State Supreme Court splits, 4-2, on Berger’s participation in Leandro case

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  • The state Supreme Court split, 4-2, on allowing Justice Phil Berger Jr. to take part in next week's Leandro hearing. Berger's fellow Republican justices voted yes. Democratic justices voted no.
  • Plaintiffs in the case sought Berger's recusal because his father is a party in the case as the top officer in the state Senate.
  • Berger had rejected an earlier recusal request in the same case. A court order Friday called the latest recusal request an "impermissible challenge."
  • A nine-page dissent from Democratic Justice Allison Riggs criticized Berger's decision. In explaining his decision to submit his recusal decision to the full court, Berger's "unnecessary commentary itself undermines public confidence in the Court," Riggs wrote.

The state Supreme Court split, 4-2, Friday on allowing Justice Phil Berger Jr. to take part in next week’s hearing in the 30-year-long education funding dispute commonly known as Leandro. That means all seven justices will take part in oral arguments on Feb. 22.

Berger’s four Republican colleagues voted in favor of his participation. The two Democratic justices supported Berger’s recusal from the case. Berger did not vote.

Friday’s order arrived two weeks after Democratic Justice Anita Earls announced her decision to reject a recusal request from state legislative leaders.

Supreme Court rules allow justices to decide recusal requests themselves. Justices also can submit the requests to the full court. Berger chose the second option on Feb. 5, “erring on the side of prudence.”

Plaintiffs in the case sought Berger’s recusal because his father is an intervening party in the case as the top officer in the state Senate. The younger Berger rejected a similar recusal request in the Leandro case in August 2022.

“Because it offers no new grounds for recusal, plaintiffs’ pending recusal motion amounts to an impermissible challenge to Justice Berger’s denial of their first motion,” according to the new court order signed by Justice Trey Allen. “Under the Recusal Procedure Order, when a Justice rules on a recusal or disqualification motion, ‘[t]hat determination shall be final.’ The motion is therefore dismissed.”

The four-page order prompted a nine-page dissent from Justice Allison Riggs, the court’s other Democrat. She focused on the contrast between Berger’s and Earls’ recent responses to recusal requests.

“In this instance, Justice Berger has opted for the alternative approach, referring the motion to the entire Court because ‘members of this Court should strive to fortify public trust, and unilateral action in this matter could undermine public confidence.’ In my view, this unnecessary commentary itself undermines public confidence in the Court,” Riggs wrote.

“This Court decided in 2021 that it was appropriate for an individual Justice to decide, with finality, motions requesting his or her recusal. To suggest that following that procedure, expressly approved by this Court, ‘could undermine public confidence,’ — particularly when, mere days earlier, Justice Earls issued a detailed opinion explaining her decision to deny a recusal motion filed by Senator Philip E. Berger, Sr., and the other legislative defendants targeting her in this same case — can only serve to fuel public attacks on a Justice who followed the proscribed administrative rules for addressing recusal motions,” Riggs added.

“In his order, Justice Berger also expresses the opinion that ‘the substance of this motion has already been decided’ and further suggests the filing is sanctionable,” Riggs wrote. “Signaling to one’s colleagues what action should be taken and how one would vote, before then referring the motion to one’s colleagues, makes the decision to refer to the entire Court seem performative rather than substantive. And Justice Berger has clearly found a receptive audience in the majority, which dismisses the recusal motion without even purporting to independently decide the question presented.”

Riggs highlighted Senate Leader Berger’s active role in the current Leandro dispute.

“Legislative-Intervenors — again, the lead Senator being the father of Justice Berger — have affirmatively inserted themselves into this lawsuit,” Riggs wrote. “Whatever the rationale for avoiding recusal, it cannot be because this is simply a ‘suit against a government official in his or her official capacity.’ Indeed, one could reasonably conclude that Legislative-Intervenor’s injection of themselves into this litigation in pursuit of positive relief heightens, rather than diminishes, the appearance of impropriety here.”

The dissent argued that the older Berger “repeatedly tied his policy objectives to the maintenance of a multi-billion-dollar surplus.”

“Any opinion from this Court reversing or setting aside the trial court’s order drawing down funds against that surplus necessarily bears upon Senator Berger’s ability to deliver on his policy objectives and the campaign promises he has made to voters in seeking to maintain his elected office,” Riggs argued. “Put bluntly, a son’s vote to deliver his father a campaign ‘win’ in an election year substantially affects the latter’s personal and financial interests.”

