Editorial: State court's integrity diminished by Justice Berger Jr.'s refusal to recuse in Leandro case

CBC Editorial: Sunday, Feb. 18, 2024; #8909

The following is the opinion of Capitol Broadcasting Company

As much as we hope our judges possess a strong knowledge of the law, we also expect them to have a firm grip on common sense.

Our hopes and expectations, when it comes to the majority of those sitting on North Carolina’s Supreme Court bench, were dashed by the latest decision concerning the clear and obvious conflict of interest involving state Supreme Court Justice Phil Berger Jr. and the most powerful Republican in the state - Sen. Phil Berger Sr.

What could be the least bit confusing or unclear about Judicial Canon 3-C? “A judge should disqualify himself/herself in a proceeding in which the judge's impartiality may reasonably be questioned.” Like when your father is a party – for example plaintiff, defendant or even an intervenor – in a matter before the court. One’s father is, as the canon define: “A person within the third degree of relationship … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

First, Berger Jr., of his own accord when plaintiffs in the case asked for his recusal, could have (and should have) agreed. Not only would it have been the right thing to do but would have avoided putting his fellow justices in the uncomfortable position of having to deal with the issue.

But confrontation, not cooperation, seems to be the rule with the chief justice and majority on the current state high court. In an earlier case, Berger Jr. was allowed to deliberate and decide a matter because “Justice Berger was not required to recuse when Senator Berger was sued purely in his official capacity because ‘a reasonable person would understand that a suit against a government official in his or her official capacity is not a suit against the individual.’”

The court said it was not going to review or contradict that earlier conclusion. An interesting ruling from a court that routinely reopens past precedents.

So, does Phil Berger Sr. somehow stop being Phil Berger Jr.’s father when he walks into his state Senate office?

In this high-profile case, one that might reverse a quarter-century of legal precedent and -- it is no exaggeration – determine the course of public education in North Carolina -- Justice Berger Jr. has had several opportunities to do the easy and proper thing but has declined.

The case involves implementation of a negotiated remedy – a comprehensive remedial program – to assure that the state fulfills the constitutional right of every child to have access to a quality education. All indications are that this current court – with or without Berger’s participation – will reverse the last quarter-century of decisions that led to the current court order.

The Leandro case has high stakes for the state, the future of public education and even the essential separation of powers clause in our state Constitution and the independence of the executive and judicial branches of government.

Partisanship and self-interest reign on this court. The prestige and integrity of the judicial system, legal ethics and common sense are gone.

Berger Jr. still has the opportunity, prior to the opening of next week’s arguments, to do the right thing and remove himself from this matter. He must.

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