Plaintiffs in the long-running Leandro school funding lawsuit are seeking Justice Phil Berger Jr.’s recusal from the N.C. Supreme Court’s consideration of the case.
Paperwork requesting Berger’s recusal arrived two days after Republican legislative leaders urged Justice Anita Earls to recuse herself from the case.
Earls is a Democrat. Berger is a Republican. Democrats hold a 4-3 majority on the state Supreme Court.
“Recusal is appropriate and necessary because Justice Berger’s father intervened in this case on 8 December 2021 for the purpose of appealing the 10 November 2021 trial court order which is presently before the Court,” wrote plaintiffs’ attorney Melanie Black Dubis. “The appeal filed by Justice Berger’s father is separate from the appeal filed by the Defendant State of North Carolina. Indeed, Justice Berger’s father takes a position directly at odds with that of the Defendant State.”
Senate leader Phil Berger, R-Rockingham, has intervened in the Leandro case, along with House Speaker Tim Moore, R-Cleveland, in their official positions as top officers in the N.C. General Assembly’s two chambers.
“Intervenor Berger falls within the third degree of relationship to Justice Berger as it is defined under Canon 3(C)(1) and the civil law system. Indeed, a parent-child relationship, such as that between Intervenor Berger and Justice Berger, constitutes a first degree of relationship,” Dubis wrote. “Justice Berger should recuse himself from deciding an appeal to which his father is a participant.”
Leandro plaintiffs contend that Senate leader Berger’s role in the Leandro case is different from others in which Justice Berger has rejected recusal.
“Plaintiffs did not name Intervenor Berger as a defendant in this case,” Dubis wrote. “And his appearance in this case is certainly not ‘a matter of procedure.’ This lawsuit has been litigated for nearly 28 years against the Defendant State of North Carolina and Defendant State Board of Education. Intervenor Berger actively sought to insert himself in this case — nearly three decades after its filing — when he affirmatively intervened on 8 December 2021 for the very purpose of challenging the order that is now before Justice Berger and this Court in this appeal.”
Under a Dec. 23, 2021, Supreme Court order, Justice Berger has the right to decide for himself whether to take part in the Leandro case. He also can decide whether to submit the recusal decision to the rest of the court.
“Plaintiffs respectfully move and request Justice Berger to recuse himself from this matter,” Dubis wrote. “In the event such motion is referred to the entire Court, Plaintiffs respectfully move the Court for the recusal of Justice Berger.”
On Wednesday, Berger and Moore’s legal team asked Earls to recuse herself from the case.
“Justice Earls participated in this case as an attorney representing Plaintiff-Intervenors,” according to a motion from attorney Matthew Tilley, who represents legislative leaders.
The motion references a Leandro-related complaint filed in February 2005. “Justice Earls signed the Intervening Complaint on behalf of the Plaintiff-Intervenors as an attorney at the University of North Carolina School of Law Center for Civil Rights,” Tilley wrote. “The Intervening Complaint identifies Justice Earls and others as ‘Attorneys for Plaintiff-Intervenors.’”
That’s not Earls’ only prior connection to the case. Legislators’ motion highlights a friend-of-the-court, or amicus, brief she filed in 2012 to support the plaintiffs.
“The North Carolina Code of Judicial Conduct provides that a judge should disqualify himself or herself when they previously participated in the case as a lawyer for the parties,” Tilley wrote.
The N.C. Supreme Court will hear oral arguments Aug. 31 in the Leandro case, officially titled Hoke County Board of Education v. State. Dating back to 1994, the case already has produced major state Supreme Court rulings in 1997 and 2004.
Now the state’s highest court will decide what to do about a Nov. 10, 2021, trial court order in Leandro.
The November order from Judge David Lee would have forced the state controller, treasurer, and Office of State Budget and Management to transfer $1.75 billion out of the state treasury. Lee ordered the money sent to the state Department of Public Instruction, Department of Health and Human Services, and the University of North Carolina System for education-related expenses.
Those expenses were tied to the second and third years of a court-endorsed Comprehensive Remedial Plan. San Francisco-based education consultants developed the plan with the endorsement of Leandro plaintiffs and state government lawyers. The multiyear, multibillion-dollar plan was designed to help resolve the Leandro dispute.
State Controller Linda Combs challenged Lee’s November 2021 order in court. Combs argued that she could not transfer any money from the state’s coffers without authorization from the General Assembly.
The N.C. Court of Appeals agreed with Combs. That court issued a rare “writ of prohibition” blocking Lee’s order. The state Supreme Court then agreed to hear the case, but ordered the trial court to re-examine the $1.75 billion order. Justices asked the trial judge to determine whether a new state budget signed into law on Nov. 18, 2021, affected the contents of Lee’s order.
On the same day that the full Supreme Court ordered the new trial court review, Chief Justice Paul Newby replaced Lee with Special Superior Court Judge Michael Robinson.
In reviewing Lee’s order, Robinson agreed with state government lawyers that the budget covered almost $1 billion of the items on Lee’s list. In an April 26 decision, Robinson scaled back the size of Lee’s original order to $785 million.
Robinson also struck the portion of Lee’s order calling for the forced money transfer. While the new Leandro judge agreed that the state owed the money to the state agencies and university, his order said nothing about how the money would reach its destination.
Now plaintiffs and state Justice Department lawyers argue that the Supreme Court should overrule Robinson and restore the forced money transfer.
On the other side of the argument, legislative leaders want the state Supreme Court to throw out Lee’s entire Nov. 10 order. Lawmakers say the state budget’s education provisions rendered Lee’s order moot.
More legal briefs are due in the Leandro case on Aug. 1 and Aug. 12.