“I would vote to allow this motion to ensure that the fundamentally necessary appearance of impartiality can be maintained in this case,” Riggs added.

“Common sense dictates that some bonds are simply too close, and some circumstances simply too pointed, for any judicial order of this Court — short of allowing plaintiffs’ motion — to exorcise the specter of doubt lingering in the minds of the public in this case. Recusal is the sole sacrament, and I would solemnly invoke it here,” Riggs concluded.

The state Supreme Court’s latest consideration of the education funding case results from an appeal from top legislators.

Legislators challenge an April 2023 court order from Superior Court Judge James Ammons. Ammons called on the state to spend an additional $677 million for education-related purposes across North Carolina. That money is tied to a multiyear, court-endorsed statewide comprehensive remedial plan.

The latest court filing from Republican state legislative leaders emphasized their argument that a trial judge lacked “subject matter jurisdiction” to order the government to take any action on statewide education spending.

While many people refer to the case as Leandro, the name of the original lead plaintiff in the 1994 lawsuit, lawmakers and Republican Supreme Court justices label the case “Hoke County.” A November 2022 decision from the state’s highest court is known either as Leandro IV or Hoke County III.

“Despite Appellees’ repeated — and repetitive — assertions that Hoke County III1 has already answered all of the questions presented by this appeal, the fact remains that Hoke County III did not address whether Plaintiffs had standing to obtain statewide relief in the form of orders requiring the State to implement and fund the CRP,” lawmakers’ lawyers wrote. “This is a critical problem.”

“Plaintiffs never even alleged, much less proved, the existence of a statewide violation,” the brief continued. “Instead, Plaintiffs have asserted claims that, by their very nature, turn on the conditions in their individual school districts. The trial court’s orders requiring the CRP thus raise an obvious and fundamental question: If Plaintiffs only asserted claims concerning conditions in their individual districts, how could they have standing to represent — or obtain orders on behalf of — students in districts where they do not live?”

Lawmakers emphasized the decision in a 2004 case known as Leandro II or Hoke County I. “In Hoke County I, the Court held that, at most, Plaintiffs only had standing to obtain relief on behalf of the students in their respective school districts — not those who live anywhere else,” lawmakers’ brief argued. “Thus, Plaintiffs are correct that the outcome of this appeal is dictated by the ‘law of the case.’ They just fail to recognize the law that governs was established twenty years ago in Hoke County I, rather than Hoke County III.”

“The conclusion that Plaintiffs lacked standing to obtain relief beyond their individual school districts has serious implications for this case,” the brief continued. “It means that the trial court lacked subject matter jurisdiction to issue orders requiring ‘the State’ to develop, implement, and fund a statewide ‘remedy’ in the form of the Comprehensive Remedial Plan.”

Multiple trial court orders in the case “all exceeded the court’s jurisdiction,” lawmakers argued. “For that reason, the entire series of orders, starting with Judge [David] Lee’s 2018 orders requiring development of the CRP through to Judge Ammons’ order on remand, should be overturned for lack of subject matter jurisdiction.”

The state Supreme Court voted 5-2 in October to take another look at the case. That decision split the court along party lines. Republicans agreed to grant another review. Democrats dissented.

Earls explained in a 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.”

“We already grappled with and resolved the question of subject matter jurisdiction in this case — nothing imperils that decision or requires us to revisit it,” she added. “But by alchemizing its disagreement with Leandro IV into a ‘jurisdictional’ issue, the majority gives itself a tool to rewrite — and litigants to resist — our earlier decisions.”

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.”

“Even if we again failed to address jurisdictional concerns, these issues could be raised later in a collateral attack on the trial court’s order, causing tremendous chaos if steps are already being taken to execute the novel relief in the remedial order,” Berger warned.

“In its rush to publish an opinion in the prior matter, the majority declined to address fundamental subject matter jurisdiction questions,” Berger concluded. “To be sure, these issues were raised, but the majority chose to ignore the bedrock legal principle that courts must examine jurisdiction to act. Even legal neophytes understand that subject matter jurisdiction can never be waived and can be raised at any time.”

“Because these crucial issues of subject matter jurisdiction cannot be waived and must be addressed by this Court, it is a sound exercise of this Court’s constitutional role to take this case and permit the parties to brief the various issues.”