Opinion

MELISSA PRICE KROMM: No justice for all until stronger recusal rules are set for N.C. judges

Thursday, Sept. 2, 2021 -- It's clear that state Supreme Court Justice Phil Berger Jr. and Justice Tamara Barringer should recuse themselves from the voter ID law case, but equally important is that we fix the broken judicial system that allowed them to ignore their conflicts of interests in the first place.

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N.C. Supreme Court
EDITOR'S NOTE: Melissa Price Kromm is director of North Carolina Voters for Clean Elections.

Life isn’t fair, but our courts certainly should be. It’s important that every North Carolinian trusts they’ll get a fair shake when their day in court comes around. But right now, that’s impossible to guarantee in our state. When it comes to determining conflicts of interest in the courtroom, judges effectively operate on an honor system in which they decide for themselves whether it’s inappropriate or not to preside over a case. That’s bad news for North Carolinians.

To understand why it’s so bad, just imagine a Duke versus UNC game officiated by a referee who previously coached one of the two teams. It wouldn’t matter what the final score was -- fans and players would be left to question whether there was bias at work behind any bad calls, especially consequential ones. It’s the kind of scandal that can ruin sport, and that’s why leagues exercise the utmost care when it comes to selecting refs for particular games. So, if such precautions can be taken in college basketball, why not in our courts?

In North Carolina, it’s up to judges to decide when they must remove themselves from hearing a case, no matter how glaring any conflict of interest they might have. Although North Carolina’s code of judicial conduct demands that a judge remove themselves from cases involving parties with whom they have close personal ties, it’s ultimately up to the state Supreme Court to decide what constitutes a close personal tie.

To see this in action, look no further than the ongoing lawsuit before our state Supreme Court regarding a significant voting rights ID law. One of the lead defendants in the case is North Carolina state Senator Phil Berger Sr., father of newly elected state Supreme Court Justice Phil Berger Jr. Then there’s also first-term Justice Tamara Barringer, a former state lawmaker who actually voted in favor of the voter ID law in question during the 2017-2018 legislative session. It doesn’t take a political scientist to see the appearance of something unfair going on. In fact, ask any North Carolinian and they’ll likely tell you that this is the opposite of fair.

Fair or not, under North Carolina law, it’s up to Justice Berger Jr. and Justice Barringer to decide whether to step back from the case. Take a moment to appreciate the implications of such a system. What if referees were allowed to decide for themselves whether they were biased or not before officiating a big game? How could they possibly guarantee fairness? Whether it’s the NBA finals or the State Supreme Court, the stakes are way too high to leave things to chance. North Carolinians are honorable, but they deserve better than a judiciary by honor system.

It’s clear that Justice Berger Jr. and Justice Barringer should recuse themselves from the NAACP v Moore case, but equally important is that we fix the broken judicial system that allowed them to ignore their conflicts of interests in the first place.

Conflicts of interest in the judicial system are a serious problem. Luckily, there are a few common sense solutions available. North Carolina legislators could take several steps to reduce the conflicts of interest and politicization of the courts. For starters, lawmakers could require that any reasonable concern over a conflict of interest in the courtroom be decided by a fair and independent arbiter, as allowed in fifteen other states. Another way to ensure fairness is to beef up disclosure requirements. The fastest way to reveal conflicts of interests is by ensuring that attorneys and parties before the court disclose any campaign contributions they’ve made to judges hearing their case.

North Carolinians deserve better than a judiciary by honor system. To preserve fair and impartial justice in North Carolina, it’s imperative that we pass fair judicial recusal rules to remove judges from conflicts of interest. Without them, we can’t fully guarantee fairness in the courtroom. At the end of the day, North Carolinians aren’t asking for much -- just a fair shake.

This column was updated to add a reference and link to the specific case.

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