North Carolinians call for fair courts as judges conflicts arise

Last week, SELC, in partnership with Forward Justice, filed a brief on behalf of the North Carolina NAACP asking the North Carolina Supreme Court to adopt clear, transparent procedures for determinations about when judges should not oversee particular cases.

The brief was in response to a request from the North Carolina Supreme Court asking for guidance on the issue. The questions about how to approach the question of judicial recusal have come into sharp focus after SELC and the N.C. NAACP filed motions earlier this summer requesting the recusal of Justices Philip Berger Jr. and Tamara Barringer in their longstanding challenge to two constitutional amendments, including one imposing a voter ID requirement. Justice Berger is the son of the named defendant, Senate leader Phil Berger Senior, and Justice Barringer was part of the Senate when the challenged constitutional amendments were passed.

In the brief, the parties point to the longstanding constitutional principle that litigants have a right to a fair tribunal that is free from bias. The parties also note that a fair and unbiased judiciary is essential for public faith in the courts. And the parties note that a transparent and consistent system for judicial recusal will help ensure continued public faith in a state judicial system that, due to a swath of legislation passed in the past decade, is becoming increasingly political.

“This case has always been about big issues,” said SELC Senior Attorney Kym Hunter. “Our underlying case makes the straightforward argument that a legislature that does not represent all North Carolinians cannot act to amend our state constitution. We are eager to get a final ruling on that ultimate question and pleased to assist the court in its efforts to resolve critical questions about the impartiality and integrity of our courts. At the end of the day, we simply want to ensure that all North Carolinians have their voices heard and all to get a fair shake before the courts.”

Currently, the North Carolina Supreme Court does not have a standard system to handle recusal issues. Practices appear to have been inconsistent over time but, for a significant portion of the court’s history, decisions about bias and the need for recusal appear to have been left to the discretion of individual justices. In their brief, the parties argue that this should change. Justices, like all humans, are not good judges of their own bias, and decisions about recusal would be more fairly made by the entire court.

SELC is in good company in pushing for a standardized and transparent system for handling recusals. The following groups filed briefs echoing the N.C. NAACP’s request for transparent recusal standards: five former heads of the Judicial Standards Commission, current North Carolina professional responsibility law professors, North Carolina constitutional law professors, the North Carolina legislative Black caucus, a group of national experts on professional responsibility and judicial ethics, and The Brennan Center for Justice.

In addition to pushing for clear, transparent standards, many of these groups support SELC’s argument that Justices Berger and Barringer should be recused from the underlying case. The fact that they have not yet done so further illustrates why so many North Carolinians are urging creation of a new, transparent system that involves the whole court.