Campaign finance reports filed with the State Board of Elections show state Supreme Court Justice Phil Berger Jr.’s political committe may have improperly contributed to a group seeking to oust the chief judge of the Court of Appeals, Donna Stroud.
Campaign finance records show Berger’s campaign committee gave $4,000 to NC for Justice, a new political action committee (PAC) that has distributed fliers attacking Stroud – a well-regarded conservative judge – as “the liberal choice for Court of Appeals.” Berger is backing Stroud’s opponent – District Judge Beth Freshwater Smith – in Tuesday’s primary.
Two experts in campaign finance law say Berger’s contribution from his committee to a PAC is not allowed.
Bob Hall, the retired former head of Democracy NC who has brought numerous successful complaints about campaign finance violations, said he will file a complaint against Berger with the State Board of Elections. on Monday.
“It appears to be very clearly a violation, so I will put it before the regulators,” Hall said Friday.
Campaign committees are allowed to contribute to other candidates and to PACs affiliated with a political party, but the NC for Justice PAC doesn’t fit in those permitted categories. Several other Republican campaign committees have also contributed to the PAC.
John Wallace, a counsel to the state Democratic Party who specializes in campaign finance law, said the contributions appear to have been made in error. He said candidates may have thought they were free to support the PAC, but the law does not include independent PACs on the list of allowable recipients.
“It’s an easy assumption to make, but it’s a mistake,” Wallace said. “I think this is very sloppy.”
Berger could not be reached for comment Friday afternoon.
Wallace said the PAC will likely be ordered to refund the contributions, or the money may be placed in a state penalty fund.
State Board of Elections spokesman Pat Gannon said state law specifies that a candidate may contribute to a PAC if it is an “expenditure resulting from the campaign” or an “expenditure resulting from holding office.” The PAC contribution from Berger, who will not be up for reelection until 2028, does not appear to meet either standard.
Apart from the legal issues, it’s also a problem that a state Supreme Court justice would contribute to a PAC that is pushing negative and misleading ads about the leader of a lower court, particularly when the target is a fellow Republican.
Stroud served amicably with Berger when he was on the 15-member Court of Appeals from 2017 to 2021. She is bewildered that he has contributed to a PAC that aims to defeat her.
“I think it’s crazy. It’s unprecedented,” she said Friday. “I don’t understand it.”
In response to an individual’s question on Facebook, Berger said one reason he is opposed to Stroud is that the Court of Appeals hired the “dems candidate” for clerk of the court last summer over Republican candidates, including his former law clerk. Berger blamed Stroud for getting some Republican judges to join five Democrats in the 8-7 vote to hire the clerk.
Berger, the son of state Senate leader Phil Berger Sr., has not tempered his political activity since winning an eight-year Supreme Court term in 2020. The state code of judicial conduct limits politicking by judges and justices to when they are active candidates. Some have avoided that constraint by declaring themselves candidates for reelection shortly after they are sworn in.
Court observers say Berger’s opposition to Stroud is not personal. They say he would like to extend his influence over the appellate courts by promoting judges loyal to him, and Stroud, who has her own political base and is respected by Republicans and Democrats alike, is an obstacle.
Berger’s extraordinary effort to unseat the chief judge of the Court of Appeals could have consequences beyond breaking campaign finance laws and straining judicial conduct standards. Should Stroud survive the primary and win reelection, there will be a question of what will happen if opinions she authors are appealed to the state’s highest court. They may not get a fair hearing from at least one justice.
Associate opinion editor Ned Barnett can be reached at 919-829-4512, or nbarnett@ newsobserver.com
This story was originally published May 14, 2022 4:30 AM.