Thursday, December 2, 2021

Names of Appeals Judges Who Issued Order in Elections Board Case a Secret

Rockingham County District Attorney Phil Berger Jr.

— The North Carolina Court of Appeals will not disclose the names of the three judges who issued an order in an ongoing dispute between Democratic Gov. Roy Cooper and Republican lawmakers.

That’s despite that fact that Phil Berger Jr., who was elected to the court in November, is the son of Sen. Phil Berger, R-Rockingham, one of the named defendants in the case. It’s unclear whether the younger Berger participated in the decision.

“Pursuant to policies and procedures established by the North Carolina Court of Appeals, the names of the judges who rule upon motions and petitions prior to the case being calendared for argument are not disclosed,” Dan Horne, clerk for the Court of Appeals, wrote in an email to WRAL News.

Pressed to make an exception to court policy in this case, Horne said, “The three judges who ruled upon this motion are deemed to have ruled on behalf of the entire court. For that reason, such orders are orders of the entire court and are issued under the Clerk of Court’s signature.”

The dispute in question stems from laws the Republican-controlled General Assembly passed in December shortly after Cooper ousted Republican Gov. Pat McCrory in a close and contentious election. One of those measures merged the state Ethics Commission and the State Board of Elections and allows lawmakers to appoint half the members of the new panel. Previously, governors appointed all five members of the elections board.

A Superior Court panel blocked implementation of that law, but the Court of Appeals panel lifted that block late Thursday.

The court order was signed by Horne without the names of the judges attached.

The elder Berger is the powerful president pro tem of the Senate, a position that gives him a great deal of say over what bills do and do not become law and a great deal of influence over the state budget. His son won election in November to the 15-member Court of Appeals, which hears cases and makes decisions in three-judge panels.

The younger Berger did not immediately respond to a call to his chambers or mobile phone asking if he was part of the panel. WRAL News had submitted a public records request to the court asking for records that would show those names.

“If they have a record that is applicable, they should turn it over,” said Jonathan Jones, director of the North Carolina Open Government Coalition.

Late Friday, the Horne replied, “We do not have a record that is responsive to your request.”

Jones said that there is no explicit exceptions in the state’s public records law that would exempt the court’s records from public view. But, he cautioned, “There is a belief that there may be some sort of judicial privilege that exempts them from the law, but that is largely theoretical and has never been tested in any of our courts.”

Jones said there might be material is exempt from public view because it could prejudice a case one way or the other, but “simply giving the names of who participated in dissolving a stay would not qualify as one of those things.”

A spokeswoman for the elder Berger said he doesn’t know which judges ruled on the case.

“This type of appellate court panel is anonymous, and we have no idea who serves on any of them. Regardless, Sen. Berger does not discuss cases he’s a party in before the courts with the judges hearing the cases,” Berger spokeswoman Shelly Carver said.

This isn’t the first time a state appellate court has been unwilling to explain how it arrived at a decision. Last year, the state Supreme Court refused to disclose how it developed a rule for fill-in justices or how a tied court voted in a case involving retention elections.

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