Justice Berger must recuse himself from case that involves his father, the Senate leader

·3 min read

Is it a conflict of interest for a son to serve as a judge on a legal case directly involving his father?

The question is presented in NAACP v. Moore, which awaits a hearing before the N.C. Supreme Court. The plaintiffs formally requested Associate Justice Phil Berger Jr., son of the powerful state Senate leader, President Pro Tem Phil Berger, Sr., to recuse himself because his father is a defendant in the case. While common sense would tell us that it is improper for a son to decide his father’s case, North Carolina’s Code of Judicial Conduct fortifies that prohibition:

“A judge should disqualify himself/herself in a proceeding in which the judge’s impartiality may reasonably be questioned”, “including but not limited to instances where...the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding.”

A recent editorial succumbed to the defense’s attempts to muddy the issue and fell short of its tradition of holding elected officials to high ethical standards. The bedrock of our legal system is the trust that judges will be impartial and administer justice free from personal interests. Judges must avoid any circumstance that erodes the public trust.

The recusal process is designed to protect the integrity of our judicial system not only from conflicts of interest, but also the appearance of a conflict.

In NAACP v. Moore, the plaintiffs are challenging two state constitutional amendments, passed in 2018, to require an ID card to vote and to lower the cap on the state income tax rate. The plaintiffs argue that the state legislature did not have the authority to pass constitutional amendments because legislators’ districts were unconstitutionally racially gerrymandered.

Defendants oppose Justice Berger’s recusal on the grounds that his father is a defendant in name only as President Pro Tem of the N.C. Senate. But Sen. Berger, the state’s most powerful legislator, is no passive bystander. He played a central role in adopting the legislative maps that were later invalidated by the courts. And he orchestrated passage of the legislation at issue in the pending case — legislation enacted by the very legislature that was unconstitutionally composed. The Supreme Court’s ruling in this case will render a judgment on Sen. Berger’s leadership and directly impact his political power.

In a similar situation, Ohio Supreme Court Justice Pat DeWine recently recused himself from a case on pandemic unemployment benefits because of the role played by his father, Gov. Mike DeWine. Justice DeWine stated, “The reason for my recusal is to avoid any appearance of impropriety that might result from my father’s public involvement in this matter.”

But Justice Berger need not look as far as Ohio or COVID-19 legal debates for an example to follow. While serving on the N.C. Court of Appeals in 2020, Justice Berger recused himself from consideration of a separate challenge to the same voter ID requirement, a case in which his father was also a named defendant.

A decision by Justice Berger not to recuse himself in this case would set a new and dangerous precedent. He should instead follow Justice DeWine’s example and his own from just a year ago, preserving public trust in our legal system.

James E. Coleman, Jr. is a law professor at Duke University School of Law and co-director of the Duke Law Wrongful Convictions Clinic.

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