Legislative leaders challenge Leandro plaintiffs’ request for Berger recusal

Attorney Matthew Tilley argues on behalf of N.C. legislative leaders during a Leandro court hearing. (Image from WRAL.com pool coverage)
  • Leaders of the N.C. General Assembly question a request for state Supreme Court Justice Phil Berger Jr. to recuse himself from the Leandro school funding case.
  • Legislators' attorneys argue Sen. Phil Berger Sr. represents the state in his official capacity as he participates in the case.

Legislative leaders have fired the latest salvo in the legal battle over N.C. Supreme Court justices’ participation in the latest stage of the Leandro school-funding lawsuit.

A court filing Thursday from legislative attorneys questions Leandro plaintiffs’ request that Justice Phil Berger Jr. recuse himself from the case.

Plaintiffs requested recusal from Berger, a Republican, on July 15. That was two days after GOP legislative leaders issued a similar request for recusal of Justice Anita Earls, a Democrat.

The latest filing takes no stance on Berger’s recusal. It notes, “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.”

Instead of saying “yes” or “no” to recusal, attorney Matthew Tilley questions the basis of Leandro plaintiffs’ request.

Berger’s father serves in the N.C. Senate’s top office. In that role, Sen. Phil Berger Sr. is challenging court-ordered education spending tied to the Leandro case. Plaintiffs argue that Berger Jr. faces a conflict of interest because of his father’s participation in the case.

Berger Jr. has rejected similar recusal requests in two other cases.

“Plaintiffs argue this case is somehow different because Legislative Intervenors are supposedly not participating in this lawsuit in their official capacities and therefore are ‘not the State.’ That assertion is wrong as a matter of law,” Tilley wrote.

Berger Sr. is taking part in the Leandro cases because of a provision of state law, Tilley explained.

“That Statute authorizes the Speaker of the House and President Pro Tempore of the Senate — no matter which individuals hold those positions — to intervene in matters such as this in their official capacities ‘on behalf of the General Assembly’ and ‘as agents of the State,’” he wrote.

“[I]n any action in which an act of the General Assembly is challenged, ‘the General Assembly, jointly through the Speaker of the House of Representatives and the President Pro Tempore of the Senate, constitutes the legislative branch of the State of North Carolina.’ Thus, in such actions, ‘both the General Assembly and the Governor constitute the State of North Carolina,’” Tilley wrote.

Democratic Gov. Roy Cooper and his appointees on the State Board of Education, working with lawyers from Democratic Attorney General Josh Stein’s N.C. Justice Department, have endorsed the court-ordered spending.

“The analysis does not change just because the Legislative and Executive Branches have taken different positions in this lawsuit,” Tilley argued. The law “was adopted to address the ‘possibility that different branches of government may seek to vindicate different and valuable state interests.’”

State law “directly contradicts Plaintiffs’ assertion that Legislative Intervenors ‘are not the State,’ by specifying that, ‘when the State is named as a defendant … both the General Assembly and the Governor constitute the State of North Carolina,’” Tilley wrote. “Legislative Intervenors have thus intervened in this matter in their official capacities.”

While plaintiffs seek Berger Jr.’s recusal because of his father’s participation in the case, legislative defendants have targeted Earls because of her past involvement with Leandro.

Earls worked as an attorney for intervening plaintiffs in the case in 2005. She later filed a friend-of-the-court brief supporting the plaintiffs in 2012.

Democrats outnumber Republicans, 4-3, on the state Supreme Court. Recusal from either Berger or Earls would affect the court’s partisan balance.

Neither justice has responded yet to the requests for recusal. The court is scheduled to hear oral arguments in Leandro on Aug. 31.

The most pressing issue involves a trial court order involving $785 million for education-related spending. Justices will decide whether a trial judge can order the state to spend that money to fund portions of a court-sanctioned Leandro plan.

The court also will determine whether a judge can bypass the General Assembly and force other state officials to transfer the money out of the state treasury.