This post appears here courtesy of the John Locke Foundation
. The author of this post is Dr. Andy Jackson
- The North Carolina Supreme Court will hear the latest appeal in the long-running Leandro education funding lawsuit in August
- A recusal motion against Justice Phil Berger Jr. relies on the same failed arguments that plague attempts to get him removed from hearing previous cases
- Justice Anita Earls should recuse herself from Leandro due to her earlier participation as an advocate for one side in the case
Seeking a North Carolina Supreme Court justice to be removed from a case has become a go-to tactic for attorneys. The way it is now employed is as much about trying to shape public opinion on purported court biases as it is about changing court composition for certain cases. Those recusal motions have generally been based on weak arguments.
This time, however, it is different; Justice Anita Earls should recuse herself from the Leandro case.
Leandro Comes Before the North Carolina Supreme Court ... Again
Leandro v. State, commonly referred to simply as Leandro, and officially known as Hoke County Board of Education v. State, is the lawsuit that would not end. The heart of the case, which began in 1994, is a question of state education funding. It has been working its way up and down the court system for the better part of three decades.
The North Carolina Supreme Court will soon hear yet another Leandro appeal. The current round began with a November 2021 order from Judge David Lee for the state controller, treasurer, and Office of State Budget and Management to remove $1.75 billion from the state treasury to pay for a plan to implement prior rulings.
Since then, Chief Justice Paul Newby removed Lee from Leandro, replacing him with Judge Michael Robinson. Robinson, in turn, reduced the judgment from $1.75 billion to $785 million, saying that the current state budget covered about a billion dollars of Lee's order. Robinson also reversed the order requiring the forced removal of funds from the state treasury. Plaintiffs are appealing Robinson's reversal, while defendants are asking the high court to dismiss Lee's ruling altogether.
The Supreme Court will hear oral arguments the week of August 29. With the stakes high in the long-running case, both sides are turning to a tactic that had previously failed: seeking to have justices removed from the case.
Previous Calls for Judicial Removal Were Weak - and the Case for Phil Berger Jr. Recusing Himself Still Is
The previous round in North Carolina's judicial recusal wars took place in a pair of election law cases in 2021 and early 2022. Legislative defendants sought to have Democratic justices Earls and Sam Ervin IV recuse themselves from Harper v. Hall, a redistricting case. Progressive plaintiffs sought to have the Democratic majority on the North Carolina Supreme Court involuntarily remove Justice Phil Berger Jr. from the same case. Progressive also sought to have Berger and Justice Tamara Barringer thrown off NAACP v. Moore, a voter ID case.
The justices averted a potential constitutional crisis by leaving the question of recusal up to the individual justices. None of the four justices removed themselves from the cases.
The argument for Berger's removal in those cases was that his father, Phil Berger Sr., was named as a defendant in his official capacity as President Pro Tempore of the North Carolina Senate. Plaintiffs are making that same argument for Berger to recuse himself from Leandro. It fails the same test that those earlier attempts to remove him failed:
The test for Justice Berger's recusal is also simple: would Phil Berger Sr. still be a defendant ... if he resigned as president pro tem? If the answer is "no" (and it is), then Justice Berger has no personal stake in the outcome of the case, and there is no reason to suppose that he could not render a fair judgment in a case in which the president pro tem is a defendant.
It is odd that plaintiffs are dipping into that old, dry well again.
Why Earls Should Recuse Herself from Leandro
I also noted in a review of those prior recusal motions that the case for Justice Anita Earls to recuse herself was "more robust for her than for any other justices"
but that it still did not "rise to the level of requiring that she recuse herself."
This time it is different.
As laid out in the Leandro defendants' motion for Earls to recuse herself, she has already participated in the Leandro case as an attorney for one side (pages 2 and 3):
Justice Earls participated in this case as an attorney representing Plaintiff-Intervenors Rafael Penn, et al. ("Plaintiff-Intervenors") ... The Intervening Complaint identifies Justice Earls and others as "Attorneys for Plaintiff-Intervenors."
The North Carolina Code of Judicial Conduct is clear that judges should recuse themselves when "the judge served as lawyer in the matter in controversy"
The logic is simple: a person cannot be an advocate for one side in a case and then later be expected to judge that very same case impartially.
In an earlier case, Bouvier v. Porter, Earls herself recognized that. She had previously participated as a lawyer representing the plaintiffs. She recused herself from that case, as described on page four of the defendant's motion of recusal and noted on page 297 of the April 20, 2022, list of cases argued before the North Carolina Supreme Court.
While it is unfortunate that recusal motions have become political footballs, the recusal motion against Earls has merit this time. She should remove herself from the case.