Grounds for Recusal

 

Judge Tamara Barringer

NC Supreme Court Chief Justice Paul Newby’s wife, Macon Newby, contributed $6,400 to Jefferson Griffin’s campaign in June 2023. and Griffin has described Newby as his "mentor."

Brent Barringer, Associate Justice Tamara Barringer’s husband, also gave Griffin at least $6,400 for his Supreme Court campaign, according to campaign finance records.

These people will ultimately determine who won the Supreme Court election between Griffin and Allison Riggs. They're not about to acknowledge any factors that would seem to demand recusal because of campaign contributions given in the name of their spouses.

The Real, Fulminating Threat to Democracy in NC

 

Paul Newby,
"His Benevolence"

In Sunday's News&Observer, UNC Law School Professor Gene Nichol had a stark round-up of the "Six Factors That Brought Down NC Democracy in 2024." Nichol lays much of the blame for the precarious condition of democracy in North Carolina at the doorstep of the state Supreme Court, "transformed into the most partisan appellate tribunal in the United States" under the ascendancy of Chief Justice Paul Newby (a.k.a., "The Smiling Eff You") who thinks the General Assembly under Republican super-majorities is the “sacrosanct fulfillment of the people’s will.” In other words, the hand of the Almighty has bestowed its blessings on Phil Berger, and we all must do as he wishes.

Nichol:

Broadly speaking, state separation of powers issues are left in the hands of state supreme courts, unreviewable by the federal judiciary. So when the state Supreme Court says the General Assembly can do whatever it wants — including cheating on redistricting and overriding the results of elections through sore loser laws — regardless of the clear limits of the North Carolina constitution, the people of the state have no legal or effective political recourse. Such are the wages of a Supreme Court refusing to carry out its prescribed duty of independent judicial review.

The other four partisan Republicans who follow the leadership of Paul Newby:

1. Phil Berger Jr., "Baby Berger," whose very presence on the Court owes much to the power of his big daddy, Phil Senior. Junior is a "nepo baby." We wrote about his rise in January 2019. His term isn't up until 2028.

2. Tamara Barringer, the former Republican state senator until she was defeated in the 2018 Blue Wave by Democrat Sam Searcy, ran for and won her associate justice seat in 2020. She's next up for reelection in 2028.

3. Richard Dietz, whose term runs out in 2030, was originally appointed to the Court of Appeals in 2014 by Gov. Pat McCrory. 

4. Trey Allen, who clerked for Paul Newby (a.k.a., "Rumpelstiltskin"), was elected in 2022, so he's safe until 2030. 

We have a lot of years of suffering ahead of us before any potential break in the clouds.

Rumplestiltskin

The Berger Dominion

So there's a watershed legal case testing a judge's duty for recusal currently in the hands of the North Carolina Supreme Court, and here's where it started:

2018 -- Republican majorities in the General Assembly, led by Phil Berger and Tim Moore, put two ballot initiatives to the voters, who passed them -- a mandate for a voter photo ID and a constitutional cap on state income taxes. (The GOP's previous attempt to impose voter photo IDs had been ruled unconstitutional.)

2019 -- A North Carolina trial judge strikes down the amendments, declaring that since many legislators were illegitimately elected from what were previously declared as racially biased districts, they lacked the power to put the questions on the ballot.

2020 -- NC Court of Appeals overturns that trial court decision, and the case gets appealed to the NC Supreme Court.

Phil Berger Jr. 

August 2021 -- Supreme Court schedules arguments by opposing sides but pauses the proceedings after the NAACP requests that justices Phil Berger Jr. and Tamara Barringer recuse themselves from hearing the case. The reasons for recusal: Berger is the son of one of the defendants and Barringer voted for passage of the amendments as an NC senator.

30 Seconds Later -- NCGOP begins howling about a Democratic power grab at the Court.

“The attempt to disqualify them from hearing cases the voters elected them to hear is a subversion of the will of the people and an insult to every informed voter,” said House Speaker Tim Moore, who is also named as a defendant in the NAACP lawsuit.

