Legislative leaders oppose Cooper’s request for Berger Jr. recusal

Top North Carolina legislative leaders reject Gov. Roy Cooper’s request that state Supreme Court Justice Phil Berger Jr. stay away from two cases pitting the governor against the legislature. The governor cites the role Berger’s father plays in both cases as state Senate leader.

Cooper’s lawyers filed paperwork on June 11 seeking Berger Jr.’s recusal or disqualification from the two cases. Lawmakers responded Tuesday.

“The decision whether to recuse is committed to the discretion of the justice for whom recusal is sought unless that justice refers it to the entire Court. And on the question raised by the Governor’s motion — whether Justice Berger must recuse himself every time a constitutional challenge to an act of the General Assembly comes before this Court because North Carolina law requires that Senator Berger be named in his official capacity as President Pro Tempore of the Senate — both Justice Berger and this Court as a body have considered and rejected that argument again and again and again and again and again,” legislative lawyers wrote. “Just as before, the Governor’s motion should be denied.”

In the two cases, both titled Cooper v. Berger, the governor has sued Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in their “official capacities,” the court filing argued. “This case does not implicate their ‘personal’ or ‘individual’ interests.”

“Justice Berger’s involvement in this matter does not violate Canon 3C(1)(d)(i) because Senator Berger is not the true party in interest in Plaintiffs’ lawsuit,” lawmakers’ lawyers argued. “Instead, it is the State, the Legislative Branch of which is represented by the President Pro Tempore of the North Carolina Senate and the Speaker of the North Carolina House, that is the true party in interest.”

Both cases involve appointments to government boards.

“[T]he Governor argues that the appointment powers granted by challenged legislation somehow make Senator Berger’s involvement ‘personal’ for the purposes of the Code of Judicial Conduct. But that assertion misunderstands basic civics,” the court filing explained. “The legislation, which was ratified by the General Assembly as a body, assigns appointment powers to the office of the President Pro Tempore of the Senate, not an individual person.”

“What is more, in all but one case, the challenged legislation does not give the power to make appointments to the President Pro Tempore directly, but instead only gives him the power to recommend appointees to the General Assembly, which must vote as a body to make the appointment,” lawmakers’ lawyers continued “In other words, none of the appointments are given personally to Senator Berger — instead they are assigned to the office of the President Pro Tempore, as well as to several other constitutional offices (including the Governor), to be exercised by whoever holds the office. And where Senator Berger is concerned, his power is limited to the power to recommend appointees to the General Assembly.”

Legislative lawyers questioned why Cooper’s proposal would not extend to other justices.

“If appointment power really amounts to a ‘personal and individual benefit’ that transforms a nominal official-capacity participant into one with a ‘personal’ stake in the litigation, it is hard to see why judges and justices who owe their appointments to the Governor’s exercise of such a ‘personal right’ would not also need to recuse themselves. A rule tailored to recuse just one person is no rule at all,” according to the court filing.

The filing does not mention Justice Allison Riggs, but she owes her seat on the state Supreme Court to an appointment from Cooper.

Legislative lawyers write that Cooper’s “insinuations of bias are meritless” in seeking Berger Jr.’s recusal.

“[T]he Governor tries to distinguish his current motion from the many that have preceded it by making the argument that Justice Berger’s votes in prior cases — which have upheld the longstanding principle that actions of the General Assembly are presumptively valid and that laws will only be held unconstitutional if proven so beyond a reasonable doubt — somehow reflect a ‘bias’ not only in favor of the General Assembly, but also one that undermines the legitimacy of the judiciary. That is a serious charge,” the court filing explained.

“It is enough here to ask: Which does more to erode the public’s confidence in the judiciary — a justice who (like others) has previously analyzed the Code of Judicial Conduct and found an ‘obligation to accept the responsibility that results from hearing and deciding controversial cases,’ or the State’s chief executive insinuating a justice is biased merely because he has joined past rulings with which the Governor apparently disagrees?” legislative lawyers asked.

State legislative leaders filed petitions in May asking the state’s highest court to take the two cases titled Cooper v. Berger. One case deals with Cooper’s challenge to a law remaking the composition of the State Board of Elections and county elections boards. The other involves Cooper’s opposition to appointments changes for seven other state boards and commissions.

Both cases pit the Democratic governor against top Republican legislative leaders. Both cases sit now at the state Appeals Court.

Lawyers representing Cooper filed paperwork last week urging the state Supreme Court to reject both petitions. The governor’s lawyers filed separate documents arguing against Berger Jr.’s participation in either case.

“Senate Bill 749 will give Senate President Pro Tempore Philip E. Berger — personally — new powers and extensive control over the State Board of Elections and 100 county boards of elections,” Cooper’s lawyers wrote in one document labeled a “motion and suggestion of recusal or disqualification” for Berger Jr. “Associate Justice Philip Berger, Jr. is Senator Berger’s son. As a result, recusal is required under both the North Carolina Code of Judicial Conduct and the Due Process Clause of the Fourteenth Amendment to the United State Constitution because, aside from being a named defendant in this case, Senator Berger would personally and individually benefit if the challenged law takes effect.”

“This Court should avoid the appearance of partiality that would necessarily and inevitably result from allowing a justice with a substantial personal interest in the outcome of the case to help decide it,” Cooper’s lawyers wrote.

Early in the document, Cooper “respectfully requests that Associate Justice Berger recuse himself in this case.” At the end of the document, the wording changes. Cooper requests that Berger Jr. “recuse or be disqualified from participation” in the case. Cooper’s lawyers used similar language in their request for Berger Jr.’s recusal in the appointments case.

Under state Supreme Court rules, each justice can decide whether to participate in a case. The justice also can refer the decision to a vote of the other six justices.

