Berger amotion appeal heard in Greensboro

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Submitted: Tue, 07/16/2013 - 8:58pm
Updated: Wed, 07/17/2013 - 12:46pm

GREENSBORO, NC (WWAY) — It’s been nearly two months since New Hanover County Commissioners voted to kick Brian Berger out of office. Today Berger’s fight to keep his seat moved to a Greensboro courtroom.

While attorneys from both sides argued their case, Berger stayed home and watched the proceedings on at the advice of his lawyer.

Inside of the Elon School of Law, Special Superior Court Judge James Gale gave both sides an hour to argue their case and answer three legal questions he posed at the start of the proceedings: What was the jurisdiction? Did the county have the authority of amotion? And if so did it follow due process?

“Some of our due process concerns are the ones that I mentioned at the hearing are any bias of the New Hanover Co. Commissioners or their improper use of personal knowledge,” Berger’s attorney Chris Anglin.

John Martin, the Greenville attorney the county hired to represent it, argued the county did have the law on its side when it used amotion against Berger.

“The county commissioners were faced with a situation that was a last resort,” Martin said, “so we’re very comfortable that we’ve made the best of a very unfortunate situation.”

Gale listened as both attorneys made their cases, but he made one thing clear about amotion.

“If someone is going to invalidate the amotion process itself, it’s going to be the North Carolina Court of Appeals or the North Carolina Supreme Court,” Anglin said.

Both sides agreed to a 30-day deadline to submit their final briefs to the judge.

Judge Gale, however, indicated he felt the only power he may have is to send it back to the County Commission for a retrial.


  • Vog46 says:

    You won’t have that satisfaction. Lets look at one thing Gale said:
    “”If someone is going to invalidate the amotion process itself, it’s going to be the North Carolina Court of Appeals or the North Carolina Supreme Court,”

    Then he went on further to clarify his authority:
    “Judge Gale, however, indicated he felt the only power he may have is to send it back to the County Commission for a retrial.”

    When I take all of this into consideration the 30 day brief file is just to get arguments in writing when in fact the only thing Gale feels comfortable doing is sending it back to the county commission, which has no power to remove Berger.
    They “re-try” Brian and do what then? Seems like it would then get appealed at that point to the Court of Appeals – probably scheduled after Jan of 2014.

    This whole case boils down to the amotion process and that is a constitutional argument IMHO which is why Gale punted. He knows his court cannot rule on constitutional issues.
    I think this thing goes into slumber mode for awhile. Gale gets written briefs by August 16 – then reviews them? give Gale 90 days to render his decision to Nov 16 where he kicks it back to county commission. They would have to schedule another “trial” give THAT 30 days so we’re at Dec 16 or so.
    Then Brian files an appeal to THAT trial…….

    I turned off the popcorn machine for now. We probably won’t be needing some for quite some time as Brian collects is monthly paycheck and uses his BCBS card……….
    But he won’t get his seat, or voting rights on that commission, back.
    He is after all still censured.


  • Vog46 says:

    He can be censured for sure. Whether that involves removal from the website? I don’t know. Yes he should get his seat back but as a censured commissioner is it worth it to him? Who knows what Brian Berger thinks…….


  • SurfCityTom says:

    I’d like the next round to be an order to the Commission requiring them to reinstate Berger on the website and allow him to resume his seat on the commission pending the outcome of this travesty.

  • guesty says:

    I wonder how late big bri will be to this meeting or if he will make sure to set an extra alarm….

  • SurfCityTom says:

    expect the unexpected.

    Could a postponement be on the horizen to allow the County’s well paid law firm sufficient time to prepare?

    Nothing says Woody will even be present. Once they appear in court, it may just be the lawyers for the Commission.

    Remember, this is going where no legal entity has gone before.

    And as someone once said, it’s not over until the fat lady sings — or in this case, until the Superior Court rules; and that may be far down the road.

  • Vog46 says:

    We can see it live?
    Oh goody

    Now about the time lapse moderation of the blog and the no moderation on the weekends………


  • Vog46 says:

    In Cumberland County they are using amotion to remove a sitting commissioner as well. I wouldn’t be surprised to see this lead to more and more amotion hearings with the Legislature saying at some point we need to have recall elections.
    This will turn into a donnybrook if it continues…..with more and more boards attempting it.


  • Guestwit says:

    This is a potential travesty! Woody White HAS lied and his tactics have been in the opinion of many very questionable. No matter what the outcome today , we will be asking federal authorites to investigate possible corruption here and the disgusting, unlawful tactics employed by White. The sleaze who attacked Bozeman,and feared Berger exposing him for the phony he is -HE will not get a pass on this shameful conduct.

  • Guest 10101 says:

    So …. who’s “we”?

    I seem to recall you saying this before. All talk and no action.

  • Vog46 says:

    Agree whole heartedly with you.
    I don’t see a complex business law case Judge over turning an election result. I think he kicks this upstairs. Or, he rules amotion is not the right procedure.
    And if it goes before the Supremes it will be 2015 before it’s heard.
    In which case the voters win, and so does Brian. He keeps his pay and benny’s and we get to vote him out if he’s stupid enough to run again. Woody looks like the jerk and wasteful spender……..


