A group of retired N.C. State Court of Appeals Judges, all Democrats who chaired the N.C. Judicial Standards Commission has joined forces with fellow Democrats on the N.C. Supreme Court in supporting forcibly removing two GOP justices from a critical constitutional amendments case.

The Judicial Standards Commission was created in 1971, now codified as Article 30 of Chapter 7A of the N.C. general statutes. The stated purpose of the commission is to “provide for the investigation and resolution of inquiries concerning the qualification or conduct of any judge or justice of the General Court of Justice.”

The retired Democrat Judges Gerald Arnold, Wanda G. Bryant, Sidney S. Eagles, Jr., and John B. Lewis, Jr., filed a friend of the court brief with the court stating that the former Judicial Standards Commission chairs, although retired from the bench, have an abiding interest in protecting the integrity of the judicial process and preserving public confidence in North Carolina’s judiciary.

The four attack the well-respected Standards Commission in North Carolina they once led.

“The sole enforcement mechanism available to the Judicial Standards Commission with respect to disqualification is after-the-fact discipline. Such a ‘remedy’ is clearly deficient in that it provides no relief to the party aggrieved by the failure to recuse and only punishes the judge or justice retrospectively without offering the judge any mechanism for correction of a potentially improper subjective decision before it becomes irrevocable.”

The judges also argue that the N.C. Supreme Court should adopt objective standards allowing for forced removal from cases, in part because “the individual judge’s ‘search for actual bias’ is just one step in the judicial process” of applying “objective standards [that] may also require recusal whether or not actual bias exists or can be proved.”

The retired Democrat judges dismiss the idea that in an elected judiciary the voters are sufficient to resolve conflicts, such as having a family member serving in the legislature or past service in the legislature by the justice.

Justice Phil Berger Jr. 

When the NAACP filed its motion for recusal it pointed to the fact that Phil Berger Sr., as the president pro tempore of the state Senate, is a “named” defendant in the case. Critics of the proposed forced removal point out that state law requires the House speaker and Senate president pro tem to be named in suits against the state questioning the constitutionally of official state action by the legislature.

The Democrat judges point to the fact that the leaders of the General Assembly are ultimately in charge of the legal strategy defending the state as a conflict between Justice Phil Berger Jr. and his father, Berger Sr.

“The role now played by the President Pro Tempore of the Senate in constitutional challenges to litigation is not a vestigial remnant of some ancient legal doctrine, but a more recent development that came about during the tenure of the current president pro tempore and with his approval. (Senate Bill 257 is signed by him.) Nor can the control that he jointly asserts with the House Speaker — i.e., with designated standing as a necessary “real party in interest,” with “final decision— 24 -—making authority,” and the ability to hire and designate lead counsel (and even seek recusal of Attorney General) — be considered “nominal” in any normal use of that word. In addition, in considering the issue, the identity of the particular President Pro Tempore — at the time of passage of the amendments, at the time of the institution of the pending challenge, and now — is a salient issue that cannot be entirely ignored.”

The overarching concern is that “[i]n these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result.”

Justice Tamara Barringer

Despite the fact that many former legislators have moved directly from Jones Street to the bench, the retired Democrats argue:

“A single individual who both participates in the passage of legislation and later passes on its constitutionality is arguably contravening the constitution’s prescription for separation of powers. … The overarching concern is that “[i]n these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the (legislative) result.”

The brief stands in sharp contrast to recent comments by three former N.C. Supreme Court Chief justices, two Democrats and one Republican, who argue the system of voluntary recusals following throughout the State Supreme Court’s 200-year history has served the state and the justice system well.

“Only the individual justice can examine her or his conscience. Only the individual justice knows whether she or he can overcome any bias and render a fair and objective decision.”

A retired University of North Carolina law school constitutional expert has also filed a brief with the court arguing forced removal of Supreme Court justices from consideration of a case would be “particularly dangerous.”

“Involuntary recusal would be particularly dangerous. As an interpretation of the North Carolina Constitution by the Supreme Court of North Carolina, it is unclear how it could be reviewed and corrected. And it would set a precedent pregnant of many harms.”

The former chairs of the Judicial Standards Commission leave out a critical fact about the Commission they used to lead. While the commission is an “after the fact” review to determine judicial disciplinary matters, the commission also provides confidential guidance on these matters before action is taken.

The retired Democrat judges know this and know that any reasonable judge would request private guidance.

Carolina Journal has previously argued that these confidential assessments must exist in this case and have cleared the Berger and Barringer to sit on the amendments case.