Hopson also said Thompson did not withdraw.
Mr. Schwartz went on. And on. And on. He told the judge he had litigated these kinds of matters all over the state. He read aloud in court an article written in the Morganton News Herald about a rally for David Burleson held in March. He submitted comments by bloggers who criticized the board majority’s stance on issues. He referred to Judge Ervin’s former law firm and their pro bono representation of tax payers who had filed suit to enjoin the termination of former Superintendent Burleson. He told the judge that at the June 30th board meeting, in the presence of 250 people, some members of the public had destroyed some board member’s name plates. (I was at that board meeting. I did not see any name plates destroyed. I did see that someone had moved them around to different seats – but no destruction. Apparently he means a different board meeting?) Over and over again Schwartz complained that Judge Ervin had not voluntarily recused himself from the case, and that failure had put the BOE’s case in jeopardy – because they had to reveal their strategy at this hearing. Then he finally started to talk about matters of law.
And that went on and on and on. (by that time I had become a zombie – “no kill like overkill” was written several times on my notes.)
Anyhow, a couple hours later I noticed that Larry McMahon, attorney for the Board of Commissioners, was going to begin his argument. Mr. McMahon began his rebuttal by citing the standards for recusal. Simply put, the Court must find 1) evidence that objectively shows that the court could not be impartial and 2) does the evidence show that Judge Ervin would be biased? McMahon easily defeated the “evidence” provided by the BOE. It did not help the BOE that so much of the evidence presented by way of Ms. Norman’s affidavit was false, and that some due diligence by the BOE attorneys could have avoided its presentation. Mr. McMahon concluded that the BOE had presented no evidence that Judge Ervin would be shaped by the publicity or any other matter regarding the public controversy.
Judge F. Donald Bridges who heard the case quickly picked up on the “irregularities” in the affidavit. (Mr. Schwartz indicated that those irregularities were by no means intentional, but were an oversight.)
Judge Bridges made several points in his ruling:
In an answer to Mr. Schwartz opinion that Judge Ervin had acted irresponsibly by forcing this hearing, Judge Bridges explained that Judge Ervin did what he was supposed to do. He referred the case to another judge to make a determination.
Judge Bridges hoped that the folks in Burke realized how fortunate they are to have Judge Ervin.
Judge Bridges opined that his order would be detrimental to the school students of Burke County.
Judge Bridges said that parties should not be given liberty to judge-shop by unfounded allegations.
Judge Bridges had no doubt that Judge Ervin would be impartial in this case, but that to avoid even the hint of impropriety, he ordered that the Judge Ervin would be recused from the case and that the case would be heard by such Judge as determined by the Chief Justice of the NC Supreme Court.
Which, as Fate would have it, happens to be Judge F. Donald Bridges.
