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Samuel James Ervin, IV
People’s Alliance PAC 2014 Questionnaire
for North Carolina Appellate Division Judicial Candid...
2 
 
Response
I would not describe myself as either a liberal or a conservative judge (and, in fact, am
not entirely sure ...
3 
 
of the Administrative Committee, and Chair of the Nominating Committee. I am also currently a
member of the American ...
4 
 
I was a defendant in a civil action brought by a former client named Harry James Fowler
in the United States District...
5 
 
Response
I have been responsible for the drafting of more than 475 opinions since taking office as a
member of the Co...
6 
 
sentenced to death on direct appeal and in postconviction proceedings. Although I did receive
payment for my services...
7 
 
other laws) have been made in a discriminatory manner and to carefully consider any assertions
that impermissible rac...
8 
 
except to say that I can fairly and impartially apply the applicable provisions of state and federal
law.
16) Has the...
9 
 
Conduct precludes judges and justices from commenting on pending cases and from acting in
any way which might tend to...
10 
 
20) For whom did you vote in the 2008 and 2012 presidential and gubernatorial
elections?
Response
I do not believe, ...
Paid for by Ervin for Supreme Court
Samuel James Ervin, IV
517 Lenoir Street
Morganton, North Carolina 28655
Telephone: (8...
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Samuel J Ervin 2014 PA-PAC Questionnaire

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Samuel J Ervin IV, candidate for NC Supreme Court Associate Justice, 2014 People's Alliance PAC Questionnaire

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Transcript of "Samuel J Ervin 2014 PA-PAC Questionnaire"

