State Supreme Court to consider possibility of involuntary recusal for Justices Berger and Barringer

Court asks parties for briefs in case challenging 2018 constitutional amendments

The Supreme Court of North Carolina issued an order Tuesday directing the parties in the case of NAACP v. Moore and Berger to submit new briefs addressing questions surrounding the recusal of justices.

The order, which the court issued on its own motion, comes in a case in which plaintiffs have moved for two members of the court – Justices Phil Berger, Jr. and Tamara Barringer – to voluntarily disqualify (or “recuse”) themselves from participation.

The order asks the parties to address the procedure the court should use in considering a recusal motion and then spells out a series of possible questions, including whether the court “has the authority to require involuntary recusal of a justice who does not believe that self-recusal is appropriate.”

“We appreciate the opportunity to provide briefing on this important issue,” Kym Hunter, a senior attorney at the Southern Environmental Law Center, representing the plaintiffs, told Policy Watch in an email. “The integrity of our court system is essential to a fair and just North Carolina.”

Plaintiffs filed the lawsuit against House Speaker Tim Moore and Senate President Pro Tem Berger, Sr. in their official capacities, challenging a pair of constitutional amendments dealing with the subjects of voter ID and the state income tax cap. The amendments were approved by the General Assembly in 2018, placed on that November’s ballot, and ultimately approved by a majority of voters.

The voter ID amendment requires voters to present a photo ID from an approved list for in-person voting. The tax cap amendment lowered the state’s maximum personal income tax rate from 10% to 7%. The plaintiffs argued that the amendments must be found unconstitutional because they were approved and placed on the ballot by lawmakers who were elected from from legislative districts that were determined by a federal court to have been unlawfully gerrymandered.

In addition to the amendments themselves, the case could determine the fate of the statute implementing the voter ID amendment that lawmakers enacted over a gubernatorial veto during a lame-duck session that took place after Republicans lost their veto-proof “supermajorities” in the General Assembly in the 2018 election. Earlier this month, a divided Superior Court panel found that law unconstitutional in the case Holmes et al. v. Moore et al., holding that that “ the Republican majority, in passing SB 824, target[ed] voters who, based on race, were unlikely to vote for the majority party. ” Moore’s office has indicated that lawmakers would appeal the decision.

As Policy Watch previously reported, the NAACP v. Moore and Berger case arrived at the high court after a three-judge panel of the state Court of Appeals reversed a lower court ruling in the plaintiffs’ favor.

Once at the Supreme Court, plaintiffs moved for Justices Phil Berger, Jr. and Tamara Barringer to recuse themselves from the case because of Berger Jr.’s connections with his father — a named defendant — and Barringer’s previous service in the state Senate, where she voted to approve the challenged amendments in 2018. Berger and Barringer, both Republicans, won election to the state Supreme Court in 2020.

The North Carolina Code of Judicial Conduct requests judges’ recusal when an individual within three degrees of relationships is a party to a case.

Ellen Murphy, a professor teaching legal ethics at Wake Forest Law School, said the state code of judicial conduct makes it clear that Berger, Jr. should recuse himself due to the “obvious conflict of interest.”

She emphasized that judges and justices need to act in a way that promotes public confidence in the impartiality of the judiciary.

“The authority of a court comes from the perspective of the public,” Murphy said. “So when we analyze this from the lens of the public, the public sees a father and son, and they see that impartiality is not possible.”

Murphy added that without Berger’s recusal, the plaintiffs’ rights to a fair and impartial trial could be impaired. “Plaintiffs shouldn’t have to pay the price for the fact that you have a father and son, who are in these two roles that creates a conflict of interest,” she said.

In Tuesday’s order, the Supreme Court authorized the parties to submit briefs within 30 days that would address a variety of questions related to such matters as:

• involuntary recusal practices in federal courts and courts of other states,
• the court’s authority and enforcement mechanism of involuntary recusal,
• the Supreme Court’s past practices for recusal decisions,
• differences between a Supreme Court justice’s recusal and that of a trial court judge or lower appellate court judge,
• whether the justices who are the object of the recusal motion should participate in ruling on it,
• the effect of justices’ “duty to sit” on a recusal decision,
• whether written rules should be adopted to govern the recusal of a Supreme Court justice
• whether any rules adopted should incorporate a process for making findings of fact, what proof is needed and who should bear the burden of proof.

Murphy said, by seeking input from the defendants and plaintiffs, the state Supreme Court is asking substantive questions that “highlight the complicated nature of involuntary recusal in our self-regulated profession.”

The oral argument for the NAACP v. Moore case in the state’s highest court was originally scheduled for late August. In the absence of a response from either justice to the recusal motions, the Supreme Court pulled the case from the calendar shortly before the scheduled hearing.

Democrats hold a slight advantage of 4–3 on the state’s highest court. Any recusal, including the disqualification of any justice in determining whether to impose an involuntary recusal, could have a significant bearing on the results of the case.

This case could also set a precedent for cases involving Berger, Sr. as a legislative defendant in the future. Currently, pending in the Supreme Court is another case, Community Success Initiative v. Moore and Berger, in which appellant plaintiffs are asking the Supreme Court to reverse the Court of Appeals ruling and uphold the lower court ruling to allow those with felony convictions to vote if they’re serving parole, probation and post-release supervision.