NO.

COA10-696 DISTRICT 15B

NORTH CAROLINA COURT OF APPEALS

*******************************

ELIZABETH HARRINGTON,
Plaintiff,
FROM:ORANGE COUNTY
FILE NO.09-CVD-27
vs.

ADRIAN SHELTON WALL,

Defendant.

******************************

JOINT BRIEF FOR DEFENDANT-APPELLANT ADRIAN SHELTON WALL

AND BETSY J. WOLFENDEN, COUNSEL FOR DEFENDANT-APPELLANT

*****************************
 ii

INDEX

Table of Cases and Authorities iii

Statement of the Case . . . . . . . . . . . 1

Statement of Grounds for Appellate Review 9

Statement of the Facts . 9

Argument:

I. THE HONORABLE BEVERLY SCARLETT ERRED AND VIOLATED

MR. WALL'S CONSTITUTIONAL RIGHT TO DUE PROCESS BY
FAILING TO DISQUALIFY HERSELF AND BY FAILING TO REVEAL
HER PERSONAL BIAS AGAINST MR. WALL'S ATTORNEY, BETSY
J. WOLFENDEN, WHICH VIOLATED THE NORTH CAROLINA CODE
OF,JUDICIAL CONDUCT AND OBSTRUCTED JUSTICE 29

Conclusion . . 35

Certificate of Compliance 36

Certificate of Filing and Service 37

Appendix . . . . . . . . . . . . . . . . . . . . 1-6
• 17 June 2009 email from Wolfenden to Judge Scarlett
• First five (5) pages of 17 June 2009 transcript
 iii

Table of Cases and Authorities

Cases

Chesson v. Kieckhefer Container Co., 223 N.C. 378,

26 S.E.2d 904 (1943) 30

In re Beard, 811 F. 2d 818 (4th Cir. 1987) .....30

In re Murchison, 349 U.S. 133 (1955) 30

Lange v. Lange 167 N.C. App. 426, 605 S.E.2d 732

(2004) : 31

Liteky v. United States, 510 U.S. 540 (1994) ...30

Piedmont Triad Regional Water Authority v. Sumner

Hills Inc., 353 N.C. 343, 543 S.E.2d 844
(2001) 29

Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978)

.............................................. 30

State v. Fie, 320 N.C. 626, 359 S.E.2d 774

(1987) 31

State v. Kennedy, 110 N.C. App. 302,

429 S.E.2d 449 (1993) 36

Statutes

N.C. Gen. Stat. § 7A-27 (e) 9

Title 28 U.S.C. § 455(a) 35

Rules

NC Code of Judicial Cndet., Canon 3(C) (1) ..... 30

NO. COA10-696 DISTRICT 15B

NORTH CAROLINA COURT OF APPEALS

*******************************

ELIZABETH HARRINGTON,
Plaintiff,
FROM:ORANGE COUNTY
FILE NO.09-CVD-27
vs.

ADRIAN SHELTON WALL,

Defendant.

**************************************

QUESTIONS PRESENTED

*************************************

I. THE HONORABLE BEVERLY SCARLETT ERRED AND VIOLATED MR. WALL'S

CONSTITUTIONAL RIGHT TO DUE PROCESS BY FAILING TO DISQUALIFY
HERSELF AND BY FAILING TO REVEAL HER PERSONAL BIAS AGAINST MR.
WALL'S ATTORNEY, BETSY J. WOLFENDEN, WHICH VIOLATED THE NORTH
CAROLINA CODE OF JUDICIAL CONDUCT AND OBSTRUCTED JUSTICE.

STATEMENT OF THE CASE

Plaintiff-Appellee Elizabeth Harrington ("Plaintiff") is

white and a Canadian citizen. Defendant Appellant Adrian Shelton

Wall ("Mr. Wall") is black and is a citizen and resident of Dur-

ham County, North Carolina. Their son was born on 12 September

2005 and he has not seen his father since June of 2009 when the
 -2-

Honorable Beverly Scarlett found Mr. Wall unfit to have "any

form of custody" or "any visitation" with his son. (R. p. 149)

The Plaintiff initiated this case by and through her attor-

ney of record, Donna Ambler Davis ("Davis"), by filing a com-

plaint in Orange County District Court on 6 January 2009 for

child custody and support. (R. pp. 8-13) At that time, Mr. Wall

was not represented by counsel. The parties successfully medi-

ated child custody 26 January 2009. (R. p. 32) Mr. Wall signed

the parenting agreement on 13 February 2009, but Plaintiff did

not. (R. p. 32)

On 24 February 2009, Davis obtained a Rule 55 entry of de-

fault from the Assistant Orange County Clerk of Superior Court.

(R. pp. 17-20). On 6 April 2009, the Honorable Joseph M. Buckner

calendared Plaintiff's claims before the Honorable Alonzo B.

Coleman, Jr. on 24 April 2009, (R. pp. 33).

On 13 April 2009, undersigned counsel, Betsy J. Wolfenden

("Wolfenden"), filed a notice of appearance and a motion to set

aside entry of default. (R. pp. 23-32) On 24 April 2009, Mr.

Wall filed his verified answer and counterclaims and motions to

change venue and for an order requiring Plaintiff to sign an af-

fidavit of paternity. (R. pp. 45-52) Immediately prior to the

24 April 2009 hearing, Judge Buckner removed Judge Coleman from

the instant case and assigned Judge Scarlett. (R. p. 53)

 -3-

On 24 April 2009, Wolfenden argued before Judge Scarlett

that Mr. Wall's motion to set aside entry of default should be

granted. Davis argued it should be denied. Judge Scarlett or-

dered Davis and Wolfenden to provide her with memoranda of law

by 1 June 2009 in support of their arguments. (R. pp. 53) Judge

Scarlett continued the hearing on Plaintiff's claims for perma-

nent child custody and support to 17 June 2009. Id. On 1 June

2009, Wolfenden provided Judge Scarlett with a memorandum of law

in support of setting aside the entry of default; Davis never

did. (R. pp . 59-64, 131)

On 15 June 2009, Judge Scarlett sent Wolfenden an email,

denying Mr. Wall's motion to set aside the entry of default. (R.

p. 133) Mr. Wall instructed Wolfenden to appeal Judge Scar-

lett's ruling prior to the child custody and support hearing on

17 June 2009, as Judge Scarlett's denial, though interlocutory,

affected a substantial right. On 16 June 2009, Wolfenden asked

Judge Scarlett to enter a written order from which Mr. Wall

could appeal prior to the 17 June 2009 hearing. (R. p. 134)

Judge Scarlett did not enter a written order, so Mr. Wall sought

a temporary stay with this Court prior to the 17 June 2009 hear-

ing and filed petitions for writs of mandamus, supersedeas and

certiorari. (R. pp. 72-134) This Court denied Mr. Wall's motion
•
for temporary stay on 17 June 2009 and, later, his petitions.