October 2021 -- A majority of the Supreme Court votes to take the issue seriously -- should Berger and Barringer recuse themselves or be forcibly recused? The Court is 4 Ds to 3 Rs, so over the strenuous dissents by the Republican minority, the Democratic majority decides to halt proceedings until briefs can be submitted by both sides addressing 20 questions about judicial recusal, especially this one: “Does this court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?” Those legal briefs were due at the court this week.

According to the Associated Press, that question alone suggests that one, or both (Berger and Barringer), have indicated that they would not recuse themselves. "Neither responded to a request for comment that The Associated Press asked a court spokesperson to pass along to them."

Did the trial judge back in 2019 go way out on a legal limb? I personally wouldn't want to put all my weight on that particular twig, that a legally elected official's acts are illegitimate because the district that elected him was racially biased. He/she was elected and had no control over who made up the electorate.

Phil Berger Sr.

The case for Berger Junior's recusal seems so obvious it hurts my eyes. The state judicial conduct code says judges should disqualify themselves "when asked by a legal party," if they have “personal knowledge of disputed evidentiary facts” or if the judge’s near-relative is “a party to the proceeding.”

The judicial conduct code requires disqualification even if a near relative can in fact be "impartial and capable of presiding fairly over the matter before them,” NAACP attorney Kym Hunter wrote in July. Berger Junior will for sure never recuse himself. Will his fellow justices let him get away with that and further taint the North Carolina judiciary?

First Berger Jr., Then Barringer, and Now Stroud

Judge Donna Stroud

Potential Republican candidates for the Paul Newby seat on the NC Supreme Court are forming a scrum. We've noted Phil Berger Jr.'s interest in the seat and Tamara Barringer's. Now Jonathan Kappler says NC Court of Appeals Judge Donna Stroud is eyeing it too.

Source Ballotpedia: Stroud received her bachelor's degree in government summa cum laude from Campbell University at Buies Creek in 1985. She received her J.D. magna cum laude from Campbell University School of Law in 1988. She also earned an LL.M. from Duke University School of Law in 2014. She began her legal career in 1988 with the law firm Kirk, Gay, Kirk, Gwynn & Howell. She then joined the firm Gay, Stroud & Jackson, LLP in 1995. Stroud worked as a lawyer with this firm until 2004. During this time, she also served as an arbitrator for the 10th Judicial District Court and as a certified superior court mediator. In 2004, she was elected to the Wake County District Court (10th Judicial District), where she served until her election to the North Carolina Court of Appeals in 2006. She was reelected to an eight-year term in 2014. Along with fulfilling her judicial duties, Stroud currently works as an adjunct law professor at Campbell University School of Law.

In other words (and on paper), she's better qualified for the Supreme Court than either Phil Berger Jr. or Tamara Barringer.

Could be a really interesting Republican judicial primary in 2020 for the Paul Newby seat on the NC Supreme Court.

Barringer to Berger Jr.: "Not So Fast There, Scooter!"

Sen. Tamara Barringer, 2016, calling for
repeal of HB2 ("bathroom bill")
WRAL photo

Musical Chairs on NC's Highest Court
Republican Chief Justice Mark Martin announced he was stepping down this month, and Governor Cooper gets to appoint his replacement (who'll have to run for the seat in 2020). Republican Associate Justice Paul Newby immediately announced he would be giving up the Newby seat to run for Chief Justice next year. Soon after, Republican Phil Berger Jr. announced he would run for the Newby seat (as did Democratic Court of Appeals Judge Lucy Inman).

Yesterday former NC Senator Tamara Barringer announced she will also be running in 2020 for the Newby seat.

My first thought: "D'oh! Tamara Barringer saying (in effect) to Phil Berger Jr., 'I don't care who your daddy is! I'm running for the same thing you think you're entitled to!' "

Interesting, since, as a state senator, Barringer was always under Father Berger's thumb, though she's been capable of a streak of independence (see the photo).

