The Chris Hardee Case
A petition was filed in 2014 under Section 10 of the Democratic Party’s Plan of Organization seeking the removal of David Chris Hardee from the office of chair of the 3rd Congressional District due to his having moved from Manteo in Dare County in the 3rd Congressional District to Wilson, North Carolina, in Wilson County in the 13th Congressional District prior to his most recent re-election as chair of the 3rd Congressional District. Mr. Hardee asserted that he was domiciled in Dare County even though he resided in Wilson County where his wife was domiciled and voted. Mr. Hardee voted in Dare County by absentee ballot and had a driver’s license with a Dare County address, that of his Sister’s residence in Rodanthe, a property in which he possessed no financial interest.
As a result of having moved to Wilson, Mr. Hardee found himself in the 13th Congressional District. Several months prior to the hearing of this matter by the Council of Review, Mr. Hardee had approached Mr. Jess Goslen, chair of the 13th Congressional District and asked him whether or not he planned to seek another elected term as chair of the 13th Congressional District. Mr. Hardee said that should Mr. Goslen decide not to seek reelection as chair of the 13th Congressional District, it was Mr. Hardee’s intention to seek election in May of 2015 to the office of chair of the 13th Congressional District.
Petitioners seek Mr. Hardee’s removal as chair of the 3rd Congressional District due to his ineligibility by virtue of “residing” in the 13th Congressional District.
The state party’s Plan of Organization sets forth in Section 3.04 a requirement that District Officers be persons “residing within” the Congressional District for which they are elected. The term “residence” is defined in Section 11.10 as follows: “Residence shall be defined as voting residence in accordance with North Carolina law.”
North Carolina case law says that the husband and wife’s domicile are the same. Mr. Hardee’s wife is domiciled and votes in Wilson County. Mr. Hardee who lives in Wilson with his wife now claims that he is domiciled in Dare County and votes by absentee ballot there.
The petitioners argue that Mr. Hardee’s claim of “residence” in Dare County is fraudulent and that his voting there is fraudulent. The respondent argues that the language of Section 11.10 of the Plan of Organization protects him from any determination of his residence by the North Carolina Democratic Party; that the Party may not look into his fraudulent representations; that only the Dare County Board of Elections can look into his fraudulent voting activity and that such an investigation by the Dare County Board of Elections can only be initiated by a “resident” of Dare County.
The Council of Review, after hearing the evidence, decided that the Democratic Party of North Carolina did have the right to investigate Mr. Hardee’s fraudulent registration in Dare County and did have the right and duty to make a determination of whether or not Mr. Hardee was a resident of Dare County or Wilson County for purposes of complying with the requirements of the Democratic Party’s Plan of Organization.
The Council of Review concluded that Mr. Hardee was a resident of Wilson County for purposes of complying with the requirements of the Plan of Organization of the North Carolina Democratic Party and that he was not eligible to hold office in the 13th Congressional District.
Mr. Hardee served notice that he was appealing the decision of the Council of Review pursuant to the provisions of Section 10.02.
The Appellate Rules
Rules for Appeals from the Council of Review to the Executive Council
Adopted Saturday, April 25, 2015
By the Executive Council of the North Carolina Democratic Party
meeting in Charlotte, North Carolina
Prior to the meeting
Petitioner and Respondent have until five (5) days prior to the meeting to submit a written brief to the NCDP Chair, NCDP Secretary and Chair of the Council of Review via email, which can be no more than ten (10) pages. This is optional. There are no requirements in terms of format; the writing can be in any form. No additional documents may be submitted before or during the hearing.
Five (5) days prior to the hearing, all above referenced documents will be transmitted to the Executive Council along with these rules via email. A limited number of paper copies will also be made available at the Executive Council meeting.
During the meeting, beginning at the item on the Agenda designated for the Appeal:
The Petitioner(s) is given five minutes total for arguments.
The Respondent(s) is given five minutes total for arguments.
The Petitioner(s) take questions from the Executive Council for five minutes total.
The Respondent(s) take questions from the Executive Council for five minutes total.
The Executive Council debates for a maximum of thirty minutes. During this time, each member of the Executive Council is limited to no more than 2 minutes of debate.
