Newby Becomes State’s 30th Chief Justice
Paul Newby was sworn in as Chief Justice of the Supreme Court of North Carolina on Jan. 1, 2021. A native of Asheboro, he is a graduate of Duke University (B.A.) and the University of North Carolina School of Law (J.D.). Chief Justice Newby began his legal career in private practice in Asheville with Van Winkle, Buck, Wall, Starnes, and Davis before serving as Vice President and General Counsel of Cannon Mills Realty and Development Corporation in Kannapolis. From 1985-2004, he served as an Assistant United States Attorney for the Eastern District of North Carolina. He was elected to the Supreme Court in 2004, re-elected in 2012, and elected to serve as the state’s 30th chief justice in 2020. He has been a member of the North Carolina Bar Association throughout his career and served as a vice president on the NCBA Board of Governors, and director on the North Carolina Bar Foundation Board of Directors, in 2008-09. He received the NCBA Citizen Lawyer Award in 2011 and the Constitutional Rights and Responsibilities Section Award in 2012. Chief Justice Newby participated in the following Q&A interview on Jan. 28.
Congratulations on your election as the 30th Chief Justice of the Supreme Court of North Carolina. What was your initial reaction to winning the election and assuming leadership of the state’s highest court and its judicial system?
It was an interesting personal spiritual journey, from election night until there was a concession. My first reaction was, “Thank you, Lord!” As a person of faith, I understand that outcomes like this are in God’s hands. My wonderful wife, Macon, and I truly had a special time of prayer asking that God’s will be done. As I told former Chief Justice Beasley when she was appointed, I believed it was God’s will for her to have that position at that time, and that in all candor I hoped that I was chief justice on January 1 of 2021. My reaction to the outcome was being thankful for the integrity of the process and that it was over. Having served on this court for 16 years and having observed various election disputes, my opponent was well within her rights to pursue all the different avenues that were available to her with the count, recount, and hand count. I was grateful that she decided after the hand recount that it was best for the branch not to go any further. She was very gracious in her concession at that point.
Once the outcome hit me—I was so humbled that I was to be chief justice. I have always told my new law clerks that every day working at the Supreme Court should be a “wow!” moment. All of us working at the Supreme Court have a unique opportunity to serve the state in our roles. Certainly, as I come to the Supreme Court building every day, I still have those moments of, “Wow, I can’t believe this happened!”
Probably about 1964 was the first time I had been to Raleigh, the first time I had seen the governmental buildings. Mom was a schoolteacher and Dad was a linotype operator—no lawyers in the family. I met my first lawyer as a Boy Scout working my way toward Eagle. Judge Ed Washington was my merit badge counselor. He encouraged me to think about law school. He saw how much I enjoyed studying our founding documents, the history that surrounds them, and the ideals that are imbedded in them. In 2004, I marveled that I had the opportunity to be on the court. Now to be the Chief Justice of the Supreme Court of North Carolina, I am just so humbled. Because the judicial branch has more constitutional officers than the other two branches combined, its leadership is particularly challenging. It must be done by inspiration and encouragement. It is an opportunity for me to try to help the stakeholders in the judicial branch to remember our high calling, which is to do equal justice under the law and to appreciate that the law is about making, as Martin Luther King, Jr. said, the promissory note of the ideals of our founding documents come true. We must ensure that we are honoring those promises so that everyone in our state has the opportunities of life, liberty, and the pursuit of happiness. The leadership challenge of being chief justice is a daunting experience. My soon to be 97-year-old mother certainly is very, very proud of her younger son assuming that role. Where else can something like this happen? When someone from the small town of Jamestown has the opportunity to lead the judicial branch. Assuming the role of chief justice is very humbling and exciting.
Continuing along those lines, what are some of the key duties that the position entails beyond that of presiding over the Supreme Court?
I have practiced law 40 years, been on the court 16 years, and had no idea how expansive the role of chief justice is. Sorry, but I’m a “newbie” at this. I am just now learning all the different responsibilities, a wide variety of commissions, the different appointments that need to be made, trying to help the various executive directors of the commissions come up with a vision of where we should go in the next six months, the next year. The chief justice must lead a branch comprised of 6,400 people with many constitutional officers—superior court judges, district court judges, clerks, DAs, and also elected sheriffs who supply the security for our courthouses for which we’re all grateful. I need to try to encourage and inspire all of these folks, particularly in this very challenging time of the pandemic.
My polar star has been Article 1, Section 18 of our state constitution, which is the Open Court provision. At the very end it says, “justice shall be administered without favor, denial, or delay.” We certainly want to examine all aspects of this constitutional mandate. We need to ask, Is our justice system truly blind? Lady Justice is a symbol—she’s blindfolded—and she can’t see who comes before her: rich, poor, powerful, not powerful. Everybody is treated the same. Structurally, do we do that? We have to evaluate that issue.
But then the next question is perception. Even if we are a system that follows the rule of law—and honestly over my last 16 years as a justice and 40 years in the system, my perception is that we are a system comprised of incredible, conscientious, hard-working individuals who truly seek equal justice for everybody—we still need to deal with perception. Public trust and confidence is one of the cornerstones of our system, and certainly we have to address the perception about the fairness of our judicial system.
Article 1, Section 19, our law of the land clause, provides for due process and equal protection. With our constitution—our social contract—as our polar star, what should we do? Certainly, I inherited a lot of emergency orders that I immediately needed to evaluate as to whether all were consistent with the constitutional provisions. Let me say Chief Justice Beasley did a really good job of coming into the position and not long thereafter being confronted with COVID, the pandemic, and trying to address it. But I knew my approach would be somewhat different because of the way that I read Article 1, Section 18. So, the first thing I thought about was what are the impediments of our meeting the constitutional mandate; I did not want centralized Raleigh telling the local stakeholders what was best for them. I fully trust our judicial stakeholders across the state to make decisions that are prudent for each courthouse. The first thing I did was call senior resident superior court judges, other superior court judges, district court judges, clerks, magistrates, and sheriffs trying to get their perception of things. I communicated that I was going to let local officials make decisions about opening courthouses and what was safe and prudent for each.
As part of that, we informally rolled back some of the rotation of superior court judges because each courthouse has its own individual COVID protocols and it was unfair to bring a judge in from somewhere else who was unfamiliar with that courthouse and what the protocols needed to be. I worked with [AOC Assistant Director] David Hoke to implement that. But it also struck me that since we have a constitutional mandate of open courts, I should ask the governor to consider courthouse personnel as essential frontline workers. Given the layout of so many of our courthouses, we were potentially exposing some of our employees to situations that could be unhealthy. Fortunately, the governor has agreed. We had some very good conversations and I was very grateful that he decided that it was in fact something that needed to be done.
Now, we’re waiting for the availability of the vaccine. I had a lengthy virtual meeting with the judicial branch COVID Task Force recently, a task force that Chief Justice Beasley set up, and they are doing a great job. We discussed what practices seem to work, what the challenges are, and how we go forward with jury trials in superior court. We also considered the challenges from the court management standpoint. My goals are to communicate and collaborate. As I tell everybody, I sure don’t have the corner on the market of good ideas.
The role of chief justice as head of the judicial branch is much like the governor as head of the executive branch. These are just some of the responsibilities that demonstrate the significance of the position.
As one who was already the senior member of the Court, how do you feel your experience will serve you as you take on this tremendous responsibility?
With his wife, Macon, by his side, Chief Justice Paul Newby is sworn in by Judge Andrew Heath shortly after midnight on Jan. 1.
Our life experiences prepare us to better serve. Forty-plus years in the practice of law—I was a transactional attorney for five years, a litigator for over 19 years, and have served over 16 years on this court—all of these experiences will help me as chief justice. After 16 years, I understand what the Supreme Court does and why it does the things that it does in the manner that it does them. Also, I have friends in every area of the practice, having been active in the Bar Association through the years and having developed numerous relationships. I can pick up the phone and call an expert in every area of the practice and get their input and their ideas. The Bar Association so emphasizes the importance of relationships. In North Carolina, in spite of the fact that we have more than 30,000 licensed attorneys, we still do so much through relationships. Being able to get the input that I need from very experienced, well-recognized, admired leaders of the bar is very important. All of those things will help me as I seek to perform the role of chief justice.
Thinking back to your initial election to the Supreme Court, what was your impetus for seeking to serve on the state’s highest court, and what compelled you further to run for chief justice?
I am a student of history. My mom and dad sacrificed greatly to be sure that every vacation that my brother and I took had a historical theme to help us appreciate the opportunities we had being born in this country. With that as a backdrop, in 1976, I worked for Chief Justice Warren Burger at the U.S. Supreme Court. It was the bicentennial of the Declaration of Independence—my children are shocked to learn that I wasn’t actually alive in 1776. Being in Washington for that summer program working for the chief justice, writing speeches and articles about the Declaration of Independence, it certainly gave me a great appreciation for the American experiment—that our rights don’t come from the government. Our rights come from God and the government is there to protect those fundamental rights and freedoms.