(R. p. 160)
 -4-

On 17 June 2009 1 Wolfenden appeared at the child custody

and support hearing on behalf of Mr. Wall after filing Mr.

WallIs motion for temporary stay and petitions with this Court

in Raleigh at 9:30 a.m. (R. p. 72) Shortly after Wolfenden en-

tered the courtroom l Judge Scarlett left the courtroom. Wolf-

enden waited forty-five minutes for Judge Scarlett to begin the

child custody and support hearing. At one pointl Wolfenden left

the courtroom to call Mr. Wall (R. p. 177-178) While Wolfenden

was sitting outside the courtroom speaking to her client, Judge

Scarlett reentered the courtroom and began the hearing on perma-

nent child custody and support without Wolfenden or Mr. Wall

present. (R. p. 142) Judge Scarlett found as fact in her written

child custody and support order that "[Wolfenden] was observed

sitting outside of the courtroom at the time the hearing in this

case began." Id.

On 18 June 2009, Judge Scarlett entered an order denying

Mr. Wall's motion to change venue to Durham County. (R. pp. 135-

137) On 22 June 20091 Judge Scarlett entered the written order

denying Mr. Wall's motion to set aside entry of default that

Wolfenden had asked Judge Scarlett to enter before 17 June 2009

so Mr. Wall could appeal it before the child custody hearing.

(R. pp. 138-140) On 22 June 2009, Judge Scarlett also entered a

written child custody and support order from the 17 June 2009

hearing. (R. pp. 141-154)

 -5-

On 25 June 2009, Mr. Wall filed a motion to recuse Judge

Scarlett from h~aring f~rther matters in this case on the

grounds that Judge Scarlett's bias against his attorney violated

his constitutional right to due process. (R. pp. 155-157) On 6

July 2009, Mr. Wall filed verified Rule 59 and 60 motions, ask-

ing that he be relieved from Judge Scarlett's 18 and 22 June

2009 orders and that he be granted a new trial before an impar-

tial judge on the grounds that Judge Scarlett had engaged in ju-

dicial misconduct and her bias against his attorney violated his

constitutional right to due process. Mr. Wall also f~led a Rule

62 motion for stay of proceedings. (R. pp. 162-171)

On 27 July 2009, Wolfenden issued a subpoena to Judge Scar-

lett to make oral deposition so Mr. Wall could develop the nec-

essary facts pertaining to Judge Scarlett's bias at the eviden-

tiary hearing on his Rule 59 and 60 motions. On or about 4 Au-

gust 2009, Grady L. Balentine, Jr., Special Deputy Attorney Gen-

eral, filed an objection to the subpoena on the grounds that

Judge Scarlett had testimonial immunity for her judicial acts.

(R. pp. 182-183) On 25 August 2009, Mr. Wall filed a motion to

compel Judge Scarlett to make oral deposition. (R. pp. 187-189)

Balentine instructed Wolfenden to make arrangements with the

court for another judge to hear the motion to compel. On three

occasions, Wolfenden asked Judge Buckner to assist the parties

and their attorneys in calendaring Mr. Wall's motion to compel

 -6-

in front of another judge; Judge Buckner did not assist. (R. pp.

216-219) On 4 September 2009, the Honorable Charles T.L. Ander-

son was brought in at the last minute from another courthouse to

hear Mr. Wall's motion to compel. (R. pp. 228-229) Judge Ander-

son denied Mr. Wall's motion to compel Judge Scarlett to make

oral deposition and Mr. Wall filed his written notice of appeal

from Judge Anderson's order on 19 October 2009. (R. pp. 228-229,

239)

On 10 August 2009, Plaintiff filed a verified motion for

Rule 11 sanctions against Mr. Wall and Wolfenden on the grounds

that Mr. Wall's Rule 59 and 60 motions failed to establish that

evidence existed warranting relief.1 On 4 September 2009, Judge

Scarlett heard Mr. Wall's motion to recuse, his Rule 59 and Rule

60 motions, and his Rule 62 motion for stay of proceeding. In

open court, Judge Scarlett told Mr. Wall she would consider

granting his Rule 59 and 60 motions if he could produce a case

holding that when an attorney is seen by the trial court sitting

outside the courtroom prior to the commencement of a court hear-

ing, the trial court should inform the attorney that the hearing

is beginning. (R. pp. 220) Wolfenden declined to produce such a

case but, instead, wrote Judge Scarlett a letter on 8 September

While preparing this brief, it came to undersigned counsel's attention that

the Record on Appeal does not contain Plaintiff's Rule 11 motions for sanc-
tions. Undersigned counsel intends on amending the Record as soon as possi-
ble to include said motions.
 -7-

expressing her belief that Judge Scarlett's actions in the in-

stant case had resulted in injustice to Mr. Wall. (R. pp. 220-

227) On 13 October 2009, Judge Scarlett entered an order from

Wolfenden's letter, concluding as a matter of law that Mr. Wall

waived his right to be heard on 17 June 2009 by failing to show

up and participate. (R. pp. 231-235) The order was served on

Mr. Wall on 30 October 2009. (R. p. 235) Mr. Wall filed written

notice of appeal from Judge Scarlett's 13 October 2009 order on

30 November 2009. (R. pp. 251-252)

On 15 December 2005, Judge Scarlett entered an order deny-

ing all of Mr. Wall's motions, concluding, in relevant part,

that he had provided no factual or legal basis for his motion to

recuse and that the Rule 59 and 60 motions were without "legal

justification." (R. pp. 255-257). On 14 January 2010, Mr. Wall

filed written notice of appeal from Judge Scarlett's order deny-

ing his motion to recuse, Rule 59 and 60 motions, and Rule 62

motion for stay of proceeding.

