Justices Barringer, Berger confirm they will hear N.C. constitutional amendments case
By Mitch Kokai, Carolina Journal
N.C. Supreme Court Justices Tamara Barringer and Phil Berger Jr. confirmed late Friday afternoon that they will take part in a high-profile case involving two challenged amendments to the N.C. Constitution.
In separate orders, the two Republican justices denied motions seeking their removal from the case called NAACP v. Moore.
The orders mark an official end to a controversy Carolina Journal has documented since September 2021 at ExtremeInjustice.com.
"[A]fter months of thorough and thoughtful deliberation, I have concluded that I can and will be fair and impartial in deciding North Carolina State Conference of the National Association for the Advancement of Colored People v. Moore, et al.," Barringer wrote in her two-page order. "Accordingly, the 23 July 2021 Motion to Disqualify filed therein is denied insofar as it requested my disqualification."
Among the reasons for her decision, Barringer cited "my solemn oath to serve on our state's Court of last resort — rather than recusing myself or being disqualified to avoid controversy" and "my resulting judicial duty to all North Carolinians — including the 2,746,362 who voted for me and the 2,616,265 who did not — to prevent any ideological or political affiliation from tainting my legal analysis."
Barringer had been targeted for removal in the case because she served as a state senator in 2018. That's when the General Assembly placed the now-challenged constitutional amendments on North Carolina's statewide ballot.
"I am following a strong and firmly rooted tradition in reaching the conclusion not to recuse myself due to my prior legislative service," Barringer wrote. "As the 101st Justice on our Court since its founding in 1819, I am following the precedent established by the 51 of my 100 predecessor Justices who first served in the legislature and later went on to fairly and impartially judge various statutes that were passed or amended during their legislative tenure before they joined the North Carolina Supreme Court."
Critics had targeted Berger because his father serves as the top officer in the N.C. Senate. In that official capacity, Sen. Phil Berger is a named defendant in NAACP v. Moore.
"This Court has repeatedly held that '[a] suit against a public official in his official capacity is a suit against the State,'" Berger Jr. responded in his three-page order. "With this straightforward precedent, 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."
"More than 2.7 million North Carolinians, knowing or at least having information available to them concerning my father's service in the Legislature, elected me to consider and resolve significant constitutional questions like the one at issue here," Berger said. "The ultimate question, and indeed the touchstone of all recusal issues, is 'whether the justice can be fair and impartial?' Because this case is a suit against the State, and because I can and will be fair and impartial carrying out my duties in this case, plaintiffs motion is denied."
Barringer and Berger issued their orders 15 days after the full state Supreme Court issued an order dealing with the policy regarding recusal of justices. Under that Dec. 23 order, each individual justice maintains the ultimate decision-making authority. He or she can decide whether to take part in the deliberations and decisions about a particular case.
A justice may submit a decision about recusal to a vote of the rest of the court, but there is no obligation to do so. When a decision about recusal is finalized, the updated policy requires the court to indicate whether the justice made the recusal decision individually or left the decision to colleagues.
Berger will likely face similar decisions in other cases. Plaintiffs challenging North Carolina's new election maps and plaintiffs targeting the state's decades-old felon voting law have sought Berger's disqualification from their cases. In both cases, the challengers cite the role of Berger's father as Senate leader.
A motion filed Thursday asks Democratic Justice Sam "Jimmy" Ervin IV to recuse himself from the redistricting case. It's likely Ervin's decision about participation in that case will generate a court order as well.
Now that Barringer and Berger have confirmed their participation in NAACP v. Moore, the Supreme Court can return to considering the case's merits. The court will determine the fate of amendments guaranteeing voter ID for N.C. elections and lowering the state's cap on income tax rates.
There's no word on when the case will be rescheduled for oral arguments.
