Leandro plaintiffs seek Berger Jr.’s recusal from upcoming hearing

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  • Plaintiffs in the long-running Leandro education funding lawsuit are seeking state Supreme Court Justice Phil Berger Jr's recusal from the case.
  • The plaintiffs object to Berger taking part in an appeal brought by his father, the state Senate leader.
  • The request for Berger's recusal arrived five days after Sen. Phil Berger and House Speaker Tim Moore requested the recusal of Justice Anita Earls. The Bergers and Moore are Republicans. Earls is a Democrat.

Plaintiffs in North Carolina’s long-running education funding legal dispute are seeking Justice Phil Berger Jr.’s recusal from the state Supreme Court’s pending hearing in the case. Critics object to Berger considering a case involving his father, the state Senate’s top officer.

A formal request for Berger’s recusal arrived Tuesday, five days after Berger Sr. and state House Speaker Tim Moore requested the recusal of Justice Anita Earls.

Both Bergers and Moore are Republicans. Earls is a Democrat.

“Recusal is appropriate and necessary because Justice Berger’s father is the appellant in this case,” wrote attorneys representing plaintiffs in the case commonly known as Leandro. Five local school boards — Cumberland, Halifax, Hoke, Robeson, and Vance — are the case’s plaintiffs.

“Justice Berger’s father is Intervenor-Defendant Philip Berger, Sr. (“Intervenor Berger”). Intervenor Berger falls within the third degree of relationship to Justice Berger as defined under Canon 3(C)(1) and the civil law system. Indeed, a parent-child relationship, such as that between Intervenor Berger and Justice Berger, constitutes a first degree of relationship. Justice Berger should recuse himself from deciding an appeal to which his father is the appellant,” Leandro plaintiffs argued.

“Plaintiffs understand that Justice Berger previously received a motion for his recusal in another appeal concerning a lawsuit that named his father as a party-defendant,” according to the court filing. “There, Justice Berger decided that recusal was not required because that lawsuit was ‘a suit against the State’ and his father was named as a party-defendan ‘in the caption only as a matter of procedure.’”

“Justice Berger decided that recusal was not required because the naming of his father as a defendant in his official capacity was no different than a suit against the State. This case, however, presents very different circumstances,” Leandro plaintiffs argued.

“Plaintiffs did not name Intervenor Berger as a defendant and his appearance is not a ‘matter of procedure.’ Rather, Plaintiffs filed this case against Defendant State of North Carolina and Defendant State Board of Education. Intervenor Berger inserted himself in this case — nearly three decades after its filing — by affirmatively intervening,” the document continued.

“Intervenor Berger is not the State in this appeal,” Leandro plaintiffs argued. “Intervenor Berger (the appellant) takes a position directly at odds with that of the State (the appellee). Accordingly, Plaintiffs respectfully move and request Justice Berger to recuse himself from this matter. In the event such motion is referred to the entire Court, Plaintiffs respectfully move the Court for the recusal of Justice Berger.”

State Supreme Court rules allow Berger, Earls, and each of their colleagues to decide for themselves on issues of recusal. Each justice can decide to submit the decision to the full court if they do not choose to make the decision themselves.

In a motion filed last week, legislative leaders argued that Earls “participated in this case as an attorney” for a group of plaintiffs distinct from the five local school boards. She signed initial and amended complaints for the plaintiffs known in court records as Penn-Intervenors.

“The North Carolina Code of Judicial Conduct provides that a judge should disqualify himself or herself when he or she participated in the case as a lawyer for the parties,” the motion continued. Lawmakers cited the North Carolina Code of Judicial Conduct Canon 3(C)(1)(b).

“The United States Supreme Court has also noted that a judge presiding over a case in which he or she participated as counsel raises due process concerns,” lawmakers’ lawyers wrote.

“Consistent with these authorities, Justice Earls has recused herself in similar cases where she previously participated as an attorney representing the parties,” the motion continued. Earls voluntarily recused herself from Bouvier v. Porter, a defamation case that emerged after the 2016 governor’s race.

Earls rejected recusal in Leandro in 2022. “While they recognize Justice Earls previously addressed the issue of recusal in a prior appeal, Legislative Intervenors submit that recusal is still warranted in this appeal,” lawmakers’ lawyers wrote. “Although Justice Earls concluded that the trial court’s orders below did not involve the Penn-Intervenors’ claims, the Penn-Intervenors have taken a seemingly different position.”

