Dismissal of lawsuit against Team Berger by judge tied to Berger + Moore appealed. (Uncle Phil is NOT pleased.)

Don’t pop those champagne corks over in the corner office juuquuuuust yet.

The Rockingham County candidate who filed suit against a whole host of key players in Phil Berger’s political organizations appealing the suit’s dismissal by a judge who appears to be waaaaaaaaay too close to Phil Berger, former speaker Tim Moore, and some of the defendants themselves:

[…] In the interest of transparency, Judge Hicks disclosed to all parties on the record that he had hired The Differentiators in connection with his judicial campaign in 2022. Although Judge Hicks did not consider his association with The Differentiators approximately 3 years earlier to be a conflict (and none of the parties had sought his recusal), Judge Hicks recused himself from hearing Defendants’ Motions to Dismiss to avoid any potential appearance of impropriety or partiality and notified counsel for the partiesthat Defendants’ Motions to Dismiss would be heard by The Honorable Hoyt G. Tessener (“Judge Tessener”) in Courtroom 10B at 10:30 a.m. the same day.

11. When the hearing began, Judge Tessener informed the parties that he had not read any documents in the court file. During the approximately 3-hour hearing, Judge Tessener did not disclose any personal, professional, or political relationship with any of the individuals referenced in the Complaint. Judge Tessener took the matter under advisement and stated that he would read all of the documents submitted by the parties and render his decision by Monday, April 28, 2025.

12. On the evening of April 23, 2025, a third party who was not present for the hearing contacted Plaintiff’s counsel and said that Judge Tessener should not preside over the case because the judge had a conflict due to his association with former Speaker of the North Carolina House of Representatives Tim Moore (“Mr. Moore”) and President Pro Tempore of the North Carolina Senate Phil Berger, Sr. