An appeals court judge who contributed to Jefferson Griffin's legal fund still has not publicly said whether he will recuse himself from hearing the GOP candidate's case. Griffin has appealed a trial court's dismissal of his bid to invalidate thousands of ballots in his race for a seat on the North Carolina Supreme Court.
Like Griffin, Judge Tom Murry is a Republican and a member of the state Court of Appeals. In December, Murry's campaign committee contributed $5,000 to Griffin's legal expense fund.
Griffin set up the fund shortly after Election Day. And since then, Griffin has filed protests against more than 65,000 ballots over alleged irregularities in an effort to reverse his electoral loss to Democrat Allison Riggs. Riggs is the incumbent justice on the state Supreme Court who edged Griffin by 734 votes, as confirmed by two recounts.
The North Carolina State Board of Elections dismissed Griffin's protests, citing a lack of evidence of any actual voter ineligibility or issues with the validity of the challenged ballots. Last month, a Wake County Superior Court judge upheld that dismissal, which set up the appeal now pending before the state Court of Appeals.
Riggs, an intervening opposing party, has filed a motion seeking Murry's recusal in the matter.
Judge provided 'material aid' to Griffin
"Recognizing that this motion may be unnecessary because Judge Murry has already recused, Justice Riggs moves for his recusal out of an abundance of caution," Riggs' motion said.
When 瓜神app previously reported on Murry's contribution to Griffin, Murry did not respond to a request for comment on whether he might recuse himself, nor has he responded to a more recent inquiry sent this week through the media relations office of the North Carolina Administrative Office of the Courts.
"By contributing to that legal defense fund, Judge Murry鈥檚 campaign committee provided material aid to Judge Griffin and showed a preference for Judge Griffin in this specific dispute," Riggs' motion further argued.
Riggs also set up a legal expense fund; her contributors do not include any judges.
Riggs' attorneys tied her recusal request to a motion for an en banc hearing of Griffin's appeal. The matter typically would go before a three-judge appellate panel first. But Riggs has moved to have the case go directly to a hearing by the full Court of Appeals.
Since Griffin has recused himself from the matter, that would mean the appeal would be heard by 14 judges, including Murry, or 13 without Murry.
Riggs' motion for an en banc review argued that a hearing by the full court is needed because of the important issues at stake in the case, including public confidence and trust in elections.
Citing the state's appellate procedures rules, Riggs' motion said: "While en banc hearing 'is not favored,' it is appropriate when 'the case involves a question of exceptional importance that must be concisely stated.'"
Riggs' attorneys also argued that an en banc hearing would be more expeditious since the losing party in a hearing by a three-judge panel might seek an en banc appeal hearing anyway.
Griffin opposes both of Riggs' motions
As for Murry's recusal, Griffin argued in a motion that such a move would be premature because a three-judge panel has not been named yet.
"Although the motion targets Judge Murry," Griffin's reply brief said, "the identity of the panel to decide this case has not been announced, and there is currently no reason to believe that Judge Murry will be on the panel."
Moreover, Griffin's brief argued, Riggs' motion didn't explain "why it would be necessary for Judge Murry to recuse from voting on the motion to hear the appeal en banc, which is purely procedural."
And Griffin argued in his brief that it isn't clear whether Murry's contribution to the legal expense fund even constitutes the kind of donation prohibited under The North Carolina Code of Judicial Conduct.
Judge should recuse in cases involving 'personal bias'
Under provisions of the code, if a judge is a candidate for office, that judge may "endorse any individual seeking election to any office or conduct a joint campaign with and endorse other individuals seeking election to judicial office." But an endorsement, under the conduct code's definition, is not the same as a financial contribution.
The state's Judicial Standards Commission, which enforces the judges' code of conduct, issued a memorandum in 2022 that made it clear judges may not make financial contributions to other candidates or campaign committees. However, they may contribute to political parties or organizations.
Judge Murry's contribution to Griffin's legal expense fund falls into a gray area, according to Ellen Murphy, a professor who teaches legal ethics and professional responsibility at Wake Forest University's School of Law.
"Is it a campaign committee, or is it an organization?" Murphy asked. "I do not know of a clear-cut answer to that question, and I don't believe judicial standards has answered that question."
Murphy said the state's judicial conduct code is a lot clearer, however, on whether a judge in Murry's position should recuse himself.
Under the provisions of the code, a judge "should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
"In my opinion it is clear," Murphy said, "that, objectively, one's impartiality can be reasonably questioned in a case like this."
"It is about whether or not the public believes in the integrity and impartiality of the judiciary," she added. "Because if the public doesn't believe in it, then it is not functioning as it should, period."
Murphy, it must be noted, contributed to Allison Riggs' political campaign last year, making three individual donations from July to December totaling about $800.
In arguing against going directly to an en banc hearing, Griffin's brief also raised questions of what would happen if an even-numbered court 鈥� 14 judges, the full court minus Griffin 鈥� deadlocked.
"Would the superior court鈥檚 decision be automatically affirmed?" Griffin's brief asked. "Or would the case be referred back to a three-member panel for initial decision?"
"Regardless," Griffin's brief continued, "there鈥檚 no need to invite that kind of procedural chaos in a case of such public importance."
Of course, if Judge Murry recuses himself, the full court hearing the matter wouldn't be an even number, it would be 13 and, therefore, not subject to deadlock.
Whatever the outcome at the appeals court, the ultimate decision is likely to be appealed to the state Supreme Court, where it would be heard by six judges instead of seven since Riggs has recused herself. Again, a deadlock would mean reverting to a lower court's decision.
