Opinion
No. 131P24
08-21-2024
Roy A. COOPER, III, in his official capacity as Governor of the State of North Carolina V. Philip E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; the State of North Carolina; North Carolina Environmental Management Commission; and JOHN (JD) SOLOMON, in his official capacity as Chair of the North Carolina Environmental Management Commission; Christopher M. Duggan, in his official capacity as Vice-Chair of the North Carolina Environmental Management Commission; and Yvonne C. Bailey, Timothy M. Baumgartner, Charles S. Carter, Marion Deerhake, Michael S. Ellison, Steven P. Keen, H. Kim Lyerly, Jacqueline M. Gibson, Joseph Reardon, Robin Smith, Kevin L. Tweedy, Elizabeth J. Weese, and Bill Yarborough, in their official capacities as Commissioners of the North Carolina Environmental Management Commission
Matthew F. Tilley, Attorney at Law, Charlotte, For Philip E. Berger (Official Capacity), et al. Sean E. Andrussier, Attorney at Law, Raleigh, For Philip E. Berger (Official Capacity), et al. Michael A. Ingersoll, Attorney at Law, For Philip E. Berger (Official Capacity), et al. Emmett Whelan, Attorney at Law, Charlotte, For Philip E. Berger (Official Capacity), et al. Jim W. Phillips, Jr., Attorney at Law, Greensboro, For Roy A. Cooper (III) (Official Capacity). Eric M. David, Attorney at Law, Raleigh, For Roy A. Cooper (III) (Official Capacity). Daniel F.E. Smith, Attorney at Law, Greensboro, For Roy A. Cooper (III) (Official Capacity). Amanda S. Hawkins, Attorney at Law, Raleigh, For Roy A. Cooper (III) (Official Capacity). Amar Majmundar, Senior Deputy Attorney General, For State of North Carolina. Phillip T. Reynolds, Special Deputy Attorney General, For North Carolina Environmental Management Commission. Stephanie A. Brennan, Special Deputy Attorney General, For State of North Carolina.
From N.C. Court of Appeals 24-440; From Wake 23CV28505-910, Tenth District
Matthew F. Tilley, Attorney at Law, Charlotte, For Philip E. Berger (Official Capacity), et al. Sean E. Andrussier, Attorney at Law, Raleigh, For Philip E. Berger (Official Capacity), et al.
Michael A. Ingersoll, Attorney at Law, For Philip E. Berger (Official Capacity), et al.
Emmett Whelan, Attorney at Law, Charlotte, For Philip E. Berger (Official Capacity), et al.
Jim W. Phillips, Jr., Attorney at Law, Greensboro, For Roy A. Cooper (III) (Official Capacity).
Eric M. David, Attorney at Law, Raleigh, For Roy A. Cooper (III) (Official Capacity).
Daniel F.E. Smith, Attorney at Law, Greensboro, For Roy A. Cooper (III) (Official Capacity).
Amanda S. Hawkins, Attorney at Law, Raleigh, For Roy A. Cooper (III) (Official Capacity).
Amar Majmundar, Senior Deputy Attorney General, For State of North Carolina.
Phillip T. Reynolds, Special Deputy Attorney General, For North Carolina Environmental Management Commission.
Stephanie A. Brennan, Special Deputy Attorney General, For State of North Carolina.
ORDER
Plaintiff Roy A. Cooper, III, in his official capacity as Governor of North Carolina, filed a motion and suggestion of recusal seeking the recusal of Justice Philip E. Berger, Jr., in this case. Justice Berger referred the motion to this Court by a special order entered on 24 June 2024. Under this Court’s Recusal Procedure Order of 23 December 2021, a justice who receives a recusal or disqualification motion may either (1) rule on the motion or (2) refer the motion to the Court for decision. 379 N.C. 639, 866 S.E.2d 417 (2021). For the reasons explained below, we DENY the motion.
