Elections

‘The West is wilder than it was.’ Contentious Court of Appeals primary draws concern

NC Court of Appeal Chief Judge Donna Stroud, left, and District Court Judge Beth Freshwater Smith

On Dec. 6, District Court Judge Beth Freshwater Smith filed paperwork that officially made her a candidate for the North Carolina Court of Appeals. Soon after, she posted photos of the event on Facebook.

In one image, she stands next to Phil Berger Jr. A justice on the state’s highest court and the son of its Senate leader, he flashes a thumbs up for the camera. Sen. Jim Perry, the state Senate’s majority whip, posted a comment early the next morning: “Two good eggs!

With support from several of North Carolina’s most powerful legislators, Freshwater Smith is running against Donna Stroud, the current chief judge of the Court of Appeals, in a Republican primary. The race has been marked by aggressive political tactics, flows of dark money and an unusual – and some say problematic – degree of involvement from sitting Supreme Court justices.

One of those justices, Berger, has appeared as a proxy for Freshwater Smith, contributed campaign funds to a PAC that attacked her opponent and suggested in texts and social media messages that the incumbent is insufficiently loyal to the GOP.

In addition to the Republican lawmakers who are some of her biggest political donors, Freshwater Smith has outside PAC support that’s funded indirectly by the Republican State Leadership Committee, a national group focused on increasing GOP power in state legislatures.

North Carolina judges are now elected in partisan elections, but that has not always been the case. Some legal observers wonder if the contentious race is a sign that the gushing donations and heightened partisanship that have come to characterize state high court elections across the country will seep further into this state’s judicial system.

Court elections have become more visible with the increased use of social media and an influx of political interest and money, said Jim Drennan, a professor at the University of North Carolina’s School of Government who specializes in the judiciary.

“The West is wilder than it was,” Drennan said.

Bob Orr, a former Supreme Court justice and a former Republican, called the Stroud-Freshwater Smith primary “really highly unusual” because long-serving judges, particularly those in leadership positions, aren’t often challenged.

Stroud said that legislators’ significant involvement in the race threatens the separation of powers and checks and balances built in the American government system.

“The courts regularly, of course, have to review actions, statutes that the legislature has done. We have to be fair and impartial in reviewing what the Legislature has done—that is our job under the Constitution,” she said.

Freshwater Smith sees it differently.

“The legislature is the branch of government that is to make law, and the judiciary has to ensure that the laws are carried out, and I think that’s why both areas are, you know, interested in each other,” she said.

Associate Justice Phil Berger Jr. listens during oral arguments at the Supreme Court of North Carolina in Raleigh, N.C., Monday, May 9, 2022. Ethan Hyman [email protected]


DEFINING CONSERVATIVE JUSTICE

On the campaign trail, Freshwater Smith and Stroud describe themselves in similar ways: experienced and conservative.

Stroud cited arch-conservative former U.S. Sen. Jesse Helms as her political hero when she first ran for judicial office in 2004. She served as a district court judge before being elected to the Court of Appeals in 2006 and was later reelected without opposition.

Stroud ascended to chief judge amid a series of recounts in a close race between former Chief Justice Cheri Beasley, now a Democratic candidate for U.S. Senate, and current Chief Justice Paul Newby, a Republican. Beasley appointed Stroud in the final days of 2020, and Newby affirmed the choice after his election.

Though Stroud has been a lifelong registered Republican, she hasn’t always silently assented to GOP legislators’ proposals for changes to the courts. For instance, she opposed a 2017 proposal to shrink the number of Court of Appeals judges from 15 to 12, The News & Observer previously reported.

Freshwater Smith, a longtime prosecutor who has served as a district court judge since 2016 in Wilson, Nash and Edgecombe counties, calls herself a Christian conservative. She changed her political registration from Democrat to Republican in March 2015.

When asked what the term conservative means in the context of the Court of Appeals, Freshwater Smith said, “That I follow the Constitution.”

Court of Appeals judges determine whether trial court judges have made legal errors. Their decisions are subject to review by the N.C. Supreme Court, which is charged with final interpretation of the state constitution. The U.S. Supreme Court is the final arbiter of disputes involving the federal Constitution.

Freshwater Smith’s campaign has raised roughly twice as much money as Stroud’s, about $68,000 so far, state records show.

Jodie Berger, wife of the Supreme Court justice; John Bell, the state House majority leader; and George Cleveland, a longtime Republican legislator from Onslow County were among Freshwater Smith’s earliest donors.

