Judges and justices of North Carolina’s courts are sworn to be independent of partisan politics and to conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Some are saying state Supreme Court Justice Phil Berger Jr. is doing neither.
In recent social media messages—apparent private Facebook messages to a Caldwell County resident that have been publicly circulated—Berger offered a “cliffs notes” version of why he supported longtime prosecutor and District Court Judge Beth Freshwater Smith over incumbent Chief Judge Donna Stroud for a seat on the state’s Court of Appeals: Freshwater Smith was endorsed by law enforcement, Grass Roots North Carolina, and Republican appeals court judges Jefferson Griffin, Jeffery Carpenter, and Richard Dietz.
But what Berger called a lack of leadership from Stroud apparently stems, in part, from her unwillingness to help usher in one of his former law clerks as clerk for the Court of Appeals when the position opened last year.
Berger noted in the messages that despite the GOP’s 10-5 Court of Appeals majority, a former Democrat (now unaffiliated) won the job by an 8-7 vote after Stroud and two other Republican judges voted for him.
Stroud “shut out qualified republicans, including one of my former clerks, who also worked with 2 other GOP judges,” Berger wrote to the other individual, who had asked why Berger was endorsing Freshwater Smith.
“The dems got their clerk of court,” when Stroud “whipped the votes,” Berger wrote, adding that other candidates had “worked for years in GOP politics.”
Years of service with a specific political party is not requisite for serving as the appeals court clerk, but having at least 10 years of experience as a lawyer is, according to the job posting. Based on Berger’s time on the bench, it is unlikely that his former clerk met this minimum qualification.
Berger went on to say that Stroud “had an opportunity to correct what she had done” after several Republican judges questioned her vote tally.
“The process was repeated,” Berger wrote. “10-5 court votes 8-7 so the dems got their clerk of court.”
Justices and judges are publicly elected in North Carolina, so the freedom to campaign and endorse candidates is theirs. Canon 7 of the state’s Code of Judicial Conduct aims to “strike a balance between … the need for an impartial and independent judiciary and … the right of judicial candidates to engage in constitutionally protected political activity.” It holds that a judge or justice cannot endorse a candidate unless that judge or justice is also a candidate, someone “actively and publicly seeking election to judicial office.” Berger meets this requirement, having already formally declared himself a candidate for re-election in 2028.
But those who declare themselves “perpetual candidates” are side-stepping the state’s ethics code, said Duke University law professor and former advisory member to the North Carolina State Bar Ethics Committee Thomas Metzloff, who told the News & Observer in Raleigh that being a political actor should be limited to “periods of their active candidacy.”
Berger did not respond to multiple requests for comment.
All is not fair
Some argue that Berger’s actions go beyond the appropriate endorsement of one candidate and into inappropriate methods of attacking another.
When the previous Court of Appeals clerk, Dan Horne, announced his plans to retire, the court began its search for his replacement. Typical for state jobs, the position was publicly posted through the Administrative Office of the Courts. Each Court of Appeals judge had access to the applications, participated in the interview process, and voted on whom to hire.
But while all 15 appeals court judges are privy to applicant’s information, neither Supreme Court justices nor the public should have been.
“The hiring process is a personnel matter and details of the identities and qualifications of the applicants who applied, information regarding the interviews, and internal discussions of the judges on the Court regarding the applicants are therefore confidential,” Stroud said. “Neither I nor any other judge should disclose details of this confidential process outside the Court of Appeals.”
Records also show that Berger’s campaign contributed $4,000 to a political action committee (PAC) that recently referred to Stroud in Facebook ads as a RINO (Republican in name only) and “The Liberal Choice for the Court of Appeals!”
“In 2020 while grassroots conservatives were working hard to elect constitutional conservatives to the Court of Appeals, RINO Donna Stroud was working to help liberal progressives control the NC Court of Appeals! But we got the last laugh!” one of the ads states.
On May 16, campaign watchdog Bob Hall of Durham filed a complaint with the North Carolina State Board of Elections, alleging that the contribution to the PAC was illegal.
“NCGS 163-278-16.B clearly prohibits Berger for Justice and other candidate campaign committees from making contributions to PACS,” the complaint reads. “The law specifies that candidate committees may only contribute to another candidate committee or to a political party committee or its affiliate or caucus. If the General Assembly intended to allow contributions to PACs, the law (which was updated as recently as 2018) would have included ‘political committees’ among the permitted recipients of contributions.”
Hall wrote that he understands that it may be difficult for the Board to rule against Berger, “the son of state Senate boss Phil Berger Sr., who could retaliate by undercutting the Board’s budget.” Hall also noted a $5,600 contribution by the Committee to Elect Jeff Carpenter and accused the PAC of “systematically and repeatedly violating campaign finance laws designed for the public’s benefit and fair elections.”
Stroud said that there is a duty to protect and defend the judiciary from “inappropriate political interference.”
“My primary election this year has presented unprecedented issues testing the limits of the Code of Judicial Conduct and challenging the independence and integrity of the court,” Stroud said.
Despite those issues, Stroud survived Freshwater Smith’s challenge, winning the primary election on May 17
Follow Heath Hamacher on Twitter @NCLWHamacher