  1. 1. 1    Samuel James Ervin, IV People’s Alliance PAC 2014 Questionnaire for North Carolina Appellate Division Judicial Candidates Candidate’s name: Samuel James Ervin, IV Residence address: 517 Lenoir Street, Morganton, North Carolina 28655 Cell-phone Number: (828) 455-4134 e-mail: ervingarden@bellsouth.net Preliminary Statement Although I am aware that, according to a relatively recent decision of the United States Supreme Court and relatively recent amendments to the Code of Judicial Conduct, I am allowed to take positions concerning various public policy issues during my campaign for judicial office, I do not believe that this fact absolves me from the responsibility for deciding which, if any, of the questions posed in the questionnaire I believe that it is appropriate for me to answer given the overarching importance of ensuring that the judicial system retains the confidence of the public. The principal responsibility of any judge, including a Justice of the Supreme Court of North Carolina, is to decide the cases that come before the court fairly and conscientiously based on the facts contained in the record and a proper understanding of the applicable law. A judge is required to make sure that each litigant not only receives a fair hearing in actuality, but also believes that he or she has received a fair hearing. I do not believe that a litigant in a case before the Supreme Court involving a constitutional provision, statutory provision or common law principle that implicates a disputed question of public policy would believe that he or she had received a fair hearing if one of the justices responsible for deciding that case had made a public pronouncement concerning whether the relevant constitutional provision, statutory provision or common law principle at issue in that case was consistent with considerations of sound public policy. Thus, in spite of the changes in the law that would allow me to answer policy-related questions without violating the Code of Judicial Conduct, I do not believe that a candidate for election to the Supreme Court should publicly express an opinion about the wisdom of particular constitutional provisions, statutory provisions or common law principles and will refrain from expressing opinions concerning those subjects and other public policy issues in responding to this questionnaire. About you: 1) Where were you born and where have you lived? Response I was born in Morganton, North Carolina, and have lived there all of my life except for the years during which I attended college and law school. 2) Are you conservative or liberal? Please choose one and then explain your answer.
  2. 2. 2    Response I would not describe myself as either a liberal or a conservative judge (and, in fact, am not entirely sure what it means to be either a liberal or a conservative judge). I believe that the ultimate task of an appellate judge is to carefully review the record, study the applicable law, and decide each case on the basis of an appropriate application of the law to the facts rather than on the basis of ideological predispositions or similar factors. Simply put, I do not believe that it is appropriate for an appellate judge to attempt to further any personal ideological agenda in ruling on particular cases. I believe that I have an established reputation for making fair and impartial decisions which reflect an attempt to understand and properly apply the applicable law during my service as a member of the Utilities Commission and the Court of Appeals. 3) Please describe how your religious and philosophical beliefs may affect your conduct and decision making if you are elected. Response I have a simple judicial philosophy, which stems from my fundamental belief that all persons have a right to a fair hearing before a judge who believes that each case is of critical importance to the persons involved, who understands that the courts should be a place where each person is treated equally under the law, and who is not beholden to any particular person, entity, or group. The ultimate job performed by all judges, including Justices of the Supreme Court, is to fairly and impartially apply the law to a specific set of facts and to enforce the rights of all parties under the law without favoring any party or interest and without attempting to effectuate or further any political, ideological, philosophical, or religious agenda while deciding the cases that come before them. Although I am, as is discussed in greater detail below, active in my church and although I have been actively involved in the political process in the past, I believe that my record as a Utilities Commissioner and a Judge of the North Carolina Court of Appeals indicates that I have worked very hard to act in accordance with the judicial philosophy that I have outlined in response to Question No. 3 and that I can fairly and impartially decide even the most complicated and controversial cases on the basis of a dispassionate analysis of the law and the fact. 4) Please list the organizations (educational, social, charitable, cultural, political, religious, etc.) you have joined or supported. If you have held an office in any of these organizations, please describe. Response I have belonged to, been active in, and supported many organizations over the years and could not possibly list all of them in response to Question No. 4. For that reason, my answer to this question will focus on certain organizations to which I have devoted a substantial amount of time or resources at different points in my life. At the present time, as has been the case for many years, I am a member of the First Presbyterian Church, where I currently serve as a member of the Administrative Committee and have, in the past, served as a deacon, elder, Chair of the Board of Deacons, Chair of the Benevolence, Finance, and Stewardship Committee, Chair
