Editorial: Berger and Moore's statement threatened court, NC Bar should review

Posted February 14

A CBC Editorial: Tuesday, Feb. 14, 2017; Editorial# 8124
The following is the opinion of Capitol Broadcasting Company

In times when the president of the United States refers to members of the independent federal judiciary as “so-called” judges it might be easy to dismiss the caustic judicial criticism from North Carolina’s two most powerful legislators as partisan hyperbole – simply part of the political game.

That would be wrong.

Last week Senate boss Phil Berger and House Speaker Tim Moore, both Republicans, vociferously disagreed with a judicial temporary order on the new law demanding Senate confirmation of Democratic Gov. Roy Cooper’s cabinet picks.

Instead of dissenting in a respectful manner, Republicans Berger and Moore issued an incendiary statement that went dangerously beyond politics:

“In a gross misreading of the Constitution and a blatant overstep of their Constitutional authority, three Superior Court judges attempted to dictate to the legislature when it could or could not hold committee meetings and what it could or could not consider in those meetings. … (I)f these three men want to make laws, they should hang up their robes and run for a legislative seat. Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.”

It is one thing to disagree with the ruling, but quite another to accuse judges of acting outside the law. Even more outrageous, Berger and Moore threatened the judges – and the entire judicial branch of government – with retaliation, “profound consequences” (which it doesn’t take a stretch to interpret as budget cuts and new laws that would threaten the judges’ independence) if they don’t change their ways.

Former N.C. Supreme Court Justice Burley Mitchell says he thinks that the legislature will prevail in the case and understands their frustration. Still, he offered this observation about Berger and Moore’s comments: “The courts these days are so deeply involved with legislation. But it is crucial to remember that judges don’t wake up in the morning wanting to take these issues on. … I have little doubt that when the Chief Justice saw those comments, he got a bit worried about his budget.”

Specific rules govern the conduct of public officials who are also lawyers and we have no doubt that Berger and Moore are well aware of these prohibitions against using their position to influence judges; making reckless statements concerning the integrity of judges; or threatening, bullying or harassing judges with the intent to intimidate them.

It appears to us that Berger and Moore have violated those rules. But only the North Carolina Bar can make that determination. They should immediately conduct a review. The independence of the judiciary requires it.

There is precedent for such an action. Consider the case of former Durham District Attorney Tracey Cline, who made public statements about Superior Court Judge Orlando Hudson that “contained inappropriate language, were intemperate, were inflammatory and tended to lessen the public confidence in our legal system.”

Following an investigation and hearings, Cline lost her publicly-elected job and the N.C. Bar suspended her license to practice law.

Holding public office doesn’t give you license to behave badly. When legislators take on leadership responsibilities like Berger and Moore, they should set standards for the entire legislature. Dissent is one thing, but bullying, threatening and insulting judges should be reviewed by the N.C. Bar.

This has to stop.


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  • Scott Wilson Feb 26, 2017
    user avatar

    Lets face facts, Judges are just Lawyers with black robes. And Lawyers are one of the most disliked professions there are. We have seen Judges step over their boundaries way too often in the Obama era. Our Government is separated the way it is to rein in a rogue judiciary as well as an over zealous executive branch. The legislative branch has given away it's power too many times in the past or we would not have had problems like we had with Obama. Judges should "judge" not legislate. Maybe if they did that there would not be so many disagreements with their rulings. And the legislature should do their job!

  • Matt Wood Feb 15, 2017
    user avatar

    Oh come on, I am certainly no fan of these men, but extrapolating "profound consequences" into everything listed in this editorial is a HUGE stretch. You're not helping, WRAL. Conservatives have long opined on the dangers of "legislating from the bench," and their concerns are not without warrant.

  • Mike Voiland Feb 14, 2017
    user avatar

    And absolute "Amen" to this editorial. Berger and Moore have already shown that they will seek to undermine the executive branch with lawmaking that hamstrings a new governor and his agencies. These statements against the judicial branch was sheer intimidation by those leading the legislative branch and who are lawyers. The NC State Bar should review this case, and if they find Berger and Moore went over the line by "using their position to influence judges; making reckless statements concerning the integrity of judges; or threatening, any bullying or harassing judges with the intent to intimidate them," the Bar should take appropriate action against the two of them.

  • Barrett Powell Feb 14, 2017
    user avatar

    So WRAL just sensored and removed my comment stating the article was biased.

    First, I apologize uf my comment offended anyone. My intent was to give my opinion on the editorial.

    Clearly, WRAL does not value dissenting opinions. My bad.

  • William Patterson Feb 14, 2017
    user avatar

    counting the days these two become history for our state....a dark past history....

  • Catherine Edwards Feb 14, 2017
    user avatar

    I have a deep belief that the system of checks and balances needs to work. Having legislators threaten to budget cut the judiciary, just because they don't agree with the "checks", is unacceptable. If there is law that prohibits that type of conduct then by all means an investigation is warranted. In fact, I demand it too.

    Remember NC has been determined to not be a democracy anymore. We must regain that democracy, and not undermining our checks and balances is very important in that fight.

  • Gary Thompson Feb 14, 2017
    user avatar

    No shock here. WRAL is bashing republicans again. I didnt see you tesring into the democrats for what they have done yet. Oh almost forgot you are democrats and let that bias what you report. Bet you wouldn't be doing any of this is they had won. Yes i support PRESIDENT TRUMP AND ONE NATION UNDER GOD.

  • Teddy Fowler Feb 14, 2017
    user avatar

    Like a broken record.... stuck on the same one track..... your opinions are basically invalid if you always are on the one side... Republicans can't always be wrong... conservatives can't always be misguided.... I suspend belief in your intellect until that ONE time you opine something even remotely conservative.

  • Deborrah Newton Feb 14, 2017
    user avatar

    The "Bar Association" does not regulate lawyer conduct; that is a voluntary membership organization. The correct licensing and disciplinary body is "The North Carolina State Bar". There is a public website anyone can visit if you have questions. If you must write opinion, at least fact check to properly direct the public.

  • Ed Ray Feb 14, 2017
    user avatar

    View quoted thread

    Yep your right, my phone and the auto-correct