Debate over judge delays school-county lawsuit

Before you can have a trial, you need a judge.

The Burke County Board of Education and the Burke County Board of Commissioners still don't have one for the school board's upcoming lawsuit against the commissioners.

And they won't know, for a few days at least, which judge will hear the case.

Judge Robert Ervin is presiding now in Burke County Superior Court. The school board's lawsuit was scheduled to begin in his courtroom at 10 a.m. Monday.

After an unsuccessful attempt Thursday to persuade Ervin to recuse himself — to voluntarily take himself off the case — the school board's attorneys filed a motion Friday asking another judge to consider the request.

Both sides met on Monday afternoon in Lincolnton where Superior Court Judge Donald Bridges heard the first arguments from each group's lawyers.

The hearing — originally scheduled for 3 p.m., but delayed until 4 p.m. while Bridges handled an unrelated criminal trial — quickly ground to a halt when the commissioners' attorney, Larry McMahon Jr., objected to going ahead before he had time to review an affidavit he received minutes earlier from the school board's attorney, Richard Schwartz.

Bridges agreed to delay the hearing until 9:30 a.m. Wednesday.

In his motion, Schwartz said Ervin's relationship to McMahon's law firm "through his family ties, prior employment with the firm and ownership interests, creates the appearance of impropriety." Schwartz's motion said he and his clients are "uncomfortable" and, he told Bridges, "unusually anxious" about having Ervin preside over the case.

Ervin himself addressed the motion's allegations in a statement of disclosure he filed Monday morning with the Burke County Clerk of Court's office.

Ervin acknowledged that he practiced law from 1988 to 2003 with the firm whose partners included John W. Ervin Jr. (the son of Sen. Sam Ervin's brother; Judge Ervin himself is Sen. Ervin's grandson) and McMahon. Judge Ervin said he resigned from the firm when he became a Superior Court judge in 2003.

Ervin said he once had a financial interest in the partnership that owns Byrd Byrd Ervin, McMahon and Denton's law offices, but the judge said his interest was transferred to a trust for his children in 2005 and he has no connection with it.

Ervin's mother is Betty Ervin, a retired Freedom High School teacher who spoke and wrote about the school board in recent months. Ervin also said one of his daughters is a friend and teammate of former Superintendent David Burleson's daughter.

Ervin acknowledged that he knows Burleson and his wife and served on various boards with Burleson. Because of those interactions, Ervin wrote in his statement, he voluntarily recused himself from hearing lawsuits involving Burleson's employment with the school system.

Ervin said he regularly reads The News Herald and Charlotte Observer, but not their letters to the editor or comments on The News Herald's Web site, Morganton.com. Ervin said he had not written letters to the editor or Web comments related to the controversies involving the school board.

Ervin said he "somehow" got on the mailing list of the "SOS" group. He wasn't certain whether the initials stand for Save or Support Our Schools. "I have never attended an 'SOS' meeting," he continued. "I have not contributed money to that organization and have not posted any signs on my property concerning any of the various school board controversies."

Ervin said he attended part of a courthouse square rally for Burleson when he took his 11-year-old daughter there as a "civics lesson" in public participation. After she heard two or three speakers, Ervin wrote, she said "she had heard enough from the 'Blabiticians,' as she is prone to describe them. At that point, we left...."

The last-minute affidavit Schwartz gave McMahon on Monday afternoon included an answer to Ervin's statement and, reportedly, a statement from school Board Chair Tracy Norman. Schwartz said the affidavit will be filed today with the Burke County Clerk of Court.

The clerk's office has a growing mass of paperwork associated with the case. Along with the motion for Ervin to recuse himself, Schwartz and Shaw and local attorney, Jon Jones, filed several motions Friday. One is nearly 2 inches thick with numerous exhibits of newspaper stories and readers' letters, printouts of Morganton.com comments, e-mails and other documentary evidence for the school board's motion to transfer the trial to another county or, alternately, to seat a jury of out-of-county residents.

The county commissioners' lawyers filed their own motion to dismiss the school board's case or, as an alternative, to limit it to discussion of the so-called 6900 fund — money the commissioners withheld from the schools' 2009-10 appropriation until the school board requests and justifies spending the funds.