  3. 3. 3    of the Administrative Committee, and Chair of the Nominating Committee. I am also currently a member of the American Bar Association, the North Carolina Bar Association, the Twenty-Fifth District Bar and the Wake County Bar Association. I served as President of the Twenty-Fifth District Bar in 1998-1990 and have been a member of a number of bar-related committees and task forces at different times in the past. A number of years ago, I served as a member of the Board of Directors of Lawyers Mutual Liability Insurance Company. Many years ago, I served on the committee of the Burke County United Way that was responsible for evaluating organizational requests for financial support. I served as Chair of the Burke County Democratic Party from 1989 until 1993. I regularly contribute to the First Presbyterian Church of Morganton, Davidson College, Harvard Law School, the State Employees Combined Campaign, the North Caroliniana Society, and a number of other entities. 5) If you have had an occupation other than law, please describe the occupation and the work you performed. Who were your employers? Response I served as a member of the North Carolina Utilities Commission from 1999 until taking office as a member of the North Carolina Court of Appeals in 2009. The Utilities Commission is a quasi-judicial body that is responsible for regulating the rates charged and terms and conditions of service provided to retail customers by investor-owned electric, natural gas, telecommunications, and water and sewer utilities. While a member of the Utilities Commission, I heard and decided many important cases, including proceedings in which the Utilities Commission approved rate reductions for Dominion North Carolina Power and Duke Energy and implemented the energy legislation passed by the General Assembly in 2007. I was also heavily involved in the drafting of the Clean Smokestacks Act and the 2007 energy legislation. I also served as Chair of the Committee on Electricity of the National Association of Regulatory Utility Commissioners (NARUC) and as a member of NARUC’s Task Force on Climate Policy. Although I had a number of summer jobs during the time that I was in junior high school, high school, and college and although I have officiated high school, middle school, and age group soccer matches off and on for nearly two decades, I do not believe that information concerning those activities is responsive to Question No. 5 and have not included such information in this response, although I will be happy to supplement my response to include this information upon request. 6) Have you ever been convicted of a criminal offense other than a minor traffic offense (such as speeding)? If the answer is yes, please describe the circumstances and the outcome. Response I have never been convicted of a criminal offense as defined in Question No. 6. 7) Have you personally ever been the plaintiff or defendant in a lawsuit? If the answer is yes, please explain the circumstances and the outcome of the case. Response
  4. 4. 4    I was a defendant in a civil action brought by a former client named Harry James Fowler in the United States District Court for the Western District of North Carolina against a number of individuals, including me, in approximately 2002. In that action, Mr. Fowler alleged that I had failed to properly represent him in a criminal case in which he was convicted of various child sex offenses and received a lengthy sentence of imprisonment. After I filed an answer denying Mr. Fowler’s allegations (which were baseless) and moved to dismiss Mr. Fowler’s complaint on the grounds that the applicable statute of limitations had expired, the court dismissed Mr. Fowler’s complaint, a decision which was affirmed by the United States Court of Appeals for the Fourth Circuit in 2003 (the United States Supreme Court subsequently denied Mr. Fowler’s request for certiorari review). In addition, during the time that I served on the Utilities Commission, I was named as a party defendant in a number of judicial review proceedings brought pursuant to the relevant provisions of the Telecommunications Act of 1996. However, I have not provided information concerning those proceedings in response to Question No. 7 given that they were nothing more than appeals to the federal courts seeking judicial review of certain decisions that the Utilities Commission had made in the course of carrying out its statutory responsibilities and did not involve the assertion of any sort of claim by or against me in my individual capacity. About your practice of law: 8) Please describe your practice as a lawyer. Be specific. Describe the areas of your practice and your specialties. If, over time, your practice has evolved or changed, describe the changes. Describe your various client bases as a part of your answer. Response I engaged in the private practice of law with the Morganton, North Carolina, firm of Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., and its predecessors from 1981 until taking office as a member of the Utilities Commission in 1999. The law firm of which I was a member engaged in the general practice of law and handled a wide variety of matters. As a private practitioner, I represented individuals and businesses (most of which operated in the general vicinity of Morganton) in criminal cases, employment cases (including the representation of state employees), business disputes, personal injury cases, administrative matters (such as licensing and professional disciplinary cases), and utility-related matters. Among other things, I did the majority of my firm’s appellate work, so that I regularly appeared before the North Carolina Court of Appeals and the Supreme Court. Over time, the bulk of my practice became focused on the representation of a statewide association of manufacturers before the Utilities Commission, appellate litigation, and the defense of serious criminal cases (including capital trial, appellate, and post-conviction work). 9) If you have been a member of an appellate division court, please choose two decisions you have written for the court which you feel best illustrate your learning, values, skills, outlook, and temperament as a jurist. If the decisions are published, you may simply cite them here. If a decision you have selected is unpublished, please provide us with a copy. Please explain why you selected these decisions and tell us how they demonstrate your particular fitness to hold the judicial office you are seeking.
