Berger-Barringer controversy makes clear that NC should make its judicial ethics rules stronger, not weaker

By: - November 3, 2021 12:00 pm

Image: Adobe Stock

Image: Adobe Stock

The justices of the North Carolina Supreme Court are currently debating how they should handle conflicts of interest. Indeed, two Republican justices are now the target of motions to “disqualify” based on alleged conflicts in a case challenging a pair of constitutional amendments adopted and placed on the statewide ballot by the legislature in 2018.

Justice Phil Berger, Jr. is the son of a defendant, Senate Leader Phil Berger, whose authority as a legislator is challenged in the lawsuit. Justice Tamara Barringer, who was elected to the court in 2020 along with Berger, is a former legislator who voted for the amendments while serving in the Senate.

The salient question in the debate at this point is “who decides?” Conservatives and some former chief justices have argued that when a party to a dispute asks that a justice sit out that case, that justice—the one with an alleged conflict of interest—should decide if they can hear the case. The court should reject this proposal, because it would lead to perceived bias in the judiciary.

The North Carolina Code of Judicial Conduct prohibits judges from hearing any case in which their “impartiality may reasonably be questioned.” The rules specify that this includes cases involving their relatives and cases in which they have an interest that could be impacted.

The court has asked the parties to the case a series of questions on how to handle such motions, and some of them—rather worrisomely—suggest that the Code of Conduct may not even apply to their decisions on recusal. This would mean the justices aren’t bound by judicial ethics rules when deciding whether they can hear cases. The only court in the United States with such unfettered rein is the U.S. Supreme Court.

Justice Phil Berger Jr. and Justice Tamara Barringer

The court even asked if elected judges have “an individual constitutional right” to hear every case that comes before them. The justices also asked about other states that allow high courts, instead of individual justices, to decide when conflicts of interest require disqualification.

In yet another inquiry, the justices asked if the court has “the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?” If the answer is ‘no,’ then only the judge with the potential conflict of interest could decide if they can hear the case.

Let’s hope the court chooses not to head down this road. Such a system would inevitably lead to perceptions of bias. It would also be a big departure from previous practice. And as the court noted, state law requires a quorum of four of seven justices to act.

Simply put, the North Carolina Supreme Court should not allow individual justices with alleged conflicts of interest to decide if they can hear cases. This would allow individual justices to create their own exceptions to the Code of Conduct, without explaining it to the public.

It makes much more sense to have the entire court decide motions to disqualify. North Carolina’s judicial ethics rules seek to avoid bias on the bench, as well as any perceived bias. And this goal is best served by taking the decision out of the hands of individual justices.

The high courts in 15 states employ such an “independent review” regimen for justices’ decisions on recusal, according to a 2015 report by the Brennan Center for Justice. In Texas, for example, a justice’s decision not to recuse is reviewed by the rest of the court.

Instead of allowing individual justices to decide what judicial ethics rules require, the North Carolina Supreme Court or the General Assembly should strengthen these rules. The need for such action has been made more urgent by the fact that the code of conduct hasn’t been updated to account for the expensive, partisan elections that judges now face.

The Blueprint for a Stronger Democracy, a recent report authored by a coalition of voting rights and good government groups to which I had the opportunity to contribute, proposes reforms to strengthen judicial independence. Among other things, the Blueprint calls for a mandate that the justices explain their reasoning when they decide who can or cannot hear a case.

Such a requirement could have proved very useful in North Carolina. Last year, Justice Berger recused himself from a voter ID lawsuit in which his father was also a party. If he had been required to state his reason for recusal, it might be relevant to the issue now before the court.

The Blueprint also recommends a ban on judges personally asking for campaign contributions. Only a handful of the 39 states that elect judges (sadly, including North Carolina) allow them to personally ask lawyers and CEOs for campaign cash. The U.S. Supreme Court upheld a ban on personal solicitation in 2015, with Chief Justice John Roberts warning that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”

If judicial ethics rules aren’t reformed, the justices could continue to disagree over how to handle conflicts of interest. A new Republican majority could be in place after next year’s election, and this could lead to changes.

In Ohio, where high court justices decide whether to recuse themselves or not, a similar ethical dilemma has popped up. Justice Pat DeWine, son of the Republican governor, explicitly recused himself from certain cases involving his father to avoid appearing biased. But DeWine won’t recuse himself from a case in which his father is being sued for gerrymandering.

If the North Carolina Supreme Court doesn’t decide when conflicts of interest require recusal, the justices will, similarly, be left to pick and choose which lawsuits against their relatives they can decide. Citizens and parties before the court would inevitably begin to ask if justice is truly blind.

Billy Corriher is a freelance writer, consultant, and advocate for fair courts who lives in Mebane.

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