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Filling the vacancy: Unique process plays out to replace retiring Superior Court judge

Filling the vacancy: Unique process plays out to replace retiring Superior Court judge

When Superior Court Judge William Coward announced his retirement late last year, it caught many in the Western North Carolina legal community off guard and set in motion a process with little precedent.

Now, two Republicans, District Court Judge Tessa Sellers and Assistant District Attorney John Hindsman, square off to see who will appear on the November ballot to become the senior resident Superior Court judge for district 43A, made up of Macon, Swain, Clay, Graham and Cherokee counties.

But the complicated procedure to fill the vacancy has left some folks wondering whether too many people are playing politics with the judiciary.

After only 10 years on the bench, a relatively short span compared to many other judges, Coward announced his retirement in December of last year and made it official on Feb. 1, creating a judicial vacancy that has to be filled quickly to keep things moving in a judicial district that’s already backed up.

Coward, a Republican, wasn’t up for reelection until 2030, but this November, the seat will be on the ballot. Because the vacancy on the bench was created after the Dec. 15, 2023, deadline to appear on the 2024 ballot, GOP  members in the five counties he served will vote to see who will appear on the 2024 ballot with the hope that that person will subsequently be appointed by Gov. Roy Cooper.

The process

On Jan. 13, 2024, an internal NCGOP memo laid out the process for a Republican to appear on the November 2024 General Election ballot. NCGOP provided The Smoky Mountain News with a copy of that memo, which draws from both statute and the party’s State Plan of Organization. The memo notes that because the filing period has already closed for the 2024 election, a committee made up of that party’s members can hold a vote to put someone on the ballot, and Democrats can do the same. At this time, there’s no indication that Democrats intend to put anyone on the ballot, although that may change over the coming months.

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The governor’s appointee would fill the vacancy until the winner of the 2024 election is sworn in.

State law dictates that in a multi-county judicial district, only “county executive committee members” who live within that multi-county district may vote. In this case, that’s the five counties that make up the District 43A.

The details of how the vote would play out are based on the party’s plan of organization and are laid out in the memo. The county executive committees are made up of a chair, vice chair, secretary and treasurer, along with five at-large members selected during the county convention, which is held in odd years. That means the nine members from each of the five counties — 45 people total — will vote. But the votes will be weighted based on the number of registered Republicans in that county.

The numbers for the weighted vote were pulled when the memo was issued and are as follows: Macon has the most at 35.31%, then Cherokee with 33.71%, Clay with 13.52%, Swain with 8.77% and Graham with 8.69%. While all nine members of each executive committee are expected to vote, if one doesn’t show up, that doesn’t change how the counties are weighted, meaning each voter on that executive committee would have a greater say.

Michele Woodhouse is the party chair for NC-11 and has been executing the process laid out by the state party. She said NCGOP general and senior counsel both reviewed the plan and that it’s the same process that’d be followed for a similarly timed vacancy elsewhere, even though this is the first time she’s seen something like this play out for a judicial seat.

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“My job has been to call the meeting in accordance with general statute and the plan of organization,” she said, adding that she thinks the process has gone well and that the executive committee members have had the chance to get to know the candidates to make an informed decision.  

However, a few people have taken issue with the process. While some of those people have questioned if the weighted vote is proper, others think there shouldn’t even be a party-driven process to get someone on the ballot. Danny Davis, a retired District Court judge, a Democrat and current head of the Haywood County Board of Elections, believes that because Coward wasn’t up for election this cycle and the filing period had already closed, that state law would dictate that Cooper’s appointment would hold the seat until the next Superior Court election cycle in 2026.

“If Judge Coward had filed, then yes this applies, but that’s not the case since he’s not up for election. No one’s raising this stuff but me,” he said. “I couldn’t find any case law on this, so I would have thought the state board of elections would have rendered an opinion on this at some point, but it hasn’t.”

The state board of elections did not respond to a request for comment.

Cherokee County attorney Zeyland McKinney raised more of a philosophical issue with the process. McKinney who is the judicial district bar counsellor, meaning he represents the district on the state bar, simply argued that voters should have a say and not just the 45 total members of the executive committees. 

“Except in the most dire circumstances, there ought to be a primary to determine who the nominees of the respective parties will be,” he said. “I understand there are statutes and laws, but what’s right and what’s wrong may be different from the statute.”

The candidates

Hindsman and Sellers are both Clay County natives.