  5. 5. 5    Response I have been responsible for the drafting of more than 475 opinions since taking office as a member of the Court of Appeals in 2009. Although it is difficult for me to select two cases from that number as representative of my work, you might wish to examine State v. Ward, 199 N.C. App. 1, 681 S.E.2d 354 (2009), and Sugar Creek Charter School v. State, ___ N.C. App. ___, 712 S.E.2d 730 (2011), as opinions which reflect the manner in which I analyze legal issues. The Ward decision, which was later affirmed by the Supreme Court, held that the State was not entitled to attempt to establish that prescription medications were prohibited controlled substances based solely on a visual examination of the medications in question rather than on the basis of the results of a chemical analysis. The Sugar Creek Charter School decision upheld the constitutionality of the existing statutory provisions that allow local school boards to refrain from sharing capital construction monies with charter schools. I believe that these opinions show that I follow the law, that I have the ability to address complex issues arising in both the criminal and civil context in an intellectually coherent way, and that I am able to thoroughly explain the basis for my decisions. I would be happy to provide additional citations if that would be helpful in evaluating my candidacy. 10) If you have not been a member of an appellate division court, please describe your practice in that division. Please provide us with the citations to two appellate decisions in cases in which you advocated as lead attorney for one of the parties. The decisions you choose should best illustrate the learning, values, skills, outlook, and temperament you would bring to the court as the holder of the judicial office you seek. If a decision you have chosen is unpublished, please provide us with a copy. Please also provide us with a copy of a portion of the brief written by you that demonstrates your advocacy in one or both of the decisions you have selected. Explain why you selected these decisions. Response As a result of the fact that I have served as a member of the Court of Appeals since taking office on January 1, 2009, I do not believe that I am required to respond to Question No. 10. 11) Please describe the nature and extent of any pro bono work you have done. Is there a pro bono matter to which you have contributed that best illustrates your values as a lawyer and you as a person? Response As a member of a general practice firm in a small town, I did a considerable amount of pro bono work. Among other things, I provided legal advice to my church and spent a substantial amount of time serving as a member of a disciplinary committee responsible for investigating allegations made against a minister who pastored another church in the region in which I reside. In addition, I advised many people about a wide variety of issues, including employment disputes, housing disputes, collections issues, and similar matters, without charge. Finally, I represented a number of individuals who had been convicted of first degree murder and
  6. 6. 6    sentenced to death on direct appeal and in postconviction proceedings. Although I did receive payment for my services in these cases from the State, the number of cases that I handled and the fact that the State does not pay an attorney’s normal hourly rate for representing indigent criminal defendants means that this work closely resembled more traditional pro bono work. I believe that this pro bono work demonstrates that I am willing to make my professional skills available to persons in crisis and to attempt to help such persons deal with genuinely difficult issues. Concerning law and policy: 12) What are your views on the death penalty and the way death penalty cases are handled in North Carolina? As a matter of the administration of justice, what should the courts and legislature do about the death penalty? Response The state and federal courts have repeatedly upheld North Carolina’s capital sentencing statues against various constitutional challenges. For that reason, the extent to which the death penalty should or should not be retained in North Carolina is a question for the General Assembly and not the judiciary. As I indicated in my preliminary statement, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. Moreover, the actual manner in which North Carolina’s capital sentencing statutes are interpreted and applied is a subject which comes before the Supreme Court. According to Canon 3.A(6) of the Code of Judicial Conduct, I am precluded from commenting on the merits of cases which are pending in the state and federal courts in North Carolina. Given that the Code of Judicial Conduct precludes judges and justices from commenting on pending cases and from acting in any way which might tend to impair public confidence in the integrity and impartiality of the judicial system, I do not believe that it would be appropriate for me to comment on the manner in which North Carolina’s capital sentencing statutes should be applied except to say that I can fairly and impartially apply the applicable provisions of state and federal law. 13) Do you perceive any racial discrimination in the criminal justice system? If your answer is yes, what should be done to combat it? Response I strongly believe that the criminal laws should be applied equally to all citizens without regard to race, ethnicity, or any other similar characteristic. Any decision to investigate, charge, prosecute, or convict or acquit a particular individual on race-related grounds would be fundamentally inconsistent with the manner in which our criminal justice system should operate. Although I would like to believe that American society in general and the criminal justice system in particular has become free from the disgrace of racial discrimination, we have not attained that goal yet. As a result, members of the judiciary ought to be constantly on the lookout for any indication that decisions regarding the enforcement of the criminal laws (and, for that matter, all