The Governor argues that recusal is necessary pursuant to Canon III.C.(1)(d)(i) and (iii) of the Code of Judicial Conduct because Justice Berger’s father, Senator Philip E. Berger, is a defendant and has a direct, personal, and substantial interest in the outcome of this case. In support of this contention, the Governor notes that the legislation which is the subject of this lawsuit confers certain powers on the President Pro Tempore of the Senate, a post currently held by Senator Berger. For example, Senate Bill 512 authorizes the President Pro Tempore to recommend for Senate approval three—an increase of one—of the Coastal Resources Commission’s thirteen members and seven— an increase of four—of the Board of Transportation’s twenty members. See An Act to Increase the Accountability of Public Boards and Commissions to the Citizens of North Carolina by Changing the Appointment Structure of Those Boards and Commissions, S.L. 2023-136, §§ 4.1.(a), 5.1(a), https://www. ncleg.gov/EnactedLegislation/SessionLaws/ PDF/2023-2024/SL2023-136.pdf.
"On motion of any party, a judge should disqualify himself/herself in a proceeding … where … [t]he 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 … [i]s a party to the proceeding … [or] … [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding[.]" North Carolina Code of Judicial Conduct, Canon III.C(1)(d)(i), (iii) (2020).
To be sure, though, we cannot by rule infringe upon the due process rights of the litigants who appear before us.
Based on the facts before us, we do not agree that the Code of Judicial Conduct bars Justice Berger’s participation in this case. Senator Berger is a party to this litigation solely in his official capacity as President Pro Tempore, not in any personal capacity. State law requires the President Pro Tempore to be joined as a defendant in lawsuits that dispute the constitutionality of statutes. N.C.G.S. § lA-1, Rule 19(d) (2023). In such litigation, state law regards the President Pro Tempore as a stand-in for the General Assembly.
It is the public policy of the State of North Carolina that in any action in any North Carolina State court in which the validity or constitutionality of 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 ….
N.C.G.S. § l-72.2(a) (2023) (emphasis added). See also N.C.G.S. § lA-1, Rule 19(d) (2023) ("The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, must be joined as defendants in any civil action challenging the validity of a North Carolina statute …." (emphasis added)).
Thus, as a matter of law and public policy, Senator Berger represents the interests of the General Assembly in this case, not his own. See Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721 (1998) ("[O]fficial-capacity suits are merely another way of pleading an action against the governmental entity."); Harwood v. Johnson, 326 N.C. 231, 238, 388 S.E.2d 439 (1990) ("A suit against defendants in their official capacities, as public officials … is a suit against the State").
Our view is consistent with the substance of the challenged legislation. It grants appointment powers to the office of the President Pro Tempore, not to Senator Berger personally. E.g., S.L. 2023-136, § 5.1.(a) (adding one member of the Coastal Resources Commission to be "appointed by the General Assembly upon recommendation of the President Pro Tempore of the Senate"). Senator Berger will lose those powers the moment he ceases to occupy that office, even if he remains a member of the Senate.
It is possible that different facts would establish a basis for recusal even if Senator Berger were sued in his official capacity as President Pro Tempore. Recusal could be necessary, for instance, if challenged legislation conferred a financial benefit on the President Pro Tempore sufficient to give his close relations "a financial interest in the subject matter in controversy or in a party to the proceeding." North Carolina Code of Judicial Conduct, Canon III.C(1)(c).
Scholars examining judicial recusals in the federal courts have identified close familial relations as a clear-cut basis for recusal. See Dane Thorley, The Failure of Judicial Recusal and Disclosure Rules: Evidence from a Field Experiment, 117 Nw. U. L Rev. 1277, 1302 (2023) (recognizing "familial relationships’’ as a conflict "subject to bright-line [federal] per se recusal rules" in which "less judicial discretion [to refuse recusal] is involved" and where refusal to recuse would "almost certainly result in successful appeal and possibly an ethical sanction").
The Governor also argues that Justice Berger’s recusal is mandatory under the Due Process Clause of the Fourteenth Amendment. Again, we disagree.
"No State shall … deprive any person of life, liberty, or property, without due process of law …. " U.S. Const. amend. XIV, § 2.
