Judge who approved Silent Sam deal previously had UNC-favorable decisions reversed

According to a motion filed in February by the petitioner in Semelka v. The University of North Carolina, a case arising from the discharge of a tenured UNC radiologist: “Judge (R. Allen) Baddour made critical findings in favor of Defendant (UNC) in the face of contradictory evidence,” in a past case.

Baddour is the judge who signed off on the Silent Sam settlement. At least two of his past decisions that were UNC-favorable were later reversed after appeals, the motion said. 

Read more: Layers of connection exist between the parties involved in Silent Sam settlement

The motion was not approved and the Semelka case is now pending in the court of appeals. The motion argued an outside judge would be better suited to hear the case, to avoid the appearance of institutional bias. 

“The Defendants (UNC) in both cases are a major economic and political influence in Judicial District 18,” the Semelka motion said. "The assignment of a single judge from outside Judicial District 18 will contribute strongly to the appearance of fairness and independence in the judge."

The motion cited a Carol Folt-friendly Facebook post from Judge Carl Fox, and examples of cases where Baddour favorably ruled for UNC. Former Chancellor Carol Folt "made the decision to terminate Dr. Semelka," the motion said.

In Frampton v. UNC, a tenured professor accused of trafficking cocaine sued UNC for violating its own employee pay policies after suspending his pay. 

In DTH Media Corp. v. Folt, The Daily Tar Heel sued the University after being denied access to public records regarding sexual assault cases on campus.

In both cases, Baddour ruled in favor of UNC and the decision was changed after appeal. 

The Silent Sam settlement 

Superior Court judges in North Carolina typically rotate every six months within their division, but are usually unassigned on short holiday weeks. All Superior Court judges were unassigned for the week of Nov. 25 because of Thanksgiving.

Baddour has mostly been operating in Caswell and Rockingham counties during the fall session of 2019. However, when the Sons of Confederate Veterans filed suit against the UNC System on Nov. 27, Baddour was not bound to any particular jurisdiction and was free to travel to Orange County.

Duke law professor Kathryn Bradley said nothing about the case indicates there’s a clear-cut violation of judicial conduct, and that responsibility typically rests with the judge in deciding whether or not to recuse themself if the appearance of a conflict of interest arises. 

“He also has an obligation on his own to not do anything that creates the appearance of impropriety,” Bradley said. 

When the consent judgement in the Silent Sam settlement was stamped, about seven minutes had passed since the complaint by the Sons of Confederate Veterans had been stamped. The system’s response was stamped one minute after the initial complaint. 

In total, the complaint, the system’s answer and the consent judgement make up over 70 pages of nuanced legal writing, not including the exhibits. Procedurally, the actors involved enacted the complaint into a $2.5 million payout to the SCV in less than 10 minutes.

“I’m also certain that they went to him specifically because of his connections,” Bradley said. “So that once they had the settlement done and it needs to be filed, they didn’t have to waste any time. They could just get him to sign it.”

Attempts by legal actors to find a friendly judge are not a notable occurrence in N.C. and alone don't indicate a code violation, Bradley and other attorneys said. 

Executive Director of the North Carolina Judicial Standards Commission Carolyn Dubay said she can't answer questions about specific instances, but pointed toward a 2015 formal advisory opinion for information on how the courts recommend dealing with situations where familial conflicts of interest might be at play.

The opinion says judges have no duty "to tender a recusal based solely upon a distant familial relationship."

Outside counsel 

The UNC System needed permission from the governor or attorney general to use outside counsel in the SCV lawsuit. On Nov. 25 the chief deputy attorney general wrote a letter to the governor’s office, saying it would be impractical for his office to provide representation. He recommended Ripley Rand of Womble Bond Dickinson be contracted to represent the UNC System. 

“It is our understanding that the legal fees and expenses will be paid through non-state appropriated funds and that a cap of $125,000 for this matter has been established,” Chief Deputy AG Alexander Peters said in the letter.

Womble Bond Dickinson represented the UNC System in the SCV lawsuit and conducted an investigation into the situation at East Carolina University in the fall, when the former interim chancellor was fired after a night out drinking with students. 

Rand was formerly a N.C. Superior Court Judge and a U.S. attorney. His Womble Bond Dickinson biography page says "Ripley offers unique insights into the way government agencies approach investigations and regulatory issues."

In 2018, Rand and Baddour gave a joint presentation at the UNC School of Law’s Festival of Legal Learning called “View from the Courtroom: Ethics and Professionalism.” 

A Womble Bond Dickenson press release said the session would "offer an interesting and amusing look at important rules of professionalism, ethics and general rules of practice, including interactions with the court, opposing counsel and witnesses."

Rand’s father Tony is the former majority leader of the N.C. Senate, who was in office at the same time Baddour’s uncle Phil was serving as a state senator representing Lenoir and Wayne counties. 

Tony Rand donated money to a committee set up in 2006 to keep Baddour in office as Superior Court judge, as did Dean Smith and a list of other important UNC figures and administrators. 

Allen Baddour, his brother and Ripley Rand have not responded to repeated requests for comment from the DTH via phone and email since Dec. 12.

Reporting contributed by Director of Investigations Charlie McGee.

university@dailytarheel.com