New Hanover commission uses antique legal maneuver in effort to oust member

The saga of embattled New Hanover County Commissioner Brian Berger has taken yet another turn, one that has the potential to make legal history.

Later this month, the commission will hold a quasi-judicial hearing that could end with Berger’s ouster. It’s a last-ditch effort by commissioners who failed to persuade Berger to resign, then saw legislation that would have paved the way for his removal get stalled in the General Assembly.

The commission now has turned to a little-known and seldom-used process known as amotion, which corporations invoke to remove officers. The N.C. Supreme Court has considered and upheld the amotion doctrine in just two cases, first in 1883 and then again in 1908.

In the earlier ruling, Ellison v. Alderman of Raleigh, the court held that a municipal corporation had the power to remove one of its elected members for just cause. That holding was affirmed, but not cited, in the second decision, State ex rel. Burke v. Jennings, in which the court concluded that commissioners could force out a town’s elected treasurer.

Both decisions have gone unchallenged, but that could soon change if Berger fights the amotion and sues over whether the commission has the authority to boot him from office. While Berger did not respond to interview requests, he has released a written statement in which he contests the commission’s decision to censure him ahead of its 3-2 vote in favor of going forward with the amotion hearing on May 20.

“I think the core legal question here is whether the board has the authority to remove him and, if they do, what specific set of actions or omissions would justify removal?” said Frayda Bluestein, a professor of public law at UNC School of Government in Chapel Hill. “This is not something that has typically been used in North Carolina.”

Considering that more than a century has passed since the state’s high court last considered the amotion doctrine, it’s anyone’s guess as to whether the current justices would reverse or affirm the existing case law.

“We assume it’s still valid,” said New Hanover County Commission chairman Woody White, a criminal defense lawyer at White & Hearne in Wilmington. “We could be wrong, but that’s our view at this point.”

In its amotion petition, the commission describes itself as a corporate entity under state law that has the “inherent power of amotion (just as any corporate body) to remove any town official for just cause.”

Then it lays out a laundry list of examples of Berger’s bizarre behavior and run-ins with the law, from his arrests for drunken driving and assault to his repeated tardiness at meetings, rambling speeches and conspiracy theories.

Berger’s antics and his disturbing statement that “it’s only a matter of time before someone gets seriously wounded or murdered,” recently prompted the commission to bolster security at its meetings with metal detectors and mandatory bag searches.

Because the case law is so sparse and amotion actions are so uncommon, no specific procedural rules exist for holding a hearing, though there is “an outline of a sense that there should be due process,” Bluestein said.

When White drafted rules for Berger’s hearing, he gave Berger the right to an attorney, to hear the case against him and to offer a rebuttal. Both sides can call on witnesses and all statements will be made under oath. Essentially, the hearing will unfold like a mini-trial, the outcome of which is not preordained, White said.

“We don’t want to remove an elected official, but it’s absolutely necessary in this instance unless he reforms his behavior,” he said. “If he demonstrates that he can get help and be a functional member of the board, we may not remove him.”

Follow Phillip Bantz on Twitter @NCLWBantz