Most recusal determinations do not raise constitutional issues. Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 876, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). When it comes to state courts, recusal rules based on familial relationships have traditionally been entrusted to the discretion of state legislatures. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ("[M]atters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.").
In Caperton, the Supreme Court of the United States recognized that due process concerns can oblige a judge to recuse herself "when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " 556 U.S. at 872, 129 S.Ct. 2252 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). The Supreme Court identified two categories of cases wherein it had previously held that recusal was constitutionally necessary: (1) cases in which the judge had a financial interest in the outcome and (2) criminal contempt proceedings in which the judge "was challenged because of a conflict arising from his participation in an earlier proceeding." Id. at 879–80, 129 S.Ct. 2252. Based on the principles articulated in those precedents, the Court held that the Due Process Clause required a state supreme court justice to recuse himself from the appeal of a $50 million verdict against a corporation whose chairman had contributed more than $3 million to support the justice’s campaign while the appeal was pending. Id. at 884-86, 129 S.Ct. 2252.
This case does not involve any of the scenarios discussed in Caperton. The Governor has not argued that Justice Berger stands to gain anything from the outcome of this litigation or that this case played a role in his election. Given this circumstance and the reality that the claims against Senator Berger are actually claims against the General Assembly, we conclude that the Due Process Clause does not compel Justice Berger’s recusal. "The ultimate question, and indeed the touchstone of all recusal issues, is ‘whether the justice can be fair and impartial[.]’ " NAACP v. Moore, 380 N.C. 263, 264, 866 S.E.2d 476 (2022) (Berger, J.) (internal quotation marks omitted). In his order denying a similar recusal motion in another case, Justice Berger explained that the lawsuit was really against the State, not against his father, and that he was confident in his ability to discharge the duties of his office in a fair and impartial manner. Id. We believe that Justice Berger can and will execute his responsibilities in this case fairly and impartially. The motion and suggestion of recusal is hereby DENIED.
The Governor does allege that "Senator Berger is a powerful political ally who has materially supported his son's campaigns." This vague allegation of support falls far short of the detailed contribution records relied on by the Supreme Court in Caperton.
By order of the Court in Conference, this the 21st day of August 2024.
Justice Berger did not participate in the consideration of this motion.
Justice RIGGS dissenting.
On 11 June 2024, Governor Cooper, the plaintiff in this action, moved to recuse Associate Justice Berger because the challenged legislation gives his father—Senator Phil Berger, the President Pro Tempore of the North Carolina Senate—new control over the Economic Investment Committee and multiple state commissions and boards. On the same day, in parallel litigation challenging a different statute on the same grounds, the Governor also sought the recusal of Justice Berger. Plaintiff-Respondent’s Motion and Suggestion of Recusal or Disqualification of Associate Justice Berger, Cooper v. Berger, — N.C.—, 901 S.E.2d 634 (2024). In both cases, according to the Governor, the North Carolina Code of Judicial Conduct and the Due Process Clause of the Fourteenth Amendment to the United States Constitution warrant Justice Berger’s recusal. Justice Berger referred both motions to this Court. And today, the majority allows Justice Berger to participate in yet another case where his father is a named party with a direct interest in the outcome. See, e.g., Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 866, 867, 896 S.E.2d 922 (2024) (denying plaintiff’s motion for Justice Berger to recuse in a case where "intervenor-defendant Senator Philip E. Berger … is a party to th[e] litigation solely in his official capacity as President Pro Tempore of the Senate"). Because I believe the plain language of the Code of Judicial Conduct requires Justice Berger’s recusal, I respectfully dissent.
Canon 3C of the Code of Judicial Conduct provides that:
(1) On a motion of any party 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:
….
(d) 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:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding[.]
….
N.C. Code Jud. Conduct 3C(1) (emphases added).
Here, there is no question that Senator Berger is a person "within the third degree of relationship" to his son, Justice Berger. See N.C.G.S. § 104A-1 (2023) (describing how to compute degrees of kinship). The Code of Judicial Conduct does not exempt a judge from recusal even when their family member is a party in their official capacity. In fact, the plain language points the opposite way. By requiring recusal when a judge’s family member is "an officer, director, or trustee of a party," the Code of Judicial Conduct establishes clear recusal standards when the judge’s family member is party to a proceeding, even in their official capacity.
