NC Supreme Court Justice Berger can hear case involving his father, court rules

The North Carolina Supreme Court ruled this month that Justice Phil Berger Jr. did not have to recuse himself from the rehearing of the Leandro case, involving his father, State Senate Pro Tempore Phil Berger, allowing the younger Berger to help decide the outcome.

The current case stems from the 1997 ruling of Leandro v. State, in which the state Supreme Court determined that North Carolina public school students were entitled to a “sound, basic education,” and ordered the General Assembly to fund the state’s public schools accordingly.

The question of whether Berger Jr. should recuse came ahead of the Court’s rehearing of the Leandro case last week to determine whether or not the General Assembly is required to provide funding to the state’s public schools in accordance with the 1997 Leandro ruling.

The plaintiffs in the case raised concerns about Berger Jr.’s involvement, given that Sen. Berger asked the Court to review the case, and has an interest in the outcome. Before the Court reheard the Leandro case, Justice Berger asked his fellow Justices to decide whether or not he should recuse himself, and along party-lines, they ruled 4-2 that he did not have to. Berger Jr. did not participate in the vote.

Justice Allison Riggs, a Democrat, argued that Berger Jr. should recuse himself in accordance with the judicial code of conduct, which implores judges to disqualify themselves if a family member is involved in a matter before them. In her dissenting opinion, Justice Riggs argued for Berger Jr.’s recusal, given his relationship to his father, and his father’s close involvement in the case. 

“Few bonds are closer and more enduring than that between a loving parent and child. “The tender ties of love and sympathy existing between . . . parent and child are the common knowledge of the human race, as they are the holiest instincts of the human heart,” she wrote.

Riggs also based her opinion on the personal interest that Sen. Berger has in the case, and the implications of his son having a say in the outcome. 

“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,” Riggs wrote.

This is the fourth time the Court has heard the case. It reaffirmed its original decision in 2004 and 2022. However, since the 2022 ruling, the Court has shifted from a 4-3 Democratic majority to a 5-2 Republican majority.

Last year, the Court was asked to hear the case for a fourth time by Berger, the top Republican in the state Senate, and Speaker of the House Tim Moore. The Court agreed to do so.

Speaking at a rally as oral arguments in the case were underway, Rev. William J. Barber II criticized both Senator Berger and Justice Berger. 

“For Berger, who’s the daddy, to have his son on the Court, and his son doesn’t recuse himself, it is unconstitutional and ungodly,” Rev. Barber said.

Justice Berger was not the only member of the Court who was asked to recuse themselves. Senator Berger and Speaker Moore requested that Justice Anita Earls recuse herself due to her prior involvement with plaintiffs in the case. She declined.

The request originated from Justice Earls’ work on the Leandro case in 2005 on behalf of Penn-Intervenors—a party in the case comprised of parents, students, and the Mecklenburg County NAACP—when the group sued Charlotte Mecklenburg Schools (CMS).

Justice Earls says her decision not to rescue is based on the fact that the case before the Court is separate from the complaint she signed back in 2005.

The outcome of the Court’s ruling, expected to be handed down sometime in the coming months.