  • Guest20812 says:

    Don’t get me wrong, I believe Woody White has and will continue to have egg on his face for this absurdity. But by removing Berger, he has decreased the people’s representation on the county board of commissioners by 1. It is ridiculous to believe that the county will halt all business and wait for this to be resolved. So all county decisions will be made by 4 commissioners instead of 5. Considering that one of these commissioners was appointed only by Dawson and White, there are only 3 county commissioners elected by the people of this county making decisions for this county. Barfield is the odd-man-out. His vote is effectively invalidated if he goes against the “Gang of 3″. Coincidence that TITAN has been added to the county agenda in August? I think not. Set your watches for the sale of our county created hospital system to be revisited soon.

  • Rick Wilson says:

    All of Woody White’s scheming will be for nothing if Beth Dawson does not turn out to be one of his puppets. This Commission could wind up being deadlocked 2 to 2 on a lot of issues. If the court case extends past the next election, then Woody White has accomplished nothing. He will not be able to hand pick another Commissioner. One of the charges against Berger was his attendance record, and White has quite possibly assured Berger will get paid for the rest of his term without ever attending another meeting. With the hiring of outside council by the county, do not be surprised if the bill to the tax payers exceeds $100,000.00. White has received his Doctorate Degree in wasting tax payer funds and questionable ethics in record time. The Mayor might even become jealous of this spending spree before this is over…………..I wonder if Titan believes their “contributions” were a wise business investment? Thankfully the SUP (Special Use Permit) is still in place, and this company that claims it can meet the standards and will follow all the rules is now lobbying to be allowed to emit more pollution. This is before they even get the OK to build the plant. This is just a sample of what is to come if they are allowed to build this plant. Foreign Corporations getting mixed up in local politics………..the mess just keeps getting bigger, more expensive, and the smell is getting worse by the second. Thank-you Woody White, in a very short period of time you have managed to make local politics even sleazier………..and that required hard work to accomplish. Too bad you did not apply this energy to issues that would help the citizens of NH County. I now understand how/why an incumbent State Senator was so easily defeated……..the voters got that one correct.

  • Guest 4253 says:

    C’mon admit it, the “yawn’ is just an act. The real deal is you were just too dumb to understand what was going on.

  • SurfCityTom says:

    did anyone get to see it? More importantly, was the hearing held or did the attorneys ask for a continuance?

  • Vog46 says:

    I saw parts of it (The audio was terrible).
    Gales ruling that he probably would not have the authority to rule on it devastates the commissions case. Berger’s attorney’s opening paragraph said “Your decision COULD affect elections state wide.”
    Judge Gale knows this and sees the issue – it is LESS a business case and MORE an election case.
    Yes they held the hearing – Berger stayed home on his attorneys advice.

    Gale threw the door open to challenges all over the place. This will go as far as Berger wants it to. I can hear the billable hours going up for the county as we speak.
    The argument that the county did all they could sounded like they were clearly frustrated – indicating to me at least that they were trying ANYTHING to get rid of Berger – which plays to Brian’s argument that it was predetermined.
    I’d give round one to Berger but this is gonna go a long way….


  • SurfCityTom says:

    they have 30 days to file briefs.

    Then the Judge will take his time and review the briefs before rendering a decision.

    And possible his decision will be to return the case to the County Commission.

    The wheels of justuce turn slowly.

  • Barry Batchelor says:

    That is Berger and his Mother. He keeps throwing that threat up but has anything ever, ever come of his words or actions? With the questions this judge is asking and some reading between the lines, I would it say this part of the process is about 50/50. That ain’t good for Berger.

    This off of a limited observation that I offer this opinion.

  • Vog46 says:

    Something that SCT said:

    “Remember, this is going where no legal entity has gone before.

    And as someone once said, it’s not over until the fat lady sings — or in this case, until the Superior Court rules; and that may be far down the road.”

    After yesterdays “hearing” I spoke with a lawyer friend who is intrigued enough by this case that he’s following it online, and SCT’s comment about going where no legal entity has gone before was “spot on”.
    First, think of how a corporate board member is elected and by whom. Its done by shareholders at shareholders meetings and they have paid for the privilege to to so by buying shares. It is in fact a closed society.
    the court case the county is basing their argument on for using amotion is from 1908 where they used the “common law” to remove an elected official. This case has very little relevance to today’s case involving Berger as both corporate law has changed, common law has changed and election law has changed.
    He thought Gale made the right call saying he had no authority because this case involves the intertwining of different facets of law – but he was surprised that he may send it back to the Commission because they have no statutory authority to remove Berger on their own. THAT law, he said would have to be written into the States constitution and he highly doubted that this would ever happen.
    Unless one side or the other gives up, this will drag on. it will be one for the textbooks if the courts ever get a chance to decide the case.
    But at some point the cost of this case will become oppressive…..and since there’s no law currently on the books to allow for removal ANY cost is oppressive as far as I’m concerned. Censure him, put him “in the corner”, “timeout”, “in solitary” or what have you – and move on until the next election.
    Don’t worry – Brian WILL NOT return….


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