Like his father who deployed to Vietnam, Hindsman opted to serve in the Army and was commissioned as a second lieutenant in 2000 after graduating from Appalachian State. He received a deferment of that commission to attend law school at Campbell before joining the Judge Advocate General Corps, through which he’s prosecuted cases involving soldiers. In 2013, he spent 12 months on active duty at Fort Carson, Colorado, and he still flies back as needed to fulfill his duties as a reservist. He now holds the rank of Major.

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John Hindsman (right) speaks with Mitch Carson, a member of Swain County GOP’s Executive committee. Kyle Perrotti photo

On the civilian side, Hindsman was an assistant district attorney in Vance County until 2013, when he came to Western North Carolina to serve in the same position, a position he continued to hold after current District Attorney Ashley Welch was elected in 2014. He is now a senior assistant district attorney.

While Hindsman initially indicated that he would do an interview with SMN, he later backed out, saying in a text message that “given the process of the nomination as well as the judicial status of the position,” he’d have to decline. When asked whether his decision was due to a regulation that prevents the interview or his own discretion, he said it was by his own discretion.

Sellers has been on the bench as a District Court judge for the last 10 years. Like Hindsman, she got her law degree from Campbell. After finishing law school, she came right back to Western North Carolina, where she worked as an assistant district attorney under Mike Bonfoey — Welch’s predecessor — before going into private practice. In 2014, Gov. Pat McCrory appointed Sellers to a District Court seat to fill the vacancy left by Richlyn Holt’s retirement. She was reelected in 2016 and again in 2020. She is currently slated to appear on the 2024 ballot for the same seat and would run unopposed.

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Tessa Sellers (right) talks to Cody White, an attorney who lives in Swain County. Kyle Perrotti photo

In an interview with SMN, Sellers said that her decade of experience on the bench makes her the perfect person to fill the vacancy in Superior Court.

“I’ve been on the bench now for almost 10 years, and in this position, I’ve served the community,” she said. “I want the chance to serve the community further by working with more challenging cases. I’ve always said as a District Court judge that if this position came open, I’d seek it.”

Members of the executive committees who spoke with SMN wouldn’t even hint as to who they may vote for, but they did note that they wanted to see not only the candidates’ resumes, but they also wanted to get to know each person and gauge their demeanor.

In Macon County, GOP Vice Chair Dylan Castle and at-large member Michael Lyons spoke. Castle said he wants to learn more about the candidates’ qualifications and will make a decision based on who has the best experience applicable to that seat. Lyons said he was “honored” to take part in such an important process that few get the chance to see play out. He said he’s spoken with both candidates and believes they’re both qualified.

“I’ve heard great things from legal experts on both candidates,” he said. “I think it’s a win-win situation.”

While no one from Graham or Cherokee counties could be reached, similar answers were recorded from members of the at-large committees for both Swain and Clay counties. Clay County Chairman Larry Ford, who has practiced law since 1976, said that while he thinks Hindsman is qualified and would do a fine job, he concedes that experience on the bench demands consideration.

“Being a judge is kind of an art form,” he said.

Ford was interested in judicial temperament, as well. While he didn’t say how he felt about Hindsman or Sellers, he did note that he’d be interested in considering their behavior he’s seen in court, whether on the bench or as a prosecutor.

But Ford ultimately said that either way, he’s happy to have two qualified candidates, one of whom will join what he considers a qualified slate of judges already on the bench in Western North Carolina who have been professional and competent, something he said isn’t always the case everywhere.

“We’re blessed in this neck of the woods,” he said. “I’ve been practicing long enough in North Carolina to run across a few judges who you wonder how they got out of law school. Neither of these individuals are like that.” 

As a Democrat, retired judge Danny Davis is still active in his party and has an idea of where leadership stands. He believes that Sellers is well respected enough that if she appears on the November ballot, they’ll likely sit on their hands and won’t challenge her; however, he couldn’t say the same thing with certainty about Hindsman.

“I don’t think there’s any Democrat lawyer who would want to run against Sellers,” he said. “Lawyers mostly just want qualified people on the bench.”

Attorney Bill Jones, who formerly headed up Haywood County’s Democratic Party, echoed that sentiment.

“Tessa Sellers has earned the respect of the bar,” Jones said.