On 15 December 2009, Plaintiff was heard on her motion for

Rule 11 sanctions. Judge Scarlett granted Plaintiff's motion,

finding that "on. their face" Mr. Wall's Rule 59 and 60 motions

appeared to be without legal justification because Wolfenden

"chose" not to obtain leave of court to continue the 17 June

2009 hearing or hold it open while she filed papers with the

Court of Appeals. (R. pp. 286-264) Judge Scarlett concluded as

 -8-

a matter of law that Mr. Wall's Rule 59 and 60 motions were "not

well grounded in fact or law, and were filed for an improper

purpose" and she ordered Wolfenden and Mr. Wall to pay $8,175.33

in attorney's fees to Attorney Donna Ambler Davis. (R. p. 263).

On 20 January, 2010, Mr. Wall and Wolfenden filed written no-

tices of appeal from the order granting Plaintiff's motion for

sanctions against them. (R. pp. 271-264)

On 21 January 2010, Mr. Wall and Wolfenden filed a Motion

for Stay of Judgment Directing Payment of Money Pending Appeal

to this Court. (R. pp. 275-277) The Proposed Record on Appeal in

this case was served on 3 May 2010. (R. p. 363). The Record on

ApDeal was settled on 2 June 2010 and was filed and served on 4

June 2010. (R. pp. 364-365) Defendant-Appellant's brief was

originally due on 6 August 2010. On 5 August 2010, Wolfenden

filed a motion to extend time to serve the joint brief. This

Court granted the motion as to Wolfenden but not as to Defen-

dant-Appellant on the assumption that Wolfenden was not licensed

to practice law on the day she filed the motion. On 10 August

2010, Wolfenden filed another motion to extend time to file and

serve Mr. Wall's brief in which she explained that the State Bar

disciplinary order was not effective until 30 August 2010. Said

motion was granted by this Court on 11 August 2010 and Wolfenden

was given until 20 August 2010 to file and serve Mr. Wall's

brief.
 -9-

On 17 August 2010, Wolfenden filed a 171-page (including

exhibits) petition for writ of supersedeas with the North Caro-

lina Supreme Court in her State Bar disciplinary hearing. Due

to the time required to complete the petition, Wolfenden was not

able to complete this brief by 20 August 2010. Simultaneously

with filing and serving this joint brief, Defendant-Appellant

and Wolfenden have filed a joint motion to deem their joint

brief timely failed and served.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

The trial court's order denying post-judgment relief con-

stitutes a final judgment subject to immediate appellate review

pursuant to N.C. Gen. Stat. § 7A-27 (c).

STATEMENT OF THE FACTS

In February of 2008, Betsy J. Wolfenden ("WolfendenU),

trial and appellate counsel for Defendant-Appellant, Adrian

Shelton Wall, ran for district court judge in Judicial District

15-B against the Honorable Alonzo B. Coleman, Jr. with the goal

of ensuing that domestic cases in Orange and Chatham Counties

would be resolved within a reasonable period of time and that

the due process rights of civil litigants would be protected.

In April of 2008, Wolfenden ran a campaign ad in The Inde-

pendent Weekly. (R. pp. 343-345) The ad consisted of a photo of

Wolfenden, a link to her campaign website at betsyforjudge.com,

 -10-

and the slogan, ~It Takes a Strong Woman to Stand up to a Good

01' Boys Network." Id. Unbeknownst to Wolfenden, a sitting

judge in 15-B District Court, Beverly Scarlett, who was ap-

pointed to the bench in 2007 by Governor Michael Easley, found

Wolfenden's ad "personally offensive," and on 5 June 2008, Judge

Scarlett filed an anonymous complaint against Wolfenden with the

State Bar. (R. pp. 3-5) Judge Scarlett complained in relevant

part as follows:

In addition, I am enclosing for your review a

copy of a campaign advertisement published in the
Independent on or about April 30, 2008. The ad-
vertisement is for Ms. Wolfenden's campaign. I
find the advertisement to be disrespectful of the
entire judiciary of Prosecutorial (sic) District
15-B. Further the advertisement is personally
offensive as I am African American.

I can proudly say that our district has the first

African-American District Attorney in the state
of North Carolina. He currently sits as Superior
Court judge. Our district has an African-American
Public Defender and we have had female District
Court judges. It is my opinion that our dis-
trict has embraced diversi ty. I am not sure of
Mr. Wolfenden's motive but I do not that the
phrase "good 01' boys" is highly charged and has
overtones of racial and gender injustice. In my
opinion there can be no excuse for an attorney to
make such a comment not can the comment be made
without the intent to provoke civil unrest.

Finally, I recently became aware of postings by

Ms. Wolfenden on the OrangePolitics blog. I find
her comments disrespectful to the presiding judge
and highly inappropriate. I am amazed she is a
judicial candidate and believes it would be ap-
propriate to advance an agenda and engage in self
serving statements through a blog. I am enclos-
ing information that I received.
 -11-

In summary, Ms. Wolfenden has engaged in numerous

acts that are unprofessional including but not
limited to willfully making .false statements to
the court, demeaning opposing counsel, failing to
follow directives of the court, failing to recog-
nize and adhere to boundaries, bullying, demean-
ing this judge, demeaning the entire District
Court Bench in District lS-B and passing judgment
on a pending case through a political blog.

From 9 April 2008, when Judge Scarlett told the State Bar

she was personally offended by Wolfenden's campaign ad, until 22

January 2010, when Wolfenden received discovery from the State

Bar in her disciplinary proceeding and discovered Judge Scar-

lett's anonymous complaint, Wolfenden was unaware that Judge

Scarlett had accused her of intending to provoke civil unrest

with her campaign ad. After Judge Scarlett complained anony-

mously about Wolfenden's ad on 9 April 2008, Judge Scarlett be-

gan ruling consistently against Wolfenden's clients and entering

orders containing findings of fact which were discourteous and

disrespectful to Wolfenden and her clients. For example, in Ly-

ons v. Lyons, in which Judge Coleman's Campaign Treasurer, Leigh

Peek, was opposing counsel, Judge Scarlett conducted an outside

investigation without counsel present and then refused to con-

tinue a hearing while Wolfenden's client, Mr. Lyons, was at his

wife's side during the birth of their child. In her order,

Judge Scarlett intimated in her findings that. the form Defendant

provided to the court from Sumpter OB-GYN, PA, stating that his
 -12-

wife's labor was being induced on 8 April 2009 at 5:00 a.m., was

falsified because the form itself bore a last revised date of 26

March 2009. ( R . pp . 281-286) Judge Scarlett also made intem-

perate findings such as, "It is unreasonable fbr anyone to sug-

gest or believe that a judge cannot rule impartially on a matter

when the court has given counsel a full opportunity to be heard

and has patiently listened to the entirety of the arguments from

each side" and "It is totally unreasonable for counsel for De-

fendant [Wolfenden] to acknowledge that this Court can make its

own confirmation of her allegations and later object to the

court doing the same." Id.

