Clerk refuses to name appellate judges who overturned halt on Election Board, Ethics Commission merge

WRAL published an article Friday about the North Carolina Court of Appeals refusing to disclose the names of the three judges who issued an order in an ongoing dispute between Democratic Gov. Roy Cooper and top GOP lawmakers.

That’s despite that fact that Phil Berger Jr., who was elected to the court in November, is the son of Sen. Phil Berger, R-Rockingham, one of the named defendants in the case. It’s unclear whether the younger Berger participated in the decision.

“Pursuant to policies and procedures established by the North Carolina Court of Appeals, the names of the judges who rule upon motions and petitions prior to the case being calendared for argument are not disclosed,” Dan Horne, clerk for the Court of Appeals, wrote in an email to WRAL News.

Pressed to make an exception to court policy in this case, Horne said, “The three judges who ruled upon this motion are deemed to have ruled on behalf of the entire court. For that reason, such orders are orders of the entire court and are issued under the Clerk of Court’s signature.”

The Court of Appeals overturned a lower court’s preliminary injunction last week in Cooper v. Berger, which challenges the constitutionality of Senate Bill 4. The bill, which was passed during a December special session, eradicates the current State Board of Elections and State Ethics Commission and merges their powers and duties into one new “Bipartisan Board.”

Cooper’s attorneys immediately filed an emergency motion with the state Supreme Court but a decision on whether justices will review the case has not yet been made. The North Carolina Administrative Office of the Courts has not yet released that emergency motion.

It should be noted that Senate Bill 4 also changed the appeals process — which affected this case favorably for the lawmakers. The bill eliminated a direct right of appeal to the state Supreme Court for final or interlocutory judgments that deem an act by the General Assembly unconstitutional.

Instead of the direct appeal to the state Supreme Court, which has a 4-3 Democratic majority, the appeal goes first to the state Court of Appeals, which has an 11-4 Republican majority.

The Appeals Court order was signed by Horne without the names of the judges attached, according to the WRAL article.

The elder Berger is the powerful president pro tem of the Senate, a position that gives him a great deal of say over what bills do and do not become law and a great deal of influence over the state budget. His son won election in November to the 15-member Court of Appeals, which hears cases and makes decisions in three-judge panels.

The younger Berger did not immediately respond to a call to his chambers or mobile phone asking if he was part of the panel. WRAL News had submitted a public records request to the court asking for records that would show those names.

“If they have a record that is applicable, they should turn it over,” said Jonathan Jones, director of the North Carolina Open Government Coalition.

Late Friday, the Horne replied, “We do not have a record that is responsive to your request.”

A spokesman for the elder Berger told WRAL that the senator did not know who the appellate judges were and that “this type of appellate court panel is anonymous.”

It’s an interesting response since earlier the same day his attorney touted in court that the General Assembly is all about transparency. That court hearing was another request for a preliminary injunction due to a constitutional challenge of Senate confirmation hearings.