The politics

Coward was appointed to his Superior Court seat in September 2013 by Republican Gov. Pat McCrory. Cherokee County attorney Leo Phillips said that prior to that, when then-Superior Court Judge James Downs announced his retirement, he, Welch, Coward and Sellers all expressed interest in the seat. Phillips said that at that time, he spoke with Welch — who was an assistant district attorney under Bonfoey at the time — who asked him to let Coward have the seat while she readied herself for a run for District Attorney. She told Phillips that because she was stepping aside, Coward would support her and her allies in any political endeavors.

“I was willing to back her all the way to attorney general,” Phillips said. “Bill never said any of this to me, but I remember having that conversation with Ashley.”

Phillips, who is supporting Sellers, said he used to back Welch, but that since she was accused by many of influencing legislators to kill a potential judicial district split that many thought would alleviate the burden on the courts in the westernmost counties, his support has waned.

Either way, when it comes to the current process to fill the vacancy, Phillips said his support of Sellers comes from his belief that she’s simply the best candidate.

“I want the person who’s been tested in the courtroom on the bench,” he said.

However, Welch — who wields sizable political power, especially in Macon County — has voiced her support for Hindsman and even appeared with him on a Zoom call during which executive committee members had the chance to ask questions of each candidate. In addition, at a Feb. 7 meet and greet with the Swain County GOP, Hindsman announced that he also had the support of Coward. Several people interviewed by SMN questioned her ardent support, noting that it could create the appearance of a conflict should he win and hear cases involving the district attorney’s office. Some even said such support is unethical. Welch declined to comment for this story.

Coward announced his retirement on Dec. 7, eight days before the filing period closed and one day after Sellers had filed to retain her District Court seat. Upon his retirement, Hindsman was ready to make a run for the seat and said in a Cherokee Scout story that he intended to seek both Cooper’s appointment and a spot on the ballot.

While there was a rumor that Hindsman had said during events early on in this process that Sen. Kevin Corbin and Rep. Karl Gillespie, both Macon County Republicans, supported him in his effort to gain a seat on the bench, SMN was unable to confirm that. Both legislators told SMN that they were not supporting either candidate as they thought it would be inappropriate for legislators to be so heavily involved in a political process to put someone in a judicial position.

However, Corbin did say that right around the time Coward announced his retirement, Coward had asked the senator if he could reach out to Gov. Cooper and ask if he’d appoint someone. Then, Hindsman made it clear that he hoped Corbin would tell Cooper about his desire to fill the vacancy.

“He was trying to get the appointment instead of the election,” Corbin said, adding that he did talk to the governor and advocate for an appointment, although he also noted that he did not advocate for Hindsman specifically and at that time he didn’t even know Sellers was interested.

“My comment to the governor’s office was to say, ‘As the senator of this district, we need a judge in this position,’” he said.

Corbin said that while some people, including Coward — who didn’t respond to multiple interview requests — encouraged him to back Hindsman, he never spoke with Welch about who he should back.

“We talked about the fact that there was an opening,” he said.

But while Corbin and Gillespie said they wanted to stay out of this process, Rep. Mike Clampitt (R-Swain) has been a fierce advocate for Sellers.

“She’s got extensive experience in Western North Carolina,” he said. “She’s handled an array of different types of cases, civil and criminal. She was the second elected Republican as judge in Western North Carolina, which I think is very important ... She’s had a great working relationship with both sides of the aisle and is very well respected and trusted. She’s made good, competent legal decisions, and it would behoove us to have her in that position to replace Judge Coward.” 

The vote

The 45 members of the executive committee will gather at 9 a.m. Saturday, Feb. 24, at the Clay County GOP headquarters. They will first determine who the committee chair will be. The chair’s role is to sign the letter to the state board of elections to let officials know who will be on the ballot. Then the state board of elections will communicate that to the counties so they can get that name on the November ballot.

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If Sellers is selected, then the same process — including Haywood and Jackson counties since they’re part of the same judicial district — will play out again to determine which Republican will appear on the ballot for her District Court seat. It is still unclear whether Democrats will put a name on the ballot for Superior Court or District Court should Sellers win the vote Saturday.

Corbin said that as soon as the vote is done and they know who will be on the ballot in November, he will call the governor’s office and request that that person be appointed. Woodhouse said she’s hoping that appointment will come in short order.

“I called the committee vote so soon on Feb. 24 because I wanted Gov. Roy Cooper to have the name of the Republican in hand quickly,” she said. “If he’s going to make an appointment and fill that seat to serve the people, I want him to know who we’re putting forward.”

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