After reviewing Judge ScarlettTs 8 April 2009 order in the

Lyons case, Wolfenden became so concerned about the level of

animosity Judge Scarlett was directing towards her and her cli-

ents that she wrote the following letter and filed it with the

Orange County Clerk of Superior Court in the Lyons case:

Dear Judge Scarlett:

It came to may attention when I was reading the

court file today in Lyons v. Lyons that Your
Honor had ordered a transcript from the March 23,
2009 Hearing. I have reason to believe that the
transcript is being prepared to support a Bar
complaint against me. I also have reason to be-
lieve that during the time I was running for
judge against Judge Coleman, Your Honor either
brought an anonymous Bar complaint against me or
initiated one.

While these matters remain pending, I am respect-

fully asking Your Honor again to recuse yourself
 -13-

from any of my district court cases in order to

ensure that my clients receive fair hearings be-
fore an impartial judge.

I am taking the liberty of filing this letter in

the Lyons court file. Simultaneously with
emailing this letter to you, I am faxing a copy
to Attorney Leigh A. Peek and mailing a copy to
the Judicial Standards Commission.

Sincerely yours,

Betsy J. Wolfenden

On 9 April 2009,2 Judge Scarlett replied to Wolfenden's let-

ter as follows:

Dear Ms. Wolfenden,

I am writing this letter in response to your let-

ter, written to me, dated April 8, 2009. Please
be advised_that this Court has the authority to
request a transcript in any mater that I have
heard. Further, you are without authority to
question matters that are solely in this Court's
prerogative.

You are aware that you have requested Duplicate

Copies of Verbatim Audio Court Records in the Ly-
ons v. Lyons matter and that is your prerogative.
Likewise, it is this Court's prerogative to get
records that I deem necessary.

Because your letter is grounded in assumption I

find its purpose to be an attempt to obstruct
justice and to bully or threatening (sic) this
Court.

I am putting you on notice that your conduct is

improper. Please be advised that if you continue
to engage in such behavior, or any like behavior,
I will immediately commence a Judicial Discipli-
nary Action against you.

2 Judge Scarlett's 9 April 2009 letter in response to Wolfenden's 8 April 2009

letter is incorrectly dated as 9 April 2008.
 -14-

Sincerely,

Scarlett

Although Wolfenden believed Judge Scarlett's conduct in the

Lyons case warranted a complaint to the Judicial Standards Com-

mission, Wolfenden felt so threatened by Judge Scarlett's 9

April 2009 letter that she did not file a complaint because she

feared Judge Scarlett would make good on her promise to immedi-

ately commence a Judicial Disciplinary Action against her.

At Wolfenden's State Bar disciplinary hearing on 23 April

2010, Judge Scarlett testified as a witness for the State Bar

against Wolfenden. (R. pp. 316-358). Under direct examination

by the State Bar Prosecutor, Carmen Bannon ("Bannon"), Judge

Scarlett testified to the importance of maintaining her reputa-

tion in her community:

BANNON: Did you respond to this [8 April 2009] letter by

Ms. Wolfenden?
JUDGE SCARLETT: I think I did. I responded to a lot of
things until I just got tired of responding --
WOLFENDEN: Objection.
JUDGE SCARLETT: -- and figured it was pointless.
DHC CHAIR: Overruled.
BANNON: Would you look at Exhibit 912 and tell us is that
your response to the letter we just looked at?
JUDGE SCARLETT: Yes, ma'am. Yes, ma'am. And I think it's
pretty clear from my response that my purpose is to put her on
notice that I am acting within my authority, and she's not to
 -15-

question matters that are in my prerogative as a sitting judge.

r had been over that with her before and it was happening yet
again.
BANNON: And in this letter do you also express to Ms.
Wolfenden that you found the putpose of her letter "to be an at-
tempt to obstruct justice and to bully or threatening (sic) this
Court"?
JUDGE SCARLETT: I absolutely did, and I meant it then and I
mean it now.
BANNON: Judge Scarlett, were you concerned at all about Ms.
Wolfenden's allegation in this letter that she puts in the pub-
lic record that you could not be fair and impartial?
JUDGE SCARLETT: I am most concerned about it.
BANNON: In what way?
JUDGE SCARLETT: Well, I started off this morning during my
introduction that I am from the community I serve. r can't
stress enough the importance of that. Both sides of my family
have been residents of Orange County since the forming or Orange
County. Lots of people in the county r am related directly to or
through marriage. Others I have gone to high school with, oth-
ers I serve on boards or commissions with, others I attend
church with. I mean, it is so far-reaching. And it is very im-
portant to me that my reputation be maintained. Whatever happens
here, I go back horne to that same community. Yes, I corne to a
nice courthouse where everything is done in court, but when I
leave, I go back to the same community, my daughter attends
school in that same community. That is who I am. My community.
And things like this, without anyone knowing exactly what went
on, certainly it damages my reputation_ It doesn't matter
whether [Wolfenden] intends to damage my reputation; it's the
impact of it. Anybody wanting to know what happened in [the Ly-
ons] case can come look... (R. pp. 317-319)
 -16-

When Bannon questioned Judge Scarlett as to why she com-

menced the 17 June 2009 hearing in the instant case without in-

forming Wolfenden that the hearing was beginning, Judge Scarlett

replied:

JUDGE SCARLETT: Well, she has consistently maintained that

I have duty to inform an attorney that a hearing is beginning.
And she's gone over this, the number of times that she's asked
me to recuse myself, that she's asked to have an order entered
setting aside my order. And I have repeatedly asked her to show
me her authority. She has gone so far as to say that it vio-
lates her client's constitutional rights, I'm violating the con-
stitutional rights as provided by the State Constitution. I re-
member one day we were in Courtroom 4, the blue courtroom, and I
told her to show it to me. She says, "Well, I don't have a copy
of the constitution with me," so I reached down and grabbed the
[North Carolina] General Statutes with -- a copy of the consti-
tution is there, and I put it on bench and I asked her to find
it. And to this day I have not seen it.
BANNON: So Ms. Wolfenden was not able to cite to a spe-
cific provision of the constitution which requires judges to
contact lawyers on their cell phones before commencing a sched-
uled hearing?
JUDGE SCARLETT: No. And even the cases that she cited that
I read, I didn't see the answer to what I had asked her in those
cases. She will pullout portions, like you see at the back of
her letter here, "A judge should accord every person who is le-
gally interested in a proceeding a full right to be heard ac-
cording to the law," bIas, bIas, bIas, but she failed to accept
the fact that they had the right to be heard when we had the [17
June 2009] hearing .... (R. pp. 334-336)
 -17-

During Wolfenden's cross-examination of Judge Scarlett, she

asked Judge Scarlett about the grievance she filed anonymously

with the State Bar during her judicial campaign in which she

stated that Wolfenden could not have used the phrase "good 01'

boy network" without the intent of provoking civil unrest

WOLFENDEN: ...Now what is your definition of "civil un-

rest"?
JUDGE SCARLETT: Getting people fired up, to use a layman's
term. Causing peoplej in this particular case,-to call into
question what's going on. And while it may not have been your
intent for that to be the likely outcome, if you know much of
American history, in which Orange County is a significant part
of, you cannot loosely use the phrase "good 01' boys" without
people, especially of African-American and Native-American de-
scent feeling upset by it.3 This goes far beyond me. This is
the community. This was published in the community. People saw
it; people raised questions.

WOLFENDEN: So were you saying that that ad with my picture

might instigate racial tension in the community?
JUDGE SCARLETT: Yes. Because it implies that the judici-
ary that was currently sitting operates in a good 01' boy fash-
ion. Where I'm from, which happens to be Hillsborough, North
Carolina, good 01' boy replies (sic) to -- applies to slavery,
lynchings, it applies to people of color and other minorities,
females not getting the same jobs and positions as Caucasian
men. It's totally inappropriate. I will never be able to just

3 Judge Scarlett is of African-American and Native-American descent.

 -18-

accept that. Because the words are highly charged. The words
are highly charged. (R. pp. 344-346)

At no time during the legal proceedings in the instant case

did Judge Scarlett reveal to Mr. Wall that she found Wolfenden's

campaign ad "totally inappropriate" and "disrespectful of the·

entire judiciary of Prosecutorial (sic) District 15-B."

In Plaintiff's complaint filed on 6 January 2009, she al-

leged that she had been the parties' son's primary caregiver

since his birth; that she was a fit and proper person to have

custody of him; and that Mr. Wall should be granted reasonable

and consistent visitation with their son. (R. pp. 8-11) The

parties mediated child custody on 26 January 2009 with Judy Red-

line, Child Custody Mediator for Orange and Chatham Counties,

and on 13 February 2009, Mr. Wall signed the parenting agree-

ment, but Plaintiff did not. On 24 February 2009, Davis ob-

tained an entry of default, alleging that Mr. Wall had failed to

timely file "responsive pleadings." (R. pp. 17-20). Davis also

filed a calendar request and notice of hearing for Plaintiff's

claims for 6 April 2009, which was Orange County calendar call

for the month of April, 20094

4 In Orange County Civil District Court, the Honorable Joseph M. Buckner pre-
sides over "calendar call" once a month at which all court dates for pending
domestic cases are set on that month's calendar. Although the attorneys know
which day of the month is calendar call, most pro se litigants do not. For
example, Davis' 24 February 2009 calendar request and notice of hearing make
it appear as if Plaintiff's claims for child custody and support were going
 -19-

On 6 April 2009, the Honorable Joseph M. Buckner called the

instant case for calendaring. Davis requested that Plaintiff's

child custody and support claims be calendared for 24 April

2009. When Mr. Wall informed the court that he needed more time

to retain counsel, Davis told Judge Buckner that an entry of de-

fault had already been entered, and Judge Buckner denied Mr.

Wall's request for a continuance and calendared Plaintiff's

claims for child custody and support for 24 April 2009 before

the Honorable Alonzo B. Coleman, Jr. (R. p. 33, Motion to Con-

tinue, ~ 8; R. p. 162).

On 13 April 2009, Wolfenden filed an entry of appearance

and a motion to set aside the 24 February 2009 entry of default

on the grounds that entries of default and default judgments are

not favored in child custody cases. (R. pp. 23-30). Immediately

prior to the court hearing on 24 April 2009, Judge Buckner re-

moved Judge Coleman from the instant case and assigned Judge

Scarlett. After receiving Judge Scarlett's 9 April 2009 letter

in which she threatened to immediately commence a Judicial Dis-

ciplinary Action against her, Wolfenden did not dare move Judge

Scarlett to recuse herself even though she believed Judge Scar-

lett was biased against her.

to actually be heard on 6 April 2009 for three hours. Instead, 6 April 2009
was the calendar call for the entire month of April, and when Mr. Wall ap-
peared on 6 April 2009, prepared to put on his case, he was told by Judge
Buckner that the only thing that happens at calendar call is that court dates
are chosen for later in the month.
 -20-

During the 24 April 2009 hearing, Wolfenden argued that

Judge Scarlett should set aside the entry of default before tak-

ing evidence at a permanent child custody hearing because Mr.

Wall had established "good cause" by appearing and mediating

child custody in good faith; that he was proceeding pro se until

13 April 2009; and that entries of default, mere ministerial

functions, are not favored in child custody cases. (R. pp. 59-

64) Judge Scarlett ordered the parties to provide her with memo-

randa of law on or before 1 June 2009 addressing why the entry

of default should be set aside. (R. p. 53) Judge Scarlett con-

tinued the child custody and support hearing to 17 June 2009.

Id.

On 24 April 2009, Mr. Wall filed his verified answer, coun-

terclaims and motion to transfer venue. Mr. Wall denied that

Plaintiff was a fit and proper person to have sale custody of

their son. Mr. Wall asserted that he had shared in his son's

caretaking since he was born and that he became his son's pri-

mary caretaker after Plaintiff returned to school six months af-

ter his birth, and that they shared custody of their son after

they began living apart. (R. pp. 45-52)

On 1 June 2009, Wolfenden submitted Mr_ Wall's memorandum

of law to the court, arguing that the court should only decide

an issue so important as child custody after considering all the

evidence. (R. pp. 59-63) Davis did not submit a memorandum of

 -21-

law in support of her argument that the entry of default should

not be set aside.

