Dispute over partisan bias could plunge the NC Supreme Court into a political fight

It’s said that a person who acts as their own lawyer has a fool for a client. Is it also true that a person who acts as the judge in their own case makes a fool of the court?

Legal experts say the North Carolina Supreme Court will look a fool if it allows individual justices to decide whether they have a conflict of interest in a politically sensitive case.

What has generated the concern is North Carolina NAACP v. Moore and Berger. The case now before the state’s high court asks whether a Republican-controlled legislature with members elected as a result of illegal gerrymandering has the authority to put constitutional amendments on the ballot. The NAACP is challenging the legality of two amendments approved by voters in 2018. One requires a photo ID to vote, the other caps the state income tax at 7 percent.

Plaintiffs have asked that two of the court’s seven justices, Phil Berger Jr. and Tamara Barringer, be disqualified from hearing the case because it is questionable whether they can be impartial. Justice Berger is the son of state Senate President Pro Tem Phil Berger, a defendant in the case, and Justice Barringer, while a state senator, voted to put the amendments in question on the ballot. The two justices have not agreed to recuse themselves for conflict of interest in the case and North Carolina judicial codes and traditions, strangely, appear to leave that decision in their hands.

The N.C. Supreme Court, seeking a way out of the quandary, has asked lawyers on both sides to provide guidance about the standards for recusal and to suggest how motions calling for disqualification could be considered more objectively. The request has brought briefs from the parties involved and a flurry of amicus briefs from constitutional law professors, the N.C. legislative Black Caucus and national experts on judicial ethics.

One brief likely to have significant weight with the court was filed last week by five retired N.C. Court of Appeals judges who also served as chairs of the state’s Judicial Standards Commission: S. Gerald Arnold, Wanda G. Bryant, Sidney S. Eagles, Jr., John B. Lewis, Jr., and John C. Martin.

The brief urges the Supreme Court to go “beyond an individual justice’s self-assessment” when a justice’s ability to be impartial is challenged. The retired judges quote a 2017 report from the Institute for the Advancement of the American Legal System that said allowing a justice to be the only and final ruler on a motion calling for his or her recusal “flies in the face of the oft-invoked, age-old proposition that no person should be a judge in his own case.”

The judges’ brief does not spell out how the review could be conducted. Presumably a decision could be reached by another justice, the remainder of the court or by a third party, such as the Judicial Standards Commission. Pressly Millen, a Raleigh attorney who filed the brief on the judges’ behalf, said, “There needs to be some procedure. It has to be spelled out. It can’t just be subjective. If it is, then you become a court in which the public has no faith and you’re the laughing stock of the nation.”

The brief also takes aim at the argument from lawyers opposed to Justice Berger’s recusal. Those lawyers argue that the justice is not sitting in judgment of his father because Sen. Berger is named only in his official capacity, not as an individual. However, the retired judges note that Sen. Berger helped push through a 2017 law that gives him and the House speaker control over all cases challenging actions by the legislature. That change moves Sen. Berger from being merely a nominal defendant in the case to an active participant, a change that heightens the potential conflict for Justice Berger.

The N.C. NAACP won its challenge to the amendments in Wake County Superior Court, but lost in a 2-1 decision in the N.C. Court of Appeals. Most legal observers think the Supreme Court is unlikely to reverse the N.C. Court of Appeals ruling even if the two justices are removed from the case.

But even in defeat, the N.C. NAACP’s case may have a major political effect if it leads to a process that disqualifies the two Republican justices. While Justice Barringer’s ties to legislation will fade with time, Justice Berger may be ruled to have an ongoing conflict in cases in which his father is a defendant.

The Supreme Court faces a dilemma. If it tries to rise above politics by forcing recusals, it may descend into a raw political fight.