State of Justice: September Ethics Updates

Is it ethical to rule in a case involving your father? 

North Carolina Supreme Court Justice Phil Berger Jr. is once again allowed to hear a case in which his father, North Carolina Senate President Pro Tem Phil Berger Sr., is one of the defendants. The case, brought by Gov. Roy Cooper (D), challenges the General Assembly’s changes to the governor’s power to appoint members of elections boards. Legislators passed a bill stripping the Governor of that power and transferring it to the legislature. This bill is similar to one the state supreme court overturned in 2018. Cooper challenged the 2023 bill and won at the superior court level. Following that decision, the legislators’ attorneys directly appealed to the supreme court, attempting to bypass the court of appeals. As a result, Cooper asked that Berger Jr. be recused from the case, due to the clear conflict of interest posed by his father’s position. Berger Jr., a Republican, refused to recuse himself and asked the other justices, a 4R-2D majority, to decide what he should do. The conservative majority found no ethical violations because Berger Jr’s father was acting in his official capacity not in his personal capacity. The two Democratic justices along with state Democratic leaders outcried this decision because no matter what capacity Berger Sr. appeared in, he still had a “direct interest in the outcome.” This is not the first time the Republican majority has left Berger Jr. rule in a case involving his father. Last year, the court decided to permit Berger Jr. to rule in a case challenging the Leandro public education funding structure previously mandated by the state supreme court. The repeated involvement of a father and son with a direct political interest in the outcome calls into question the integrity of the supreme court, and its independence from the legislative body. As Justice Riggs said, “[f]ew bonds are closer and more enduring than that between a loving parent and child.”