Fayetteville Councilman Mario Benavente accuses judge of misconduct in Vote Yes lawsuit

Councilman says judge should have recused himself from the lawsuit.

By Paul Woolverton | The Fayetteville Observer | September 15, 2022

Fayetteville City Councilman Mario Benavente calls for reform in the North Carolina courts during a news conference by the Cumberland County Courthouse on Tuesday, Sept. 13, 2022.
Fayetteville City Councilman Mario Benavente calls for reform in the North Carolina courts during a news conference by the Cumberland County Courthouse on Tuesday, Sept. 13, 2022.

Fayetteville City Councilman Mario Benavente on Tuesday alleged Cumberland County Senior Resident Superior Court Judge Jim Ammons behaved unethically when he presided over a hearing in a lawsuit on Sept. 1 between the City Council and local Vote Yes Committee activists.

Ammons, who ruled against the City Council, should have recused himself from hearing the case, Benavente said. And, the councilmember alleged, the judge met privately with Vote Yes supporters to discuss the case prior to the hearing.

A secret meeting between a judge and just one side of a lawsuit to discuss the lawsuit — also known as an unauthorized or inappropriate “ex parte communication” — would be a breach of the North Carolina Code of Judicial Standards. Ethical violations can lead to punishment from the North Carolina Supreme Court.

Benavente offered no direct evidence of an ex parte communication. Instead, “That was the perception received by folks in the audience that day [in the courtroom],” he said. “That’s the perception that I received from constituents who reached out to me since then.”

Ammons on Tuesday declined to comment on Benavente’s statements.

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Vote Yes Committee attorney Lonnie Player was angered by Benavente’s accusation. If Player were to have talked about the case with Ammons outside of the hearing, Player would have been in violation of the rules of professional conduct for lawyers and could be sanctioned by the North Carolina Bar.

“I categorically deny having ex parte communications with Judge Ammons or any other judge concerning this case or any other one in my entire career,” Player said. And neither did his clients with the Vote Yes Committee, he said. These are Suzanne Pennink, Karl Merritt and former City Councilman Bobby Hurst.

The judge’s order on Sept. 1 put the Vote Yes Committee’s voter-initiated referendum on city ballots in this fall’s election. The referendum, for which more than 5,000 signatures had been collected, asks voters to change the structure of the Fayetteville City Council. It would convert four of the nine district seats to at-large seats.

Supporters say the change will give voters more power over the City Council and make the City Council more responsive to citywide needs. Opponents say the Vote Yes initiative is an effort to dilute the power of African-American voters.

The City Council had questions in August as to whether the petition drive for the 5,000 signatures had complied with state law regarding the conduct of such petition drives. The council voted 6-4 against putting the question on the ballots. That decision led to the Vote Yes Committee’s lawsuit and Ammons’ ruling in favor of the committee.

Benavente’s comments came during a news conference on Tuesday held by progressive activists who want to reduce partisan politics in the courts and enact new ethics rules to ensure judges won’t preside over cases involving their families and friends.

Benavente, who is a recent law school grad and preparing to take the bar exam for his law license, cited the Vote Yes litigation as an example of why reforms are needed.

Benavente asserted Ammons made up his mind prior to the Sept. 1 hearing.

“And rather than kicking that up to somewhere outside of the county, a local judge ended up ruling,” Benavente said. “And it was clear to many in the audience, as it was clear to many who read it in the paper the next day, that that decision was not made based on the facts presented that morning in the courtroom, but likely on the conversations that happened at Highland Country Club.”

Highland is an exclusive, expensive, invitation-only country club that has counted many Fayetteville movers-and-shakers among its membership. Ammons is not a member.

Including Ammons, Cumberland County has four local Superior Court judges who could have heard the Vote Yes lawsuit. Benavente said the three other than Ammons had recused themselves.

That is not accurate, said Cumberland County Trial Court Administrator Ellen Hancox. It was Hancox’s job to find a judge to hear the case quickly after the lawsuit was filed — the Vote Yes Committee sought a judicial decision yea or nay ahead of a looming deadline for ballots to be printed. Mail-in ballots were supposed to start being sent to absentee voters on Sept. 9.

The first judge Hancox asked was Judge Claire V. Hill, she said. Hill declined, saying it would be inappropriate for her to hear the case because Hill used to be the chair of the Cumberland County Board of Elections. In addition to the City Council, the Vote Yes Committee had sued the Board of Elections.

Hancox said she next asked Ammons, and he agreed to hear it.

The other two Cumberland County Superior Court judges, Mark Sternlicht and Gale Adams, were never asked, Hancox said.

Senior North Carolina reporter Paul Woolverton can be reached at 910-261-4710 and pwoolverton@gannett.com.

The original story can be viewed on the Fayetteville Observer.

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