Ex Parte time: As The (Berger) World Turns

It’s hard to watch – or discuss, for that matter — Republican power politics in Raleigh these days without bringing up lawyers or antics worthy of a Hollywood blockbuster script.  (Seriously.  If any of y’all can look past all the back-scratching and self-serving and spot some actual public service, let us know.)

Back in June, we first told you about some legal action emanating from Rockingham County – the home turf of The Phil Berger political machine.  Legal filings were filled with accusations ranging from defamation, casinos, and sketchy delivery of campaign cash.

In July, we learned about an attempt from Team Berger to get special Superior Court Judge Clayton Somers – former speaker Tim Moore’s former chief of staff and long-time best friend — assigned to hear the complaint emanating from Rockingham County. 

Since then, we’ve had an election, the holidays, and the start of a new silly season on Raleigh’s Jones Street.

Today, we got our grubby paws on a new filing by the plaintiffs from Rockingham County to get the appointment of Judge Somers shut down.    The defendants (Team Berger) were apparently trying to get the case declared as “exceptional” — thereby making it easier to bring Judge Somers onboard.

The main problem cited in this new filing by the plaintiffs was alleged “improper ex parte communication” between defendants’ attorney Craig Schauer and Judge Somers.  Here is what the American Bar Association says about ex parte communication. 

In layman’s terms, ex parte communication involves one side in a court case talking to a judge without counsel for the other side — or both parties themselves — being present.

Earlier this month, Schauer was involved in another controversy involving ex parte communication:

An attorney representing the Republican candidate in a tight race for the North Carolina Supreme Court went before a Wake County judge this week without notifying opposing counsel to seek an order blocking certification of the election. In some instances, under state and federal rules of procedure, such ex parte motions are improper.

The ex parte motion took place on Tuesday before Judge Cynthia Sturges, in a Wake County courtroom. Sturges, a registered Republican, at first granted the motion, which was filed by Craig Schauer, who represents Jefferson Griffin. Griffin, a North Carolina Court of Appeals judge, is the GOP candidate seeking to unseat Democrat Allison Riggs from her associate justice post on the state Supreme Court.

After initially granting the ex parte motion, Judge Sturges later withdrew it because “the Court became concerned that neither the Respondent nor Respondent’s attorneys received appropriate notice of the Motion, as required by Local Rules and Rule 65 of the Rules of Civil Procedure.”

Schauer did not immediately respond to WUNC’s request for comment on his ex parte motion.

Under North Carolina’s rules of civil procedure, which align with federal rules, a court may grant a temporary restraining order without prior or written notice to the adverse party only if the applicant shows they will suffer immediate and irreparable injury before opposing counsel can be heard on the matter, and that the applicant’s attorney has certified in writing “the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required.”

Schauer’s ex parte motion sought either a temporary restraining order, preliminary injunction, and/or a stay. It was filed as part of a lawsuit Griffin filed in Wake County Superior Court last month, asking the court to halt the certification process, and to recount the votes minus more than 60,000 ballots Griffin says should be invalidated due to alleged irregularities.

Griffin’s attorneys have argued he faced immediate and irreparable harm if certification — which, under state deadlines, was supposed to happen Friday — did not get blocked because it would render his election protests moot.

State attorneys ‘still in the dark’

Mary Carla Babb, a special deputy attorney general with the North Carolina Department of Justice, who represents the state elections board, declined comment on the matter in response to WUNC’s inquiry about the ex parte motion in Wake County court.

In an email, responding to WUNC’s question about any possible ethical issues around the ex parte motion, Paul Cox, the state elections board’s general counsel, declined comment because “we’re still in the dark on what exactly happened.”

Cox added that until Tuesday morning attorneys representing the elections board “were not aware of whatever had occurred in Wake County Superior Court” prior to Judge Sturges’ order rescinding her earlier TRO.

“Our attorney happened to be in the court Tuesday morning for a different election-related appeal, which is when he was made aware of the original order that was later rescinded,” Cox explained. […]