In 2004, Justice Bob Orr indicated that he was going to resign from this court and there was an open seat. Given my broad transactional and litigation experience, I had friends who encouraged me to think about running for the Supreme Court. I can remember talking to my wife, Macon, whom I met in law school, and seeking her counsel. She actually clerked for Chief Judge Naomi Morris at the Court of Appeals. Generally speaking, I wanted to be a justice who would clearly state the law, would make it easy for a practitioner, when they are trying to counsel a client, to be able to say, “This is what the law is.” In my view, that’s the job of this court, the jurisprudential court, to ensure that practitioners and others can know what the law is. The law is for everybody—not just for judges. When you read my opinions over the last 16 years, you’ll discover that I try to address the merits with a clear statement of what the law is.
Also, being a student of history, separation of powers is important to me. In 2004, I can remember talking about the importance of judicial self-restraint. Under our system, the judiciary has the responsibility to protect fundamental rights. The first reported case establishing judicial review is from North Carolina, 1 N.C. 5, Bayard v. Singleton (1787). There the court said the judiciary will state the meaning of the fundamental social contract that we call our constitution. If the legislature violates the constitution, we will declare the act unconstitutional. When we think of the courage of the three judges who were appointed by the General Assembly to serve at their pleasure, for them to tell the General Assembly, “You have violated the social contract. You can’t do what you just did.” That was a very brave thing for them to do.
In addition to my love of history, I also am fascinated by political philosophy. I was a public policy major at Duke, and I really marveled at reading the Federalist Papers and other early writings and seeing how the founders tried to get the right balance regarding governmental power that doesn’t intrude on fundamental rights and freedoms. Additionally, I was the attorney who directed the undercover sting operation that got back North Carolina’s original copy of the Bill of Rights, stolen in 1865 by a Union soldier and recovered in 2003. Again, I delved into history. All of these considerations combined to encourage me to run for the open seat that Bob Orr vacated in 2004.
With regard to running for chief justice, it was not a consideration until Chief Justice Martin resigned—I tease him, he’s got a great singing voice, but really, do you have to resign here to be Dean Martin? I thought about the history and tradition of the court where the senior associate is generally the one to be chief justice. I was very up front with my colleagues about my having applied to Governor Cooper, and of course he chose to go his own way, which the governor has the right to do. I was very up front about my running for chief justice. The reason is, again, I have a particular view of our constitutional mandate with regard to our judicial branch. I also have a particular view with regard to history, having co-authored a book with John Orth about our state constitution, where the first third of the book has to do with the development of our state constitution, which is so instructive as we seek to properly interpret this fundamental social contract. All of those things led me to run for chief justice.
Having first been elected to the Supreme Court in 2004, I believe you would have served alongside four chief justices during your tenure. What are some of the things that you remember best about your predecessors, and how might these experiences serve you as you begin your tenure as chief justice?
Chief Justice Paul Newby and his wife, Macon, participate in the virtual investiture ceremony on Jan. 6.
That’s right. I have been blessed to serve with four very unique, very distinguished chief justices. When I was first elected, I. Beverly Lake Jr. was chief justice. Of course, his father had also served on this court. Chief Justice Lake was the epitome of a gentleman. He treated everyone with such dignity and respect. He was very humble in his approach to the position and I had the opportunity as the junior justice to get to drive him to various events, to spend time with him. I learned so much history of the state, particularly of the ’50s, ’60s and ’70s. He was a walking encyclopedia of the state, particularly state political history. I learned so much from him.
The next was Chief Justice Parker. Chief Justice Parker is such a pioneer in so many ways. She would explain to me about her being one of three women in her law school class, which was surprising to me because half of my law school class were women. She shattered so many glass ceilings of our profession. She encountered so many challenges as a female lawyer in Mecklenburg County when she first practiced and of course serving on the Court of Appeals and then on this court as well. Chief Justice Parker had such a wonderful memory and recall for cases or issues that had come before this court since she started serving in 1992. She had a great memory of internal practices and actual cases. She was a very concise writer.
Chief Justice Martin was such a brilliant jurist and well-respected across the United States given his role with the American Bar Association, and all of the different aspects of his being a jurist. His Commission on Law and Justice was something that needed to be done. He put together the blue-ribbon commission that looked at every area of our judicial system and came up with a lot of really insightful recommendations. Chief Justice Martin was very open about the chief justice’s extra responsibilities and even allowed me to have some opportunities outside of my role then as senior associate.
And then lastly, Chief Justice Beasley, whom I said stepped into her role and had to encounter the pandemic and had to issue emergency orders. Frankly, she encountered unique challenges because of the pandemic. Her methodical approach to trying to deal with all of the unique challenges was very instructive to me.
How would you describe your judicial philosophy, and how has this philosophy evolved since you first began serving on the Supreme Court?