  7. 7. 7    other laws) have been made in a discriminatory manner and to carefully consider any assertions that impermissible racial discrimination has occurred. 14) What are your views on the rights (including whether any such rights exist) of homosexual persons to marry? Did you vote for or against Amendment One? Response As I have previously indicated, I do not believe that it is appropriate for judicial candidates to express opinions concerning disputed policy or political issues. In addition, Canon 3.A(6) prohibits members of the judiciary from making public comments on issues which are pending in the state and federal courts with jurisdiction in North Carolina. In light of these factors, I did not take a public position concerning the merits of the constitutional amendment adopted by the voters in May, 2012. I believe that it is particularly important for members of the judiciary to refrain from making such comments given that the North Carolina courts may well be called upon to construe and apply the constitutional amendment in question or to consider whether that amendment is consistent with one or more provisions of the United States Constitution. As should be obvious, a litigant defending or taking an expansive view of the amendment might not believe that a judicial official who had opposed its adoption could fairly decide his or her claim. Similarly, a litigant advocating the invalidation of or the adoption of a narrow construction of the amendment might not believe that a judicial official who had openly supported the amendment could fairly decide his or her claim. As a result, I have not taken a public position concerning the amendment. 15) In your view, should citizens be required to provide elections officials with some form of official identification before they are allowed to vote? Response I am aware that the General Assembly has enacted legislation containing a statutory requirement that North Carolina citizens present an approved means of identification as a prerequisite for exercising their right to vote. I firmly believe that protecting the right of all citizens to exercise their fundamental right to vote is of critical importance and that fraudulent election-related practices undermine our system of government. I am also aware that the validity of the photographic identification requirement and certain other voting-related measures enacted by the 2013 General Assembly have been challenged as violative of various constitutional provisions in pending litigation. According to Canon 3.A(6) of the Code of Judicial Conduct, I am prohibited from commenting on the merits of any case which is pending before the state or federal courts in this jurisdiction. In addition, as I indicated in my preliminary statement, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. As a result, given that the Code of Judicial Conduct precludes judges and justices from commenting on pending cases and from acting in any way which might tend to impair public confidence in the integrity and impartiality of the judicial system, I do not believe that it would be appropriate for me to comment on the merits of the photographic identification requirement adopted by the 2013 General Assembly
  8. 8. 8    except to say that I can fairly and impartially apply the applicable provisions of state and federal law. 16) Has the federal Voting Rights Act run its course in North Carolina? Please explain your answer. Response As you know, the United States Supreme Court has recently invalidated the existing preclearance requirements contained in the Voting Rights Act on the theory, as I understand it, that the factual basis for these statutory provisions had become stale and that these provisions were, therefore, violative of the United States Constitution. However, it is my understanding that attempts are being made in Congress to enact new preclearance provisions that will pass constitutional muster under the recent Supreme Court decision. Obviously, as I have already indicated, the protection of the right of all citizens to exercise their fundamental right to vote is of critical importance. Simply put, no citizen should be denied the right to vote or have their ability to fully participate in the political process impaired on race-related grounds. The extent to which new preclearance provisions should be adopted is, however, a policy-related matter for the Congress rather than a judicial decision to be made by the state or federal courts. As I indicated in my preliminary statement, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. More specifically, given that the Code of Judicial Conduct precludes judges and justices from acting in any way which might tend to impair public confidence in the integrity and impartiality of the judicial system and given my concern that a decision on the part of any judge to comment on such questions could impair public confidence in the fairness and impartiality of the judiciary, I do not believe that it would be appropriate for me to comment on the extent, if any, to which Congress should revise the preclearance provisions of the Voting Rights Act in light of the Supreme Court decision which I have discussed above. 17) In its recent decision in Koontz v. St. Johns River Water Management District, did the United States Supreme Court signal a change in its approach to zoning and land use regulation? Please explain your answer. Response Both the Court of Appeals, on which I currently sit, and the Supreme Court, on which I seek to sit, are required, on a fairly regular basis, to ascertain whether land use planning decisions made by municipal and county governments are violative of state statutes or federal or state constitutional provisions. For that reason, the extent to which the Koontz decision did or did not indicate a change in the level of federal constitutional scrutiny that will be applied in reviewing challenges to such decisions is a matter which is likely to come before the North Carolina appellate courts. In the event that I was to take a position concerning the issue posed in Question No. 19 and was then called upon to consider that same issue in a subsequent case, one or the other of the litigants in that proceeding might question my ability to fairly and impartially consider the position which he, she, or it was espousing. Given that the Code of Judicial