This Court has endorsed recusal when the familial relation is even more attenuated than that of a father and son. In a dispute involving the North Carolina Teachers’ and State Employees’ Retirement System, this Court identified that family members of five of the seven justices were retirees of the public school system. Lake v. State Health Plan for Tchers. & State Emps., 376 N.C. 661, 663-64, 852 S.E.2d 888 (2021). These familial relationships included grandparents, mothers, a father, a mother-in-law, a brother-in-law, and an aunt. Id. The Court applied Canon 3D, concluding that the justices were "disqualified from participating in the consideration and decision of this case based upon one or more of the family relationships set forth above unless the parties and their lawyers file a written agreement stipulating that each justice’s basis for disqualification is immaterial or insubstantial." Id. at 664, 852 S.E.2d 888. In that case, the Court noted that it could invoke the rule of necessity because "actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant's constitutional right to have" their case heard and, of course, four justices are required to hear a case. Id. (quoting Boyce v. Cooper, 357 N.C. 655, 655, 588 S.E.2d 887 (2003)). But in this case, the rule of necessity does not apply because Justice Berger’s recusal would not deny the parties their constitutional right to present a question to this Court.
Justice Berger himself has previously rejected a call for him to recuse in a case where his father was a party. N.C. State Conf of the NAACP v. Moore, 380 N.C. 263, 263-64, 866 S.E.2d 476 (2022). And before this Court’s January 2023 change in composition, he decided recusal motions on his own, as is his right. Now, though, Justice Berger has referred the motion to a newly-installed majority, which seemingly borrows from Justice Berger’s old logic and approach. But just as Justice Berger’s analysis was wrong then, this Court’s ruling is wrong now.
The Code of Judicial Conduct is promulgated by this Court, as authorized by the legislature. See N.C.G.S. § 7A-10.1 (2023) ("The Supreme Court is authorized, by rule, to prescribe standards of judicial conduct for the guidance of all justices and judges of the General Court of Justice."). Certainly, we could change the Code of Judicial Conduct to exempt a judge from recusal when that judge’s close family member is party to a case only in their official capacity.1a But we have not done so. Instead, we have promulgated and enforced conduct rules that plainly require recusal for near-family relationships. Those rules apply to all judges across this state, not just those on this Court.
The wisdom of that approach is clear— both for fair outcomes and public confidence in the judiciary . See N.C. Code of Jud. Conduct, pmbl. ("An independent and honorable judiciary is indispensable to justice in our society …. "). Imagine a scenario where a defendant walks into a courtroom only to learn that the elected district attorney prosecuting his case is the son of the elected judge presiding over his case. Few defendants would have faith that the judicial system would produce a fair and unbiased outcome— even though both the district attorney and the judge are elected officials acting in their official capacity. And likely the public at large would find this scenario equally problematic, which is why the plain language of our canons do not make any distinction about "official capacity" and require recusal when a close family member is an attorney or party in a proceeding.
To achieve the desired outcome in this case, members of this Court who typically ascribe to a strict textualist philosophy are eager to add words to the Code of Judicial Conduct. I would not so interpret the Code of Judicial Conduct, particularly because the added and inferred language is not fairly disclosed to all members of the judiciary bound by it. I suspect the reason we have not changed these rules is simple—the optics of overhauling existing ethics standards to accommodate Justice Berger and Senator Berger are problematic, to put it mildly. Any changes would have to undermine the canon’s current language requiring recusal when a judge's family member is "a party to the proceeding, or an officer, director, or trustee of a party." N.C. Code of Jud. Conduct 3C(1)(d)(i) (emphasis added).
