Any plaintiff would be alarmed if they went before a panel of judges only to find that one was the defendant’s close relative and another took part in the offense alleged in the case.
That’s what the plaintiffs see happening in the case of NC NAACP v. House Speaker Tim Moore and Senate President Pro Tempore Phil Berger. The case, an appeal of a 2-1 Court of Appeals ruling against the plaintiffs, involves a complaint about the General Assembly’s power.
The plaintiffs contend that after a federal court found that many members of the Republican-led General Assembly were elected from districts created by illegal racial gerrymandering, the legislature lost its authority to put constitutional amendments on the 2018 ballot. The plaintiffs are challenging the legality of two amendments that voters approved – one capping the state income tax and another requiring a photo ID to vote.
In a motion that was to be heard last week, but was abruptly postponed, the plaintiffs ask that two members of the seven-member Supreme Court be disqualified from the case. One of the justices cited is Tamara Barringer, a former Republican state senator who voted in favor of putting the challenged amendments on the ballot. The other is Phil Berger Jr., the son of the Senate leader who is a defendant in the case.
The motion quotes the N.C. Code of Judicial Conduct, which calls for the disqualification of a judge when the judge “has a personal bias or prejudice concerning” a case, or has a relative who is a party in the proceeding.
Kimberley Hunter, an attorney for the plaintiffs, said she originally thought a motion wouldn’t be necessary. She told the Editorial Board, “We assumed the justices would recuse themselves because we thought the conflict would be clear.”
The political conflict may be obvious, but the legal one is anything but clear. There is little precedent for the situation, especially the instance of a Supreme Court justice participating in the final judgment of a case in which his father is a defendant.
Thomas Metzloff, a Duke Law School professor who studies judicial ethics, said the motion “has potential merit,” but it presents a practical problem, especially regarding Justice Berger. “He can’t have to recuse himself every time something with the legislature is involved,” Metzloff said.
In general, judges police themselves on conflicts of interest, or the appearance of such, and Justice Berger apparently does not see a conflict. He likely agrees with his father’s lawyers, who argue that Sen. Berger is being sued in his official capacity and not as an individual. That is a valid point no matter how awkward the optics.
Barringer’s standing is more clear cut. Lawmakers who become judges shouldn’t be barred from ruling on issues they previously voted on. They may have voted out of party loyalty rather than personal conviction, or they may have changed their mind.
We understand the plaintiffs’ concerns. It’s natural to suspect that Berger and Barringer won’t be impartial in this case. But the issue seems more a matter of politics – or rather the politicization of the law.
Republican lawmakers under Sen. Berger’s leadership have hastened to politicize the courts. They ended public financing of judicial elections, added partisan labels to judicial elections and reduced the Court of Appeals from 15 to 12 to keep Democratic Gov. Roy Cooper from replacing retiring judges.
That a former Republican state senator and the son of the Senate leader are now on the Supreme Court court testifies to its political turn. But the remedy for what appears to be a loss of impartiality may be what caused it – politics.
If North Carolinians truly value independent state courts, they will vote for legislative candidates who support that goal and will pass laws that serve it. Until then, we’ll have to rely on the hope that some of those in robes are not entirely politicians.