Updated: Ervin off case, chief justice will choose judge

Judge Donald Bridges on Wednesday made a decision he believes will benefit only one person and be "a detriment" to "every citizen and school student in Burke County."

Bridges ordered Judge Robert C. Ervin of Morganton recused -- meaning he will not hear the case -- as presiding judge in the Burke County Board of Education's lawsuit against the Burke County Board of Commissioners.

The ruling was a victory for the school board, some of whose members felt "uncomfortable" and "unusually nervous" about Ervin's ability to be fair and unbiased.

Bridges, however, said he had no doubt about Ervin's ability to rule impartially. He praised Ervin's skill and integrity as a judge. He said knowledgeable people in 99 other North Carolina counties would gladly trade their Superior Court judge for Ervin if he was available.

Bridges predicted the next judge who takes the case will not exceed Ervin's ability to conduct a fair, impartial trial.

"However, in this particular case, there are unprecedented levels of outrage and animosity," Bridges said. He said public comments made by both sides "raise concerns to me ... over the perception of the parties and the public ... regardless of the impartiality of the judge."

"The stakes are high. The level of attention is enormous," Bridges said. "The easier path is to have the case heard by a judge from outside the county." He said that will avoid even "a hint of impropriety."

As a result of Bridges' decision, N.C. Supreme Court Chief Justice Sarah Parker will appoint a Superior Court judge to hear the case, probably in a special Superior Court session. Bridges' decision also increases the likelihood that the trial will occur in another county.

No lawyer for either side could or would predict when and where the trial will begin. The school board based one of its two lawsuits on what is described as "a peculiar law" in the N.C. General Statutes — outside the bounds of regular procedure, the lawyers say.

However, the hearing in Bridges' Lincolnton courtroom provided some previews of how the school board will proceed in its case. Attorney Richard Schwartz said, more than once, "This is patently unfair for me ... to have to reveal strategy." He said he disclosed some plans for motions and questions on which Ervin might have had to rule, because they illustrated why people might perceive bias or unfair treatment.

For example, Schwartz pointed out, Ervin admitting recusing himself from ruling on legal actions concerning the school board's efforts to terminate former Superintendent David Burleson's contract. Some school board members believe the county commissioners withheld funds from the schools' appropriation in retaliation for the school board's decision about Burleson. Schwartz asked Bridges how it would be perceived if Ervin now ruled on issues involving Burleson.

The county commissioners say they exercised their fiduciary responsibility to taxpayers when they withheld $364,000 from the school district's requested appropriation for administrative functions and policy, including legal fees and settlements. They have filed a motion demanding documents and financial statements related to the buyout of Burleson's contract.

Schwartz revealed that the school board not only will resist that request, it also will try to prevent any evidence concerning Burleson from being entered in the trial.

Schwartz said he'll also seek a protective order barring discussion of the legal fees associated with the Burleson controversy and with other litigation against the school board. He said the county has tried to make legal fees an issue, but the school board will contend it's not relevant and prejudicial.

(Disclosure: The News Herald on Aug. 11 requested a report on the schools' disbursements for legal fees and settlements and copies of bills submitted by Schwartz and Shaw. The newspaper's request has no connection with the pending lawsuits.)

The school board is pressing two cases against the county commissioners. In one, the school board asks the court to decide how much money the county should provide for schools and to order the county to pay it.

The other case concerns the 2005 consent decree modified and affirmed by Judge Ervin in 2008. The decree ordered the county commissioners to determine a minimum percentage of ad valorem (property) taxes for the schools.

The county contends, in a response filed Aug. 14, that the order is "void and unenforceable," in part because the N.C. Constitution does not give the court "authority or subject-matter jurisdiction" to direct future appropriations. The county says that's "a purely governmental and legislative function."
Schwartz said the schools' evidence will show the commissioners only decided the order was null and void after they realized that otherwise they'd be in contempt.

Though Schwartz talked for about 85 minutes, the two-hour-long hearing wasn't one-sided. The county commissioners' special counsel, Larry McMahon Jr., got in some licks, too.

McMahon didn't oppose the motion for Ervin's recusal so much as he disagreed with Schwartz's contentions. McMahon said Schwartz and the school board presented no objective evidence that Ervin was or would be biased or unfair. The discussion about Burleson is irrelevant, McMahon said, because "nothing that happens in these cases could bring him back as superintendent."

McMahon sharply challenged the accuracy of an affidavit from school board Chair Tracy Norman about her concerns over Ervin's impartiality. Schwartz gave McMahon the affidavit on Monday afternoon, minutes before the first hearing before Bridges. Schwartz filed a revised affidavit late Tuesday.

The original affidavit, McMahon pointed out, had several errors of fact, such as saying Ervin's cousin, John Ervin Jr., lives next door to the judge when, in fact, he lives miles away. The affidavit also said a sign next door to Judge Ervin's house called on several school board members to resign. The sign actually was several doors away.

Schwartz apologized for the mistakes and said they were unintentional, but McMahon succeeded in having the original affidavit entered as evidence in Bridges' court.