Stroud has received donations from several prominent lawyers and businessmen, including former Supreme Court justices Bob Edmunds and Bob Hunter and developer John Kane, but no members of the General Assembly’s Republican leadership.

Chief Justice Paul Newby asks a question during oral arguments at the Supreme Court of North Carolina in Raleigh, N.C., Monday, May 9, 2022. Ethan Hyman [email protected]


JUSTICES’ INVOLVEMENT

Freshwater Smith has acknowledged in interviews that she was recruited to run by judicial and legislative leaders, but has declined to name them.

“I think that’s obvious by the folks that have endorsed me,” she told The News & Observer in an interview Thursday.

She never would have launched her current campaign, Freshwater Smith said, if Supreme Court Chief Justice Paul Newby opposed it, she said.

Newby is prohibited by the rules that govern the behavior of North Carolina judges from overtly declaring his support. Only “judicial candidates” may endorse other candidates, and Newby will hit the mandatory retirement age for North Carolina judges before his current term expires, so he cannot be considered a judicial candidate.

But a photograph of the chief justice standing next to Freshwater Smith is featured prominently in an ad posted on her campaign Facebook page. Newby did not respond to a request for comment.

Berger appears to have deeper involvement in Freshwater Smith’s campaign. In addition to offering a formal endorsement, he has given at least one speech at a political event as her proxy.

Berger’s current term on the Supreme Court expires on Jan. 1, 2029. Technically, he is a judicial candidate, having already declared that he intends to run again, but there has been debate in the legal community about whether it’s proper for judges to function as perpetual candidates, several people of both political parties said in interviews.

Berger’s campaign has also contributed to a political action committee that funded an ad attacking Stroud.

Records show that $4,000 flowed from Berger’s committee to NC for Justice PAC on April 26, less than a week after the PAC was formed. The ad posted on the group’s Facebook page calls Stroud a RINO, short for Republican in name only, and “The Liberal Choice for the Court of Appeals.”

In a now-deleted Facebook comment responding to the ad, Ray Daly, a Moore County home builder, wrote, “Thanks Justice Berger, I’ll send it out!”

Daly declined to comment when reached by phone.

Berger did not respond to a phone call, text messages or emails seeking comment.

LOYALTY ENFORCEMENT?

The decision by powerful Republicans to try to unseat Stroud stems, at least in part, from who was appointed the clerk of the Court of Appeals, a plum administrator job, according to screenshots of private conversations among Republicans.

Eugene Soar, a longtime court employee who changed his registration to unaffiliated from Democrat in October 2009, was awarded the job last year. Some Republicans were upset that a majority of Court of Appeals judges voted to name a clerk who was not a Republican when there are twice the number of Republican judges on the court as Democrats.

In Facebook messages that were circulated among attorneys, Berger told Republican activists that Stroud “whipped the votes and shut out qualified Republican candidates. Some who have worked for years in GOP politics.” The messages say an attorney who clerked for Berger and two other Court of Appeals judges was among those passed over.

Freshwater Smith’s campaign declared in a mailer that she “Will Never Appoint Liberals to positions of power.” The word “never” is underlined.

In an interview, Freshwater Smith acknowledged that judges on the Court of Appeals do not have the power to appoint. She did not directly answer a question about why that language was featured in her ad.

TRUE CONSERVATIVE JUDGES

A political action committee called True Conservative Judges is also pouring money with hard-to-source origins into the Stroud-Freshwater Smith primary race as well as two other Republican judicial primaries.

The group has received at least $590,000 from the Good Government Coalition, a nonprofit based in a suburb of Washington, D.C., with strong ties to the Republican State Leadership Committee.

True Conservative Judges has so far piped at least $105,000 to The Differentiators, the firm run by Jim Blaine, the elder Berger’s former chief of staff. Both Blaine and Larry Shaheen, the PAC’s treasurer, declined to comment on the record.

About $13,000 of the PAC’s money was spent on direct mail supporting Freshwater Smith, the most recent campaign finance reports show. A similar amount went to support Michael Stading, a candidate for another seat on the Court of Appeals, and about $78,000 went to bolster the candidacy of Trey Allen, who is aiming for a Supreme Court seat.

Justice Berger, as well as some Republican Court of Appeals judges and legislators, has posted a sample ballot with the names of those three candidates circled in red on social media.

Freshwater Smith said that she did not know about the social media activity or PACs involved in her race.

This story was originally published May 14, 2022 9:00 AM.

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