CHAPEL HILL, N.C. (WBTV) – The judge who approved the settlement between the UNC Board of Governors and the Sons of Confederate Veterans regarding the Silent Sam statue was in frequent contact with an attorney for the UNC BOG regarding the case before it was filed, text messages show.
WBTV obtained text messages from Judge Allen Baddour through a public records request.
The messages—which were produced as small, low-resolution screen shots more than a month after WBTV first requested the records—show Baddour began talking with Ripley Rand, a former US Attorney and law school classmate, who represented the UNC BOG in the deal.
In total, the messages show, Baddour and Rand had at least three phone conversations regarding Silent Sam and met at least twice in person in the days before the lawsuit was filed by SCV on Wednesday, November 27, the day before Thanksgiving. Court records show Baddour signed off on the settlement between SCV and the UNC BOG roughly an hour later.
Text messages point to flurry of activity
The exchange in the days leading up to the swift court action began with a text from Rand to Baddour on November 18.
“Good afternoon – do you have a few minutes to talk this afternoon or this evening abou the matter we talked about a while ago? Standing by – thank you, Sir,” Rand wrote.
Baddour responded that he was in the car and available to talk for the next few hours.
Following that text exchange and phone call, the text messages show, Baddour and Rand had a flurry of interactions.
The pair met in Hillsboro the following day, on November 19.
“Would 230 work? Old courthouse or I can come outside if needed,” Baddour asked Rand, who confirmed the time would work.
It’s not clear whether the pair met inside or outside the courthouse on the November 19. There is nothing in the text messages to indicate Baddour conducted any of his business with Rand regarding this case in chambers.
Baddour and Rand met a second time the next day, November 20, with Boyd Sturges III, the lawyer for the SCV, at the Research Triangle Park location of Rand’s law firm.
The text messages show Baddour and Rand spoke by phone for a third time on November 26, the day before the lawsuit was filed.
Finally, the text messages show, Baddour and Rand exchanged messages on the morning of November 27.
“We are standing by. Are you here?” Rand asked Baddour in a pair of messages.
“No. On the way. Ready?” Baddour responded.
“Apparently the ywill vote in around 10 minutes. We are going over now,” Rand responded in another pair of text messages, apparently referring to the UNC BOG, who voted to approve a settlement in a lawsuit that hadn’t yet been filed in court.
‘It’s just not the way the system normally works’
Baddour’s pre-suit activity combined with his official action in approving the settlement after the lawsuit was filed raised questions for Professor Charles Geyh, an expert in judicial ethics who teaches at the Indiana University School of Law.
“The trouble that I see in this is the judge is becoming involved before there is a case, Geyh said. “Ordinarily, the circumstances in which that could even happen just aren’t there.”
Geyh said a judge presiding over a case in which he had previously been involved could lead to questions about the judge’s impartiality.
Canon 1 of the North Carolina Code of Judicial Conduct calls for a judge to “participate in establishing, maintaining, and enforcing, and should personally observe, appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved.”
Canon 2(A) calls for a judge to “should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
“That falls into the category of a judge who is, you know, part of the factual backdrop of the case itself,” Geyh said of the behavior outlined in the text messages between Baddour and Rand.
“When judges find themselves in that situation—typically because they’re witnesses or they’re involved in the facts in some meaningful way—that disqualifies them from the proceeding and that would be the normal way a judge would respond to that, in the normal way a judge would disqualify and that didn’t happen here,” Geyh said.
Baddour declined, through a spokeswoman, to multiple requests for an interview for this story and did not issue a statement, even after being presented with specific questions regarding Canons 1 and 2(A) of the Code of Judicial Conduct.
But he did make brief remarks about having met with lawyers for both SCV and UNC BOG during a December 20 hearing in which an outside group sought to intervene in the lawsuit in an effort to stop the settlement from happening.
“In an effort to resolve these matters, I was approached by the lawyers in the case prior to the filing of the lawsuit,” Baddour said on the bench at the December 20 hearing. “We all know this occurs in cases of many types and I met with the lawyers in this case.”
But Geyh disagreed. “It just not the way the system normally works,” he said.
Rand forwarded a request for comment for this story to a spokesman for his client, the UNC BOG.
In response, UNC BOG spokesman Josh Ellis pointed to Baddour’s disclosure at the December 20 hearing as evidence nothing improper had taken place.
“These communications are in full compliance with the Rules of Professional Conduct (for attorneys) and the NC Code of Judicial Conduct,” Ellis said.
Geyh said that it is perfectly normal for judges to help mediate between to parties in a lawsuit but not before a lawsuit has actually been filed.
“The problem here is that there is a lot of behind the scenes stuff that makes me anxious in a system that, really, is ordinarily devoted to transparency,” he said.
Editor’s note: Both WBTV and Nick Ochsner, respectively, have been plaintiffs in public records lawsuits over which Judge Allen Baddour has presided.