The Penn-Intervenors rejected lawmakers’ request to have them removed from the current Leandro dispute.

“The nature of the issues presented in this appeal likewise warrant recusal,” the motion added. “This Court has granted discretionary review to determine whether the trial court lacked subject matter jurisdiction to enter its order of 17 Apr il 2023, including whether Plaintiffs’ and the Penn-Intervenors’ claims give them … standing to obtain relief for school districts where they do not reside. Thus, to the extent they were not before, the Penn-Intervenors’ pleadings, including specifically those Justice Earls signed in the early stages of this case, are now before this Court as a necessary part of its review of the trial court’s subject matter jurisdiction.”

“While they do not wish to relitigate Justice Earls’ previous decision not to recuse, Legislative Intervenors respectfully suggest, under the circumstances of this new appeal, that recusal nonetheless is warranted.”

The state Supreme Court agreed on Oct. 20 to take another look at Leandro, known officially as Hoke County Board of Education v. State. Earls and fellow Democratic Justice Allison Riggs dissented from that 5-2 decision.

State legislative leaders asked the state’s highest court in September to take the case again, bypassing the state Court of Appeals. At issue in the legislators’ appeal is a trial judge’s decision in April ordering North Carolina to spend an additional $677 million on education items. The money would cover items linked to a court-endorsed comprehensive remedial plan. The new Supreme Court order refers to the $677 million mandate as a “remedial order.”

Earls explained in her dissent why she and Riggs would have rejected lawmakers’ request.

“Legislative-Intervenors’ bypass petition should be denied because it is substantively hollow and procedurally improper. This Court resolved the question of subject-matter jurisdiction in Leandro IV,” Earls wrote. “In that case — just 11 months old — the Legislative-Intervenors raised the same arguments they do in their bypass petition: That the trial court lacked jurisdiction to remedy constitutional deficiencies in public education. We examined that claim and ‘unequivocally rejected’ it.”

Earls rejected state lawmakers’ arguments that the case should focus only on Hoke County schools.

“Since the trial court found a statewide constitutional violation, we explained, it had subject-matter jurisdiction to order a statewide remedy,” she wrote. “But the Legisative-Intervenors ignored the trial court’s sound analysis and solid conclusion. They instead argued before us — as they do now in their petition — that ‘there has never been a finding’ of a constitutional violation ‘beyond Hoke County.’ We rebuffed that argument. And we went further, decrying it as ‘a fundamental misunderstanding of the history of this case and the State’s constitutional obligations.’”

“If parties can reopen a case by casting their disagreement in the language of ‘jurisdiction,’ then our courts will be nothing but revolving doors and our decisions nothing but paper tigers,” Earls wrote. “This case shows the danger of that approach.”

A concurrence from Berger, joined by fellow Republican Justices Richard Dietz and Trey Allen, answered Earls’ critique.

“The premise of the dissent is that this Court already ‘resolved the question of subject-matter jurisdiction in [Hoke County III].’ The dissent is wrong,” Berger wrote.

Berger noted Earls’ earlier work as a lawyer helping plaintiffs add the Charlotte-Mecklenburg Schools to the long-running case. The legal dispute had started with five different school systems.

“Core to their rationale for intervention was that every public school district faces its own unique educational challenges and groups of students or school districts in one area of our state are ill-suited to address the educational deficiencies in others,” he wrote.

“This raises questions that our Court has not yet addressed: If public school students or local school boards who are not parties to this case believe the remedial order does not sufficiently address the educational failure in their districts, are they bound by the remedial order?” Berger added. “If so, how were their rights adjudicated without their presence in the suit — an elementary principle of jurisdictional law.”

Berger wrote that Earls and the previous Supreme Court majority “rushed to complete its earlier opinion in this incredibly complex, novel case (one that has spanned decades) so that it could be released in November of last year. The failure to resolve these jurisdictional questions is not the first oversight from this Court’s rush to judgment in Hoke County III.”

“My dissenting colleague laments that subject matter is now being addressed because it will cause various harms to judicial integrity and ‘snuff out legal finality,’” Berger said of Earls. “Once again, we endure ad nauseum these fanciful protestations. But it is black letter law that courts cannot ignore potential defects in subject matter jurisdiction.”