Also unavailing is the argument that Justice Berger does not need to recuse because "[m]ore than 2.7 million North Carolinians, knowing or at least having information available to them concerning [his] father’s service in the Legislature, elected [Justice Berger] to consider and resolve significant constitutional questions." N.C. State Conf. of the NAACP, 380 N.C. at 264, 866 S.E.2d 476. Justice Berger’s election to this Court does not exempt him from the same ethical standards that bind all judges. The fact that Justice Berger, just like any other justice, would need to recuse when the Code of Judicial Conduct so requires does not lessen the significance of his election. Importantly, too, while the parties in the case could stipulate or acquiesce to Justice Berger’s participation, the Governor has not done so here, instead seeking Justice Berger’s recusal. Again, there is no mechanism whereby a popular vote can override a party’s right to seek relief under either the Code of Judicial Conduct or the Due Process Clause of the United States Constitution.
Moreover, unlike a case where familial relations are peripheral to the issues before us, see N.C. State Conf. of the NAACP, 380 N.C. 263, 866 S.E.2d 476, Senator Berger’s prospective power hinges on our ruling in this case. For example, Session Law 2023-136, provides, among other things, a seat for Senator Berger (or his designee) on the Economic Investment Committee. Act of Oct. 10, 2023, Session Law 2023-136 § 1.1. https:// www.ncleg.gov/EnactedLegislation/Session Laws/PDF/2023-2024/SL2023136.pdf. Session Law 2023-136 also expands Senator Berger’s political influence by giving him control over multiple appointments to wide ranging executive and regulatory bodies, such as the Board of Transportation, the Commission for Public Health, the Coastal Resources Commission, the Wildlife Resources Commission, the Board of Directors of the University of North Carolina Health Care System, and the Utilities Commission. Id. at §§ 3.1–8.1, 10.1.
In the related case, Session Law 2023-139 gives Senator Berger new authority to nominate two of the eight members on the State Board of Elections, and to appoint the board’s chair and executive director if the board fails to elect them. Act of Oct. 10, 2023, S.L. 2023-139 §§ 2.1, 2.5 https://ncleg.gov/EnactedLegislation/SessionLaws/PDF/2023-2024/SL2023-139.pdf. Session Law 2023-139 also gives Senator Berger the power to nominate one of the four members on each of the 100 county boards of election across the state and to appoint a chair if a county board fails to elect one. Id. at § 4.1.
Legislative Defendants argue that any benefits from the disputed legislation accrue to the position of President Pro Tempore of the North Carolina Senate rather than to Senator Berger himself. That contention is overly formalistic. The position of President Pro Tempore is currently occupied by Senator Berger. A favorable ruling for Legislative Defendants would thus augment Senator Berger’s political power and influence for at least some period of time.
By denying the motion to recuse Justice Berger, this Court discards the plain language and clear dictate of Canon 3C. North Carolina is not alone in requiring judicial recusal. Other jurisdictions also require a judge to withdraw in cases of close familial or paternal relationships. See, e.g., United. States v. Rechnitz, 75 F.4th 131, 143 (2d Cir. 2023) (holding that a district court judge abused his discretion under 28 U.S.C. § 455(a), the federal canon requiring disqualification in any proceeding in which his impartiality might reasonably be questioned by not reassigning a case where the "judge had a close, near-paternal personal relationship with" a cooperating witness who was a participant in the criminal conduct for which the defendant was charged)2a; Miss. Comm’n on Jud. Performance v. Bowen, 123 So.3d 381, 384 (Miss. 2013) (holding a trial judge's failure to recuse from asbestos litigation was judicial misconduct where his parents had previously sued and settled asbestos exposure claims against the defendants "because a reasonable person, knowing all the circumstances, would have doubts regarding [the judge’s] impartiality in the case"); In re Griego, 143 N.M. 698, 181 P.3d 690, 693 (2008) (disciplining a judge who gave family members favorable dispositions in traffic court because impartiality "required [the judge] to recuse himself in cases involving family members").
Because I think the Code of Judicial Conduct unequivocally requires recusal here, it is not necessary to even reach the due process grounds for the motion. I respectfully dissent from this Court’s decision to deny the motion to recuse.
Justice EARLS joins in this dissent.