Law professors file new briefs supporting forced removal of GOP justices

Nearly two dozen N.C. law professors have signed on to two new friend-of-the-court briefs in a high-profile N.C. Supreme Court case involving voter ID. Both briefs filed Tuesday urge the state Supreme Court to remove two Republican justices from hearing the case.

Thirteen professors have signed onto a brief as N.C. professors of constitutional law. The other 10 label themselves “professors of professional responsibility” in their brief.

Among the signers is Gene Nichol, a University of North Carolina at Chapel Hill law professor. Nichol has served as one of the most vocal and virulent critics of Republican politicians in the state over the past decade.

Another signer, Ted Shaw of UNC-Chapel Hill, was a central figure in the controversy surrounding accusations of unlawful litigation work by the school’s Center for Civil Rights.

All signers agree the state Supreme Court should force Associate Justices Tamara Barringer and Phil Berger Jr. off the case NAACP v. Moore. That case seeks to overturn N.C. voters’ decisions in 2018 to mandate voter ID and lower the state’s cap on income tax rates. Voters approved both items as amendments to the N.C. Constitution.

Carolina Journal has led coverage of the debate over the prospect of forced removal of justices, also called “involuntary recusal.”

Plaintiffs asked the court to remove Barringer because she was a state senator at the time the General Assembly voted to place the amendments on the statewide election ballot. Berger is targeted for removal because his father is the top elected officer in the state Senate. In that role, Phil Berger Sr. is a named defendant in the constitutional amendments case.

The brief from professors of professional responsibility says the decision about forced removal raises “fundamental issues” of an “independent judiciary” and the right of parties in a court proceeding to have an “impartial hearing.”

“Under those requisites, the law determines impartiality not by whether the judge believes he or she can be impartial, but instead by whether a reasonable person could reasonably question the judge’s impartiality,” according to the brief.

The N.C. Code of Judicial Conduct and the “norms of judicial ethics” require Barringer and Berger’s disqualification, according to the brief. The professors urge the Supreme Court to order the two justices’ disqualification, “to prevent undermining public confidence in the judiciary.”

The separate brief from constitutional law professors offers additional arguments in favor of forced removal. “Our analysis of the leading cases … suggests that the continued presence on this appeal of the two Associate Justices under challenge would violate plaintiff’s rights,” it states.

“The Court has never developed formal procedures to guide its course if justices do not voluntarily act to recuse themselves despite circumstances that warrant it,” the constitutional law professors write. “Though perhaps unwelcome, that time has now arrived.”

The new briefs offer a stark contrast to an Oct. 22 brief submitted by retired UNC-CH law professor John Orth. The author of an often-cited book on the N.C. Constitution, Orth argued that forced removal of Barringer and Berger would violate the constitution in at least three ways.

Two days after Orth’s brief, three former N.C. Supreme Court chief justices — two Democrats and one Republican — made the case for the state’s tradition of relying on voluntary recusal of justices. They shared their thoughts in a Raleigh News and Observer column.

A group of retired Appeals Court judges, all Democrats, filed an Oct. 28 brief supporting forced removal.

The law professors’ new briefs arrived two days before the deadline for parties in NAACP v. Moore to submit their own arguments for and against forced removal of Berger and Moore. Once those briefs have been submitted Nov. 4, both sides in the case will have additional time to respond to the opposing arguments.

It’s unclear if or when the Supreme Court will act on removing Barringer and Berger from the amendments case. Only after the court makes that decision could it reschedule oral arguments on the case’s merits.