On 3 June 2009, Wolfenden sent Judge Scarlett and Davis an

email, informing Judge Scarlett that she had not received Davis'

memorandum of law. (R. p. 20). On 7 June 2009, Wolfenden sent

Judge Scarlett and Davis another email, asking the court to hear

Mr. Wall's motion to transfer venue and motion to set aside en-

try of default on 10 June 2009, prior to the 17 June 2009 perma-

nent child custody hearing. (R. p. 126). On 8 June 2009 at 8:04

a.m., Judge Scarlett responded to Wolfenden's email by stating

that she would be happy to hear any matters if Wolfenden and

Davis agreed to a court date, but if they could not agree, the

matters would have to be placed on the next available calendar

call, which was 6 July 2009.

At 8:41 a.m. on 8 July 2009, Wolfenden responded to Judge

Scarlett's email as follows: "Thanks for your response. A Motion

to Set Aside Entry of Default must be heard before the custody

hearing it pertains to and Your Honor requested that we provide

you with memoranda on or before June 1, which I have done, so on

June 10, my client needs to be heard on his Motion for Change of

Venue and his Motion to Set Aside Entry of Default.H (R. p.

127)

On 10 June 2009, Judge Scarlett heard Mr. Wall's motion to

change venue but she did not enter a ruling on his motion to set

~---~---~-~~ -------------
 -22-

aside entry of default. (R. p. 135) When Wolfenden asked Judge

Scarlett on 10 June 2009 if she should prepare for a 20-minute

hearing or a two-day hearing on 17 June 2009, Judge Scarlett

told Wolfenden to "prepare for the worst." Wolfenden took Judge

Scarlett's comment to mean that Mr. Wall's motion to set aside

entry of default would be granted in accordance with established

black letter law and that Plaintiff's allegations that she was a

fit and proper person to have sole legal and physical custody of

the minor child would not be deemed admitted by the court.

At 10:23 p.m. on 10 June 2009, Judge Scarlett sent Wolf-

enden and Davis an email stating that she had read Wolfenden's

"brief," and that she was extending Davis' time for filing a

memorandum on whether the entry of default should be set aside.

(R. p. 128). At 10:56 p.m. on 10 June 2009, Wolfenden asked

Judge Scarlett if she was imposing a deadline for Davis' submis-

sion of her client's memorandum as the hearing on permanent

child custody was only seven days away. (R. p. 129) On 11 June

2009 at 7:37 a.m., Judge Scarlett replied to Wolfenden's email:

"Hopefully, Ms. Davis will let us know today whether she plans

to submit a brief." An hour later, Wolfenden sent Judge Scar-

lett and Davis an email which read, "In a matter as important as

this, I am requesting that Your Honor provide Ms. Davis with a

deadline." Davis responded by stating that she wanted to pre-

sent a short memorandum by no later than noon on 12 June 2009.

-----------------------------~-----
 -23-

(R. p. 130) At 5:15 a.m. on 12 June 2009, Davis informed Judge

Scarlett that she would not be submitting a memorandum and that

she felt comfortable Judge Scarlett would remember her arguments

from the hearing on 24 April 2009. (R. p. 131)

By 15 June 2009, Judge Scarlett had still not issued a rul-

ing on Mr. Wall's motion to set aside entry of default. Wolf-

enden sent Judge Scarlett an email at 10:37 a.m. on 15 June 2009

which read, "Dear Judge Scarlett, In light of the court ordered

custody hearing commencing in two days and Ms. Davis not prepar-

ing a memorandum of law for the court, I think it's reasonable

for Mr. Wall to request a ruling on his motion to set aside the

entry of default today. Thank you." At·3:32 p.m. that same

day, Judge Scarlett denied Mr. Walls' motion in a one sentence

email: "Motion to set aside the entry of default is denied." (R.

p. 133) At 5:11 p.m., Wolfenden responded to Judge Scarlett's

email, writing, "In light of the black letter law, I find Your

Honor's ruling unusual. Would you please be so kind as to give

some findings of facts and/or citations to specific case law as

to why you denied Mr. Wall's motion? Thank you." Judge Scarlett

did not respond to Wolfenden's email.

After conferring with Mr. Wall, Wolfenden sent the follow-

ing email to Judge Scarlett and Davis at 9:58 a.m. on 16 June

2009, the day before the permanent child custody hearing:

Judge Scarlett,
 -24-

Mr. Wall has asked me to file petitions for writs

of certiorari and..supersedeas and a motion for
temporary stay so that the Court of Appeals can
review your ruling in (sic) 15 June 2009, denying
Mr. Wall's motion to set aside the entry of de-
fault prior to the permanent child custody hear-
ing in this matter.

In order for the Court of appeal to assume juris-

diction in this matter, Your Honor must enter a
formal written order from which Mr. Wall can ask
for appellate review. I have already prepared
Mr. Wall's petitions and motion for temporary
stay and will file them with the Court of Appeals
as soon as Your Honor enters a formal written or-
der.

I would ask that Your Honor enter a formal writ-

ten order denying Mr. Wall's motion to set aside
entry of default prior to 4:00 p.m. today so that
I may obtain a certified copy of Your Honor's or-
der and file Mr. Wall's petitions and motion with
the Court of Appeals first thing tomorrow morning
when the office of the Court of Appeals opens.
Hopefully, the Court of Appeals will make its de-
cision to assumer jurisdiction of this matter by
the end of the day tomorrow.

In the event Your Honor does not enter a written

order by 4:00 p.m. today, I
the Court of Appeals tomorrow
of mandamus, asking that you
a formal written order form
ask for appellate review.
will also petition
morning for a writ
be ordered to enter
which Mr. Wall may

In any event, please contact me as soon as Your

Honor has entered and filed the order so that I
may obtain a certified copy to attach to Mr.
Wall's petitions.

Simultaneously with sending this email to you, I

am sending a copy to Judge Buckner's attention
via Mindy Harris's (sic) email, in the event you
are holding court today outside of Hillsborough
and you are not checking your email.
 -25-

Thank you.