A separate court filing spelled out Cooper’s objection to the state Supreme Court taking the elections board case at all.

“Legislative Defendants seek the extraordinary step of bypass review because they know the North Carolina Constitution and existing precedent make Session Law 2023-139 (‘Senate Bill 749’) unconstitutional,” the governor’s lawyers wrote. “Through their Petition, Legislative Defendants invite this Court to ignore the public interest and the clear results of a recent public vote about amending our Constitution, jettison stare decisis, and reinterpret our Constitution and the political question doctrine so that separation of powers is no longer an enforceable constitutional limitation. This Court should decline that dangerous invitation.”

In the separate legal dispute over appointments to seven state boards and commissions, Cooper’s lawyers urged the high court to consider “the State’s public policy to ensure uniform treatment of appeals.”

A change in state law in 2016 eliminated a provision giving the state Supreme Court direct review of court judgments striking down acts of the General Assembly for constitutional or federal law violations, the court filing noted.

“Consistent with the General Assembly’s expressed policy preferences for the handling of constitutional appeals and the public interest in the evenhanded treatment of all litigants, this Court should reject bypass review and reaffirm that separation of powers disputes, like other appeals, generally should proceed first in the Court of Appeals,” the governor’s lawyers wrote.

The state’s high court would have to bypass the Court of Appeals to take the two Cooper v. Berger cases. Republicans outnumber Democrats, 5-2, on the state Supreme Court. Republicans outnumber Democrats, 11-4, on the Appeals Court. That court hears cases in three-judge panels.

In one of the current Cooper v. Berger disputes, a unanimous three-judge Superior Court panel ruled in Cooper’s favor and against the General Assembly’s plan to remake appointments to the State Board of Elections. In the second case, a different unanimous three-judge panel upheld five of seven state boards and commissions Cooper had targeted because of appointments changes.

“Governor Cooper filed the suit below arguing that under no set of circumstances would it be constitutional to create a bipartisan, even-numbered board to manage the election laws of North Carolina,” wrote lawyers representing Senate Leader Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in the first case. “Under the Governor’s view of
executive power, any discretion in executing those laws must carry forward only his
views and priorities.”

“As this Court has done with previous cases presenting similar issues, it should allow this bypass petition to review the foundational constitutional questions presented by this appeal,” wrote lawyers representing lawmakers in the second case. “The answers to those questions impact not only the structure of the seven public boards and commissions at issue in this case, but also the General Assembly’s authority to organize (and reorganize) agencies of State government.”

State lawmakers overrode Cooper’s vetoes in 2023 to approve bills changing appointments to boards and commissions. “[T]he bills sought to diffuse power over the boards and commissions at issue by adopting a range of structures that split appointments between the Governor, members of the Council of State, certain outside professional groups with relevant expertise, and the House and Senate,” according to the state Supreme Court petition.

“Governor Cooper, however, sued to stop Senate Bill 512 and House Bill 488, claiming they ‘fail to respect fundamental principles of representative government’ and, if implemented, would lead to ‘tyranny,’” lawmakers lawyers’ wrote.

“And just a week later, the Governor filed yet another lawsuit, challenging legislative efforts to establish a bipartisan Board of Elections. Why? Because, according to the Governor, separation of powers requires that he — and he alone — must have ‘enough control’ over every board and commission to ensure it ‘implement[s] executive policy’ in a manner ‘consistent with his views and priorities,’” the Supreme Court petition continued.

“As a result, he contends the Constitution requires that he have the power to appoint a majority of every board and commission the General Assembly creates,” lawmakers’ lawyers wrote. “But no provision of the Constitution gives the Governor power to appoint statutory officials.”

Cooper is relying on two precedent cases, McCrory v. Berger from 2016 and an earlier Cooper v. Berger ruling from 2018, “decisions which drew sharp dissents, and which cannot be squared with constitutional text, history, or precedent,” according to the legislative leaders’ lawyers.

Lawmakers contrasted the Superior Court panels’ responses to the two current Cooper v. Berger disputes.

“The panel in this case issued summary judgment enjoining Senate Bill 512’s changes with respect to two boards and commissions, but denying the Governors’ claims as to the others,” one Supreme Court petition explained. “That ruling stands in contrast to the one issued just a week later by the separate panel hearing the Governor’s challenge to the Board of Elections.”

“The panel’s decision in that case failed [to] find any basis to distinguish McCrory and Cooper I, and accordingly doubled down on the notion that that every board and commission — including those charged with overseeing elections — must be beholden to the Governor,” lawmakers’ lawyers argued. “Both cases thus bring into sharp focus whether the test established by McCrory and Cooper I is consistent with separation of powers enshrined in our Constitution, or, on the other hand, seeks to insert the judiciary into a nonjusticiable political question for which there are no judicially manageable standards.”

The state Supreme Court’s review of both cases “is necessary to consider whether McCrory and Cooper I should be overruled, provide needed guidance concerning the fundamental constitutional questions raised by the Governor’s claims, and resolve any lingering uncertainty regarding the proper composition of the boards and commissions at issue,” according to the petition.

In the elections board case, Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an order in March striking down elections board changes incorporated last year in Senate Bill 749. Wilson is a Democrat. Hamilton and Womble are Republicans.

Legislative leaders appealed that ruling.

In the broader appointments case, Superior Court Judges John Dunlow, Dawn Layton, and Paul Holcombe issued an order upholding changes to the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The panel struck down changes to the state’s Economic Investment Committee and Board of Transportation. Dunlow and Holcombe are Republicans. Layton is a Democrat.

In addition to legislative leaders, Cooper appealed the three-judge panel’s ruling in the appointments case.