Let me start with the second part of your question—my judicial philosophy has probably sharpened not evolved. But with regard to my judicial philosophy, in 2004 and 2012 and again in 2020, I have described myself as a common-sense constitutional conservative. That means that I practice judicial self-restraint. It is the General Assembly that changes the law, not judges. Judges interpret the constitution and laws as the drafters intended. If the General Assembly wants to change laws or if the people want to change their constitution, each has the authority to do so. It is my job to apply the laws as written. I think if you read my opinions over the last 16 years, hopefully I have faithfully followed that philosophy. Again, another aspect of my approach is that the law is for everyone. I call it the common-sense approach derived through our being a common law jurisdiction. Only 10 percent of the world’s jurisdictions are common law, 90 percent are civil law. Our common law tradition recognizes that the law is for everyone. When we think about what’s reasonable, we’re going to this whole idea of common sense under the circumstances.
For most of your campaign and now throughout your first month as chief justice, we have been dealing with the impact of the pandemic. What are some of the specific challenges facing the court and the judicial system now, and what do you anticipate will be the biggest challenges moving forward?
First, we have to address the challenges in front of us right now. And then the second aspect is how we deal with the backlog of cases.
The first part has to do with the guiding principles, open courts and balancing how to do so safely. We allow the local stakeholders to make their decisions, providing them with needed information. We work with the COVID Task Force to provide information and best practices. We coordinate with the stakeholders through their conferences.
In the emergency order we issued, we allow local officials to decide the degree to open their courthouses, but keep all the different tools in the toolbox—being able to use virtual hearings, doing things that can be done electronically as opposed to in person, and ensuring magistrates, clerks, and district court and superior court judges have the tools that they need to administer justice safely. And then also, when you get to actual trials— jury trials, bench trials— to ensure that the judges feel like they have the authority under the emergency orders to ask a witness to remove a mask so the jury or the finder of fact can actually see facial expressions.
We want the courts to have the tools to administer justice without delay, but to do so safely. Now that we are becoming comfortable with forms of technology, we need to decide what should survive the pandemic. Some of the tools are time saving and efficient innovations. Trying to figure out what kind of tools that have been developed during the pandemic should carry over into our justice system without in any way jeopardizing due process rights.
In addition to the pandemic related innovations, we have eCourts and e-filing coming soon. We’re still on track for pilot districts this summer. We are trying to determine what rules and statutes need to be changed so that we can move to eCourts as anticipated.
One other aspect of navigating safely opening courts and rolling out eCourts is the work of the Administrative Office of the Courts (AOC). From open courts to developing eCourts, AOC is working with the stakeholders.
My vision is for AOC is to be the best service agency in state government. We have surveyed our clientele to ensure that AOC is equipping and assisting the local judicial officials to do justice. One of the first things I did was to sit down with the new Director of AOC, Judge Andrew Heath, to determine the right mission statement for AOC. Now, we’re working to implement that.
These are the questions that I have formulated for this interview, but I welcome your thoughts and comments on any additional issues and topics that you wish to discuss.
Then-Justice Paul Newby, pictured with his wife, Macon, received the NCBA John McNeill Smith Jr. Constitutional Rights & Responsibilities Section Award in 2012.
The one thing I want to encourage my fellow attorneys with is that we have an incredibly high calling. We have such a wonderful position in our culture, and that is that we are the ones who effectuate the promises of the Declaration of Independence. Our state constitution since 1776 has said, “A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” I think too often in our profession we get caught up in what could be the competitiveness of it, forgetting that it is not about winning cases, it is about justice. As a litigator I knew that my job was not to decide the case. The best I could do was present my client’s position in the most favorable light. Ultimately, a judicial official would make the determination.
What I really hope is that all of us will stop and reflect on how blessed we are to be in the legal profession. We are leaders in our communities just like we are leaders within the courthouse community. We need to be the leaders when it comes to civility in our discussions regarding our state and nation. I am seeing an awful lot of folks who seem to be over-identifying with their client, embracing that position to such an extent that their attitude appears to be, “My client is in the right and anybody who opposes them is wrong.” My humble point is we can do better. We can model that while our job is to zealously represent our client, we can be cordial with opposing counsel outside of the context of the case itself. We can treat everybody with civility and respect, dignity and honor. Basically, it’s the Golden Rule that we have all heard all our lives, which is treat others the way we want to be treated. And I am hoping when we reflect on what a high calling we have, and when we reflect on how we are the leaders, that we will go that extra mile to do everything we can to set a good example of civility.
I want to give credit where credit is due. I first met [former NCBA Executive Director] Allan Head in 1980 as a young associate with the Van Winkle Law Firm in Asheville. I was immediately drawn to him as everyone was. I considered him a dear friend throughout my career. Allan Head always emphasized, “Leave the campsite better than you found it.” That is certainly my goal as chief justice. I hope all of you will join me in improving “the campsite.”
Russell Rawlings is director of external affairs and communications for the North Carolina Bar Association.
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