  9. 9. 9    Conduct precludes judges and justices from commenting on pending cases and from acting in any way which might tend to impair public confidence in the integrity and impartiality of the judicial system, I do not believe that it would be appropriate for me to comment on the extent, if any, to which Koontz signals a change in the degree to which municipal and county land use planning decisions may be subject to a successful federal constitutional challenge. 18) In your view, should state agencies with licensing, environmental protection, consumer protection, or similar functions make the final decisions in enforcement or other contested cases or should the final decisions in such matters be made by administrative law judges? What should North Carolina’s law and policy be with regard to the deference courts afford regulatory agencies? What should our state’s law and policy be with regard to who is an “aggrieved person” in cases environmental law violations? Response The authority of state agencies to make final regulatory decisions, the extent to which those decisions are subject to judicial review, and the criteria which must be satisfied in order for a litigant to have standing to challenge an action taken by a regulatory agency are, in the first instance, policy-related matters to be determined by the General Assembly. In addition, the extent to which a particular litigant has standing as a constitutional matter is an issue which regularly comes before the judicial branch. As I indicated in my preliminary statement, I have opted to refrain from commenting on policy-related issues during the course of my campaign for the Supreme Court on the theory that expressing opinions concerning such subjects could adversely affect the perception that I am able to fairly and impartially decide cases on the basis of a dispassionate analysis of the applicable law and the facts. In addition, the provisions of Canon 3.A(6) of the Code of Judicial Conduct prohibits me from commenting about legal issues which are pending in the state and federal courts in North Carolina. Given that the Code of Judicial Conduct precludes judges and justices from commenting on pending cases and from acting in any way which might tend to impair public confidence in the integrity and impartiality of the judicial system, I do not believe that it would be appropriate for me to comment on the extent to which state regulatory agencies should have the ultimate authority for making regulatory decisions, the extent of the judicial review authority which should be granted to the courts in connection with appeals from regulatory agencies, or the rules which should be applied in determining the extent to which particular individuals and groups to challenge administrative or regulatory decisions have standing to do so. Your politics: 19) How are you registered to vote? Have you ever changed your registration? If you have changed your voter registration, please explain why. Response I have been a registered Democrat from the time that I initially registered to vote in 1973 until the present.
  10. 10. 10    20) For whom did you vote in the 2008 and 2012 presidential and gubernatorial elections? Response I do not believe, given the nonpartisan nature of judicial races, the privacy of the ballot box, and the fact that judges are generally supposed to refrain from endorsing other political candidates (except when they are candidates themselves) that it is appropriate for me to answer this question. 21) Have you ever been active in the campaign of a candidate for elective office (by active we mean acted as campaign manager, treasurer, or paid staff, or contributed more than $2,000)? If the answer is yes, please identify the candidate or candidates and the offices they sought Although I have been involved in a number of political campaigns on a volunteer basis during my life, I believe that I was “active” (as that term is used in Question No. 13) in Rufus Edmisten’s gubernatorial campaign in 1984 and Les Roark’s congressional campaign in 1986 and may have been “active” in Alexander “Sandy Sands’” congressional campaign in 1994 .
  11. 11. Paid for by Ervin for Supreme Court Samuel James Ervin, IV 517 Lenoir Street Morganton, North Carolina 28655 Telephone: (828) 455-4134 E-Mail Address: judgeervin@ervinforsupremecourt.com Education J.D., cum laude, 1981. Harvard Law School, Harvard University, Cambridge, Massachusetts. A.B., magna cum laude, 1978. Davidson College, Davidson, North Carolina. Graduate, 1974. Freedom High School, Morganton, North Carolina. Employment History Licensed to practice law in 1981. Practiced with the Morganton, North Carolina, firm of Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., and its predecessors, from 1981 to 1999. Practice involved a wide range of civil and criminal litigation in the state and federal courts and before administrative agencies, including frequent appearances before state appellate courts. Commissioner, North Carolina Utilities Commission, from 1999 until 2009. Chairman of the Nuclear Issues Subcommittee of the Committee on Electricity of the National Association of Regulatory Utility Commissioners (NARUC) from 2002 until 2005. Chairman of the NARUC Committee on Electricity from 2005 until 2007. Member, Board of Directors, Organization of PJM States, Inc., from 2006 through 2008. Judge of the North Carolina Court of Appeals from January 1, 2009, until the present. Selected Professional Activities Board of Directors, Lawyers Mutual Liability Insurance Company of North Carolina 1994-1999 Personal Information Born Morganton, North Carolina, November 18, 1955. Married to Mary T. Ervin. Two step- children and two children. Selected Religious and Civic Activities Member, First Presbyterian Church, Morganton, North Carolina Active Deacon, 1982-1984; 1987-1989; Active Elder, 1989-1992, 1998-2001, 2004-2007, 2011-2013

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