Contrary to what I initially thought (and hattip to Gerry Cohen), there will be judicial primaries in North Carolina in 2020. The elimination of primaries for partisan judge races applied only to 2018, which was one of those Berger/Moore schemes supposed to sow chaos among Democrats. Didn't work that way, and we now have a 5-2 Democratic majority on the Supreme Court likely to move to 6-1 when Cooper appoints Martin's replacement.

If there's a Berger Jr. - Barringer primary, that'll be interesting to watch. If. Many other factors could change that: If Cooper appoints one of the sitting Democratic justices as Chief, that'll open another named seat, and Barringer could elect to run for that rather than going head to head with Berger.

Barringer had been a four-term state senator, representing the Wake County District 17, until last fall when Democrat Sam Searcy flipped the seat. Wake County has been trending away from hardline conservatism, but in announcing yesterday, Barringer sounded pretty hardcore conservative:

“In the last week, I received many calls encouraging me to run for the Supreme Court,” Barringer said in a press release Tuesday. “All of you know my love for the law and the importance of maintaining a strict Constitutional interpretation of the laws passed by the General Assembly. It is imperative that we have justices who refrain from legislating from the bench” (emphasis added).

But in 2016, she was the first Republican lawmaker to call for the "substantial and immediate" repeal of House Bill 2 due to the measure's "unintended consequences" (WRAL).

Democratic Insurgent Sam Searcy v. State Senator Tamara Barringer

Sam Searcy and his family

Last July, Holly Springs business entrepreneur Sam Searcy was hot into running to beat Republican Congressman George Holding in the 2nd Congressional District. By October Searcy had raised a half-million, more than Congressman Holding raised during the same period. But the Democratic field was becoming crowded, with other high profile candidates joining in the Democratic primary race to take on Holding, including high-tech entrepreneur Ken Romley and perennial candidate Linda Coleman, who has impressive name recognition. Searcy dropped out and announced a challenge for the NC Senate District 17 seat instead.

Cool move. If Searcy is able to move that half-mil from the federal race for the US House of Representatives to the state race for a Raleigh senate seat -- not particularly easy to do -- he'll be on a par with the Republican incumbent.

Incumbent Tamara Barringer was first elected to the chamber in 2012. She's a lawyer. She won her last reelection in 2016 with only 48.30% of the vote, against a Democrat who pulled 47.45%. The district looks ripe to flip to blue this year.

Searcy also has a law degree, but he's gotten people's attention through his entrepreneurial activities. In 2016 Searcy teamed up with some of his previous business partners and a new guy with an old-world recipe for long-grain rice distilled vodka, and they formed Graybeard Distillery in Durham, which now touts its success as "the largest grain-to-glass distillery in North Carolina."

Searcy's life story to get to that success was no bed of roses. “I’ve seen first-hand what happens when North Carolina families struggle to make ends meet,” said Searcy. “My family lost our home when I was in 7th Grade, and I began working to help support my family when I was fourteen. Too many families in North Carolina are facing the same challenges we did."

"Sam Searcy grew up in the small town of Hendersonville, NC. His mother was a teacher’s assistant in public schools and his dad worked in the factories. Sam became the first person in his family to graduate from a four-year college. With the help of student loans and on-campus jobs, he put himself through Appalachian State University. Sam worked a few different jobs until the Great Recession hit. He, like many North Carolinians, found himself laid off. He took a job at Lowe's garden center to support his family. Eventually, he helped start two local companies which continue to employ people right here in North Carolina."

One of his campaign issues that should resonate with struggling North Carolinians: "Having worked in the healthcare industry and helped build a successful medical services company, I believe we can and should do more to lower costs. But, Republicans in Raleigh have put the health of thousands of North Carolinians at risk by refusing to expand access to Medicaid. I will work to ensure that every person in North Carolina has access to quality, affordable healthcare."

District 17 is in southwest Wake County.