Betsy J. Wolfenden

Judge Scarlett did not respond to Wolfenden's request that

she enter a formal written order denying Mr. Walls' motion to

set aside entry of default, nor did she enter a written order

from which Mr. Wall could file his notice of appeal.

At 7:30 a.m. on 17 June 2009, Wolfenden sent Judge Scarlett an

email, informing her that she was going to file Mr. Wall's petitions

and motion for stay that morning with the Clerk of the Nortb Carolina

Court of Appeals. (App. p. 1) At 9:30 a.m., Wolfenden filed Mr.

Wall's petitions for writs of mandamus, supersedeas, certiorari, and

motion for temporary stay at the Office of the Clerk of the North

Carolina Court of Appeals in Raleigh, North Carolina. After filing

Mr. Wall's motion and petitions, Wolfenden drove to the Orange County

Courthouse to attend the child custody and child support hearing.

When Wolfenden arrived at the Orange County Courthouse, Judge Scar-

lett was finishing another case and the instant case had not yet been

called for hearing. (R. pp. 327-328) After Wolfenden entered the

courtroom, Judge Scarlett left the courtroom.

When Judge Scarlett left the courtroom, Wolfenden got up to

call her client. As she was leaving the courtroom, the bailiff,

William Clemente, told Wolfenden that Judge Scarlett had forbid-

den her from leaving the courtroom. Wolfenden asked Clemente if

she could leave the courtroom to call her client. Clemente al-
 -26-

lowed Wolfenden to leave the courtroom to call her client and

Wolfenden sat on the bench outside the courtroom and called Mr.

Wall. (R. pp. 177-178)

After Wolfenden called Mr. Wall, she returned to the court-

room. Wolfenden waited another twenty minutes or so and when

Judge Scarlett still did not return to the courtroom, Wolfenden

told Clemente that she had needed to get a bite to eat before

the hearing began. Wolfenden gave Clemente her cell phone number

and asked him to give it to Judge Scarlett when she was ready to

begin the hearing.

After Wolfenden had eaten, she had not been called by Judge

Scarlett, so she returned to her office ~n Chapel Hill to check

her fax machine to see if this Court had granted Mr. Wall's mo-

tion for temporary stay. Wolfenden later learned that while she

was sitting on the bench outside the courtroom speaking to Mr.

Wall, Judge Scarlett had begun the hearing without informing

her. Judge Scarlett testified on 23 April 2010 at Wolfenden's

disciplinary hearing that: "I held [this case] open until I had

exhausted all other work for that day. I did not call [this

case] until it was the very last matter on my docket for that

day." (R. pp. 330-331). The transcript of the 17 June 2009

hearing reveals that Judge Scarlett began the hearing in this

case at 11:03:14 a.m., apparently while Wolfenden was sitting

outside the courtroom on a bench speaking with Mr. Wall, and

 -27-

that she recessed court at 11:04:38 a.m., and then resumed the

hearing fifty minutes later at 11:55:55 a.m., all without noti-

fying Wolfenden. It also appears in the transcript that during

the fifty minutes the court was in recess, instead of calling

Wolfenden into court, Judge Scarlett allowed Davis to prepare a

timeline. JUDGE SCARLETT: "Ms. Davis, did you have an opportu-

nity to, uh, get the timeline done?" DAVIS: "I did, Your

Honor." (App. pp. 2-6)

On 22 June 2009, Judge Scarlett entered an order for child

custody and child support, awarding Plaintiff sole physical and

legal care of the parties' son. Judge Scarlett ordered that Mr.

Wall have no contact with the minor child "at any place or in

any form," finding that Mr. Wall was "not a fit and proper per-

son to have any custody or interaction with the minor child."

Judge Scarlett did not find Mr. Wall unfit by clear, cogent and

convincing evidence, and at no time after Plaintiff filed her

original complaint, including on 17 June 2009, did Plaintiff

move the court to amend her complaint that Mr. Wall was unfit.

(R • pp. 141-154 ) In Finding of Fact No. 3 of the order, Judge

Scarlett found that "[Wolfenden] was seen sitting outside the

courtroom at the time the hearing in this case began." (R. pp.

142.)

After Wolfenden learned that Judge Scarlett had held the

permanent child custody and support hearing in this case while

 -28-

she was sitting on the bench outside the courtroom speaking with

Mr. Wall, Wolfenden filed a motion to recuse Judge Scarlett and

Rule 59 and 60 motions to set aside all orders on the grounds

that Judge Scarlett had engaged in judicial misconduct and vio-

lated Mr. Wall's constitutional right to due process. Davis re-

sponded by filing a Rule 11 motion for sanctions on behalf of

her client. Judge Scarlett denied Mr. Wall relief on his motions

and sanctioned Wolfenden and Mr. Wall $8,175.33, payable to

Davis. Wolfenden and Mr. Wall timely filed written notice of ap-

peal from Judge Scarlett's orders as well as from Judge Ander-

son's order denying Mr. Wall's motion to compel Judge Scarlett

to make oral deposition.

ARGUMENT

I. THE HONORABLE BEVERLY SCARLETT VIOLATED MR. WALL'S CONSTITU-

TIONAL RIGHT TO A FAIR_TRIAL IN A FAIR TRIBUNAL ay NOT RECUSING
HERSELF AT THE OUTSET OF THIS CASE WHEN SHE FAILED TO REVEAL HER
PERSONAL BIAS AGAINST MR. WALL'S ATTORNEY, BETSY J. WOLFENDEN,
AND WHEN JUDGE SCARLET VIOLATED THE NORTH CAROLINA CODE OF JUDI-
CIAL CONDUCT.

Standard of Review

Mr. Wall argues to this Court that Judge Scarlett's per-

sonal bias against his attorney, Betsy J. Wolfenden, and her

failure to reveal that bias to him violated his constitutional

right to due process. Accordingly, the standard of review is de

novo. "It is well settled that de novo review is ordinarily ap-

propriate in cases where constitutional rights are implicated."

 -29-

Piedmont Triad Regional Water Authority v. Sumner Hills Inc.,

353 N.C. 343, 543 S.E.2d 844 (2001).

Argument

The issue presented in this appeal is whether the orders

entered by Judge Scarlett against Appellants Mr. Wall and his

attorney, Betsy J. Wolfenden, must be vacated and Mr. Wall re-

ceive a new trial before an impartial judge because Judge Scar-

lett's personal bias against Wolfenden, and her failure to re-

veal said bias to Mr. Wall, violated Mr. Wall's constitutional

right to due process.

Both the federal courts and the courts of this state have

held that a party has a constitutional right to be tried before

an impartial judge. "A fair trial in a fair tribunal is a basic

requirement of due process." In re Murchison, 349 U.S. 133

(1955). "If a judge's attitude or state of mind leads a detached

observer to conclude that a fair and impartial hearing is

unlikely, the judge must be disqualified." Liteky v. United

States, 510 U.S. 540 (1994). A judge "shall disqualify himself

in any proceeding in which his impartiality might reasonably be

questioned." In re Beard, 811 F. 2d 818 (4th Cir. 1987) "Dis-

qualification is required if a reasonable factual basis exists

for doubting the judge's impartiality." See Rice v. McKenzie,

581 F.2d 1114, 1116 (4th Cir. 1978). "The inquiry is whether a

reasonable person would have a reasonable basis for questioning

 -30-

the judge's impartiality, not whether the judge is in fact im-

partial." Id. at 1116.

"A fair jury in jury cases and an impartial judge in all

cases are prime requisites of due process." Chesson v. Kieckhe-

fer Container Co., 223 N.C. 378, 26 S.E.2d 904 (1943) "Our

Courts have repeatedly held, in accordance with the [North Caro-

lina Judicial] Code, 'that a party has a right to be tried be-

fore a judge whose impartiality cannot reasonably be ques-

tioned.'" Lange v. Lange 167 N.C. App. 426, 605 S.E.2d 732

(2004) quoting State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774,

775 (1987) (citing NC Code of Judicial Conduct, Canon 3(C) (1)

(1973) .

Judge Scarlett erred in entering orders which concluded as

a matter of law that Mr. Wall failed to present objective evi-

dence of Judge Scarlett's bias against Wolfenden when Judge

Scarlett concealed the evidence of her personal bias towards

Wolfenden from Mr. Wall. Furthermore, Judge Scarlett was re-

quired by federal and state law to recuse herself sua sponte at

the outset of this case when her attitude towards Wolfenden

would lead a detached observer to conclude that it was unlikely

that Mr. Wall would receive a fair and impartial hearing before

Judge Scarlett. The evidence in the record in support of this

conclusion includes the following conduct by Judge Scarlett:

 -31-

1. On 5 June 2008, Judge Scarlett complained anonymously

to the North Carolina State Bar that she found Wolfenden's cam-

paign ad "personally offensive u

and that, in her personal opin-

ion, Wolfenden could not have used the phrase "good 01' boy net-

work" without having the intent of provoking civil unrest in

Judge Scarlett's community. (R. pp. 3-5)

2. At no time after 5 June 2008 did Judge Scarlett reveal

to Wolfenden or Wolfenden's clients that she found Wolfenden's

campaign ad "personally offensive," and that Wolfenden's use of

the phrase "good 01' boy network U

could not have been made with-

out her having the intent to provoke civil unrest in Judge Scar-

lett's community.

3. When Wolfenden asked Judge Scarlett on 8 April 2009 to

recuse herself from her cases, instead of Judge Scarlett reveal-

ing to Wolfenden that she had complained anonymously during

Wolfenden's judicial campaign to the State Bar that she found

Wolfenden's ad personally offensive as an African American,

Judge Scarlett threatened to "immediately commence a Judicial

Disciplinary Action" against Wolfenden. (R. p. 7)

4. Knowing that she had personal bias against Wolfenden,

Judge Scarlett failed to recuse herself sua sponte on 24 April

2009 at the outset of this case.

5. During the legal proceedings Judge Scarlett displayed

the following actual bias:

 -32-

a. Between 15 and 17 June 2009, Judge Scarlett

failed to enter a written order denying Mr. Wall's motion

to set aside entry of appeal, which prevented Mr. Wall from

appealing Judge Scarlett's ruling prior to the 17 June 2009

hearing.

b. Though Wolfenden was observed sitting on a

bench outside the courtroom on 17 June 2009 when Judge

Scarlett called this case for hearing, Judge Scarlett did

not inform Wolfenden that she was beginning the hearing.

c. After Judge Scarlett began hearing this case

on 17 June 2009 while Wolfenden was speaking with her

client outside the courtroom, Judge Scarlett recessed

court for fifty minutes without informing Wolfenden.

d. Though the bailiff informed Judge Scarlett on 17

June 2009 that Wolfenden had given him her cellular tele-

phone number, Judge Scarlett did not call Wolfenden to

inform her she had begun the hearing.

e. Judge Scarlett, by and through her attorney,

Grady L. Balentine, Jr. objected to Mr. Wall's subpoena for

her to make oral deposition_without informing the court

that the evidence of Judge Scarlett's bias Mr. Wall sought

did not pertain to Judge Scarlett's judicial acts, but was

nonjudicial and within Judge Scarlett's knowledge, and that

she concealed the evidence of her bias from Wolfenden and

 -33-

Mr. Wall until 22 January 2010 when Wolfenden received

discovery from the State Bar.

f. Judge Scarlett denied Mr. Wall's motion to

recuse on the _grounds that he "presented_no legal or

factual basis" for his motion, when the evidence of Judge

Scarlett's bias against Wolfenden was within her knowledge,

and she concealed that evidence from Wolfenden and Mr.

Wall.

g. Mr. Wall brought Rule 59 and 60 motions under

irregularity, misconduct by the trial court, surprise,

error in law and evidence, fraud and, manifest injustice.

Judge Scarlett denied Mr. Wall's motions, concluding they

were without "legal justification" when, in fact, Judge

concealed the evidence of her personal bias from Wolfenden

and Mr. Wall.

h. Judge Scarlett sanctioned Mr. Wall and Wolf-

enden under Rule 11 for filing Rule 59 and 60 motions on

the grounds of judicial misconduct without revealing her

personal bias against Wolfenden to Wolfenden or Mr. Wall at

the Rule 11 hearing.

i. Judge Scarlett's telling Mr. Wall in open court

that she would consider granting his Rule 59 and 60 motions

if he produced a case which held that when the trial court

sees a litigant's attorney sitting outside the courtroom

- ----.------.---.- ----------.------------------------