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This edition of the Legal Institute Sidebar is unusual. Rather than analyze a case, its underlying merits, and its possible impact within the business community, it analyzes a recusal motion. That motion happens to have been filed – and remains pending – in a case before the NC Supreme Court. The motion targets the two newest members of the Court, Justice Tamara Barringer and Justice Phil Berger, Jr.
The case in which the motion arose is NC NAACP v. Moore. Substantively, the case challenges the validity of two constitutional amendments adopted by voters in 2018. One of those amendments would lower the cap on personal and corporate income tax rates to 7 percent (the Constitution already caps the rate at 10 percent), and the other would permit the General Assembly to enact legislation requiring voters to present a valid photo ID to vote, along with some exceptions to this requirement.
The basis of the challenge is that the legislature which proposed the amendments to the voters included members whose districts were, in separate litigation, ruled invalid due to racial gerrymandering. The Wake County Superior Court ruled that the legislature was not constitutionally representative of the electorate, and, thus, invalidated the amendments. The NC Court of Appeals reversed, citing caselaw that ran directly counter to the Superior Court judge’s order.
The case itself presents a reasonably straightforward issue, but the recusal issue raises more arcane points of due process, judicial independence, and judicial ethics. To give you some idea of how hotly contested the recusal motion is, it has now attracted no fewer than nine amicus curiae briefs. Those come from law professors, the Governor, former chairs of the Judicial Standards Commission, the NC Legislative Black Caucus, and a variety of NGOs.
The basis for the disqualification motion is different for each of the targeted Justices. The NAACP has argued that Justice Phil Berger, Jr. should be disqualified because of his familial relationship with the leader of the NC Senate, who is by virtue of his position a named defendant in the case. For Justice Tamara Barringer, the motion notes that she was a member of the legislature when it approved the legislation proposing that the constitutional amendments be voted on by the public.
North Carolina’s Code of Judicial Conduct encourages a judge to recuse himself or herself from hearing a case where that judge’s impartiality may reasonably be questioned. According to an op-ed written by three former Chief Justices and published in the News & Observer, the Court has historically operated on the principal of self-disqualification or self-recusal. In other words, the decision as to whether a justice can consider the matter before the court fairly and objectively has been left to the conscious of each justice.
That is why a September 28th order from the Court took some observers by surprise. The order called for the parties to file briefs with their thoughts on a myriad of recusal-related questions, including whether the Court has the authority to require involuntary recusal of a justice. According to the former Chief Justices, there have been no instances in which recusal was considered a matter for the entire court to resolve. They point out that the Supreme Court of the United States employs a similar system of individual accountability. Clearly, at least some members of the Court are contemplating changing that.
The briefs filed by the parties and the amici can essentially be divided into two schools of thought. Those who seek to disqualify the two justices cite the ethical and due process implications of factors which may influence or call into question the judges’ impartiality. Those who oppose disqualification point out that North Carolina law does not provide for compulsory recusal (although there is a statute providing disqualification under certain circumstances in criminal cases). They further note that recusal in North Carolina has always been left to a judge’s own self-assessment of whether they can approach a case impartially.
How the Court approaches the resolution of this motion may have far-reaching effects. For starters, one has to wonder whether it will create a more caustic environment among the members of our state’s highest court. Will it attract more frequent recusal motions filed by advocates who believe they may be able to disqualify jurists with whom they disagree politically or philosophically? The defendants have hinted that a future motion might arise in this very same case, depending on how the Court manages the pending one. In a future case, if the issue before an appellate panel has clear political implications, will judges of the predominant party on the panel or court act to disqualify their colleagues because they hold a different political affiliation?
These are not the questions the business community wishes to see become the focus of the Supreme Court of the best state in the country in which to do business. The health of our legal climate depends on cases being decided on their merits. Not on involuntary disqualifications.
NC Chamber Legal Institute