Any member of the Executive Council may make a motion to:
a. Sustain the Decision of the Council of Review in its entirety; or
b. Reverse the Decision of the Council of Review in its entirety; or
c. Sustain the Decision of the Council of Review, in part and/or Reverse the decision of the Council of Review in part; or
d. Remand the case back to the Council of Review, with or without instruction; or
e. Take no action.
` All time limits listed for Petitioner(s) and Respondent(s) apply no matter how many Petitioner(s) or Respondent(s) there are. Each side may use as many speakers as they wish in the total time allowed, only the original Petitioners themselves or their attorney(s) may speak on their behalf.
Comments on the Adopted Rules
The rules for an appeal from a decision of the Council of Review to the Executive Council had been requested several times in the previous two years with the repeated staff response that none had been previously adopted. The Chair of the Council of Review received a copy of the proposed rules above only two days prior to the hearing and only then received it from the respondents. This was the first clue in answer to the question about whether the appeal was going to be heard de novo or based upon the record? It became apparent that the appeal was going to be based upon the record; although no record had been established. The original hearing was electronically recorded, but has not been transcribed.
At no time did anyone produce a Notice of Appeal with a listing of the alleged errors in the hearing before the Council of Review. There was NO RECORD ever put before the Executive Council to review. At no time was the Council of Review requested to produce a record for the Executive Council.
The hearing before the Council of Review was recorded and on the Monday following the Saturday when the hearing before the Council of Review was heard, the Council of Review requested the staff of the state party to produce a transcript of the entire proceedings for both of the parties and the Council of Review. The Executive Director of the N.C. Democratic Party said that a transcript would be forthcoming within a few days. As of May 16th, there is no transcript and no record to put before the Executive Council.
The rules adopted are “highhanded”, unfair, unreasonable, inadequate, poorly conceived, and prejudicial. Insufficient time is allowed to prepare briefs after the parties receive their copies of the record. The appellants and appellees are expected to prepare their briefs simultaneously. The rules confuse petitioners and respondents with appellants and appellees. In any given case on appeal the petitioners may be the appellants or the appellees. This is another example of a set of rules being designed just for a particular case, and where the authors are writing the rules to achieve their own desired decision on appeal.
The appellant’s brief should be preceded clearly by the requirement for the filing of a list of the alleged errors. The appellant’s brief should have a reasonable deadline after which it is promptly delivered to the appellees who are then provided a reasonable time to prepare their brief in response to the one they have received from the appellants. The rules that have been adopted by the Executive Council do not make adequate provision for this.
The time for the presentations by the parties is ridiculously inadequate. Thirty minutes each should be the absolute minimum.
Also, after the opening presentations, there should be provision for rebuttals. The adopted rules do not provide for the rebuttals.
The length of the briefs is unreasonably short. Thirty pages with attachments is more nearly what is required for fairness.
There is a restriction against providing any supplemental material. How outrageous can one get? The rules get progressively worse and worse as one reads through them! Of course not all members of the Council of Review and the Executive Council are attorneys. They need to be provided copies of the relevant statutory and case law material relevant to the issues before them. There may also be interpretive material that is relevant to a given case. Denying the distribution of this material is a sure give-away of what game the drafters of these rules are playing. The Council of Review believes that this judicial process should not be treated as a game.
Now one comes to the provisions for what motions can be made. These motions are NOT the correct ones. The first duty of the Executive Council is to take up each of the previously listed alleged errors and seek to answer the question as to whether or not the particular alleged error was made or not? If the answer to each question is “yes”, then the follow-up question to each is whether or not the error was prejudicial? If found to be prejudicial, then the follow-up question is was the prejudicial error consequential? Judicial proceedings are not required to be entirely error free, but rather they are expected to be fair.
The rules presented to the Executive Council for adoption April 25th were handed out to those assembled April 25th for a hearing to be held April 25th. They were formally adopted upon their presentation without analysis, almost immediately upon being distributed. The hearing on April 25th was begun in less than an hour after the adoption of the rules. Of course the hearing should not have been scheduled for the same day that the rules for holding the hearing were to be presented. The rules should be adopted well in advance of any hearing scheduled to be held pursuant thereto – 60 to 90 days at the very least.
Any hearing of a case on appeal held the same day as the adoption of the hearing rules should be set aside.
The appeal was scheduled to be heard at about 3 p.m. Due to several irregular activities on the part of the Chair of the Executive Council, including an ex parte meeting with the respondent in her office in the State Headquarters in Raleigh, North Carolina, a few days after the respondent had filed notice of the appeal, the Chair had been requested to recuse herself from all activities with regard to the appellant’s appeal. Nevertheless, the Chair presided throughout the proceedings.
The instant that an appeal is filed with the Executive Council, the State Party Chair becomes “the Chief Justice” of the appellate court and is ethically prohibited from ex parte communications with parties to the appeal.
Section 9.03 includes the provision that reads “The State Chair is hereby directed to issue such further and supplementary directives as may be necessary and proper to implement the decisions of the Council of Review.” Many Democrats had observed that the current Chair had not only neglected to issue the needed directives to implement the decision of the Council of Review, but had actively lobbied for the decision to be reversed. Indeed, the Executive Council, over which the State Chair presides, held an illegal conference telephone call meeting on February 25th [see Sections 0.01 and 0.04 of the Plan of Organization] at which time both Chris Hardee and Betsy Leech, both from the 3rd Congressional District, were on the telephone, answered the roll-call, and spoke as members of the Executive Council [See draft of minutes for meeting.] This meeting was conducted well after the Council of Review’s decision to bar Mr. Hardee from an office in the 3rd Congressional District. The Chair’s actively turning a blind eye to the Council’s decision speaks volumes about her disrespect for the Council of Review and the State Plan of Organization of the Democratic Party.
The next problem observed is that the membership of the Council of Review is fixed and should members of the Council be unable to attend a meeting of the Council, they CAN NOT send proxies. However, when members of the Executive Council are unable to attend a meeting, they are allowed to send proxies. On this occasion there were over a dozen proxies present.
When the State Plan of Organization was originally drafted, the Executive Council was composed of the chairs of the Congressional Districts, the officers of the State Party and three persons appointed by the State Chair who were designed to provide balance to regional, racial, and gender representation. Proxies were not allowed. In the years since the Plan was originally drafted, the Executive Council has been expanded in several ways, including membership for voting ex officio officials and appointments, and presidents of auxiliary organizations. All members are now allowed to authorize proxies.
The Executive Council as now composed is not an appropriate body to hear appeals from the Council of Review. This was dramatically demonstrated with respect to the appeal from the Hardee decision of the the Council of Review to the Executive Council. The appeal was treated as a political event rather than a judicial proceeding before an impartial tribunal.
The state chair solicited blank proxies from the members of the Executive Council and proceeded to fill in names of persons solicited for this particular appeal. Many of those selected as proxies had very little experience in the Democratic Party and were unfamiliar with the Plan of Organization.
In addition to the state chair’s not recusing herself from the proceedings, there were a number of other irregularities. Ryan Butler, who contends that he is now chair of the Council of Review, also contends that he is a member of the Executive Council and is therefor eligible to participate in an appeal before the Executive Council from a decision of the Council of Review. He participated in the appeal proceedings, spoke several times when the Executive Council was deliberating, and voted. This was all extremely unethical.
Andrew Iverson of Hickory, who represents the 10th Congressional District on the Council of Review, got a proxie for the Hardee Appeal Hearing before the Executive Council, attended, spoke, made a motion, and voted. What greater conflict of interest might a person have? This was extremely unethical. Guess who has jurisdiction to consider Andrew Iverson’s removal from the Council of Review for this unethical conduct – the Executive Council.
Willie Fleming, another member of the Council of Review, attended the Executive Council’s hearing to consider the appeal from the Council of Review in the Hardee matter as the alleged president of the Afro-American Caucus, although he no longer holds that position. He participated, spoke, and voted. This was extremely unethical.
The appellee was required to present its case on appeal prior to the appellants and then was not given an opportunity for any rebuttal after the appellant presented its case! The whole proceeding was a total fraud.
After the hearing before the Executive Council, the Council did not move into executive session, but rather proceeded to deliberate with observers present, including Mr. Hardee’s attorney, John D. Burns, who stood at the front of the room both during the Executive Council’s deliberations and while the concluding voting was taking place.
There is no formal opinion by the Executive Council and nothing signed by the decision-makers.
The proceeding before the Executive Council should be voided as corrupt and fraudulent.