NC Newsline—Democrats are again calling for Justice Phil Berger Jr. to recuse himself from two high-profile cases involving his father, state Senate leader Phil Berger. Their calls follow a ruling by the North Carolina Supreme Court on Friday, which denied Democratic Gov. Roy Cooper’s motion seeking Berger Jr.’s recusal.
In the two cases, Cooper is challenging laws passed by the General Assembly that remove his authority to appoint members to various boards and commissions. One of these laws, currently under injunction by a lower court, would significantly redesign state and local election boards, transferring all appointments to legislative leaders, including Senator Berger, who is named as a defendant in both cases.
“By trying to take control of them, Senator Berger is trying to further rig our election system against the voters,” said Anderson Clayton, the North Carolina Democratic Party chair, during a press conference Thursday morning. “They see the writings on the wall that they’re going to lose their supermajority and lose the governor’s race in November, and now they are hell bent on passing and locking in legislation and court rulings that take away the power of our vote and coronate themselves.”
Republicans hold a supermajority in the North Carolina General Assembly, allowing them to override any vetoes from the governor.
Rep. Marcia Morey (D-Durham), a former chief district court judge, said she ordered recusals even if judges were Facebook friends with lawyers involved in cases before them. Morey said Justice Berger Jr.’s involvement in the case damages public confidence in the judicial system.
“When you have a justice sitting on that court listening to his father, who is a party in a case, argue his side should win, that is not impartial, that is not unbiased, that is a real detriment to the fairness of our system,” Morey said.
“There is no reason that [Berger Jr.] should not recuse himself, and the rest of the Republican majority on that court should not take cover because he refuses to. Ethics are most at stake in our courts, and they’re being sorely questioned right now.”
Even if Berger Jr. had recused himself, the cases would still have been heard by a majority of Republican justices, as the party currently holds a 5-2 majority on the state’s high court.
Earlier this year, Justice Anita Earls, one of the two Democrats on the court, rejected a request from Republican legislative leaders for her to recuse herself from the 30-year-old Leandro school funding case. Earls had been involved in the case before her 2018 election to the court.
But Anderson said that Justice Earls’ situation is different because she does not have a family member before the court who would directly benefit from her decisions.
“What I think is important here is that Anita Earls did not have someone, a member of her family, that was before the court that would benefit from any of the decisions that were made by that court. Phil Berger, Sr. is in direct alignment with the decision that’s made from this court today, and he would personally benefit.”
The law in question does not represent the first time Republicans have sought changes to election boards. Following Cooper’s election in 2016, Republican lawmakers introduced a similar bill, which the state Supreme Court struck down, ruling that it violated the state constitution’s separation of powers clause.
In 2018, Republicans proposed a constitutional amendment to restructure election boards, but more than 61% of voters rejected it. And last year, Republicans overturned Cooper’s veto and enacted a bill that overhauled the boards.
Cooper sued, and in March, a panel of Superior Court judges blocked the law from taking effect.
Justice Berger, Jr. has long faced calls to recuse himself from cases. In 2021, plaintiffs filed a motion to disqualify he and another justice from hearing a lawsuit challenging two constitutional amendments on a voter ID law and an income tax cap.
The North Carolina Code of Judicial Conduct states that a judge should disqualify themselves when a person “within the third degree of relationship” to either themselves or their spouse is a part of the proceeding.
Critics have long argued that Berger, Jr. and his father are within a first-degree relationship.
Commissioner Martin E. Moore of Buncombe County, who is also a candidate for the North Carolina Court of Appeals, reiterated that position at Thursday’s press event. “The court’s decision that a sitting member of the bench does not have a conflict of interest when its own father sits as President Pro Tem of the state Senate is not only disappointing, it leaves the people of North Carolina to wonder if extremism once again prevails over transparency in an independent judiciary,” said Moore.
“The court has an opportunity to restore people’s confidence in our judiciary by simply asking a colleague to recuse themselves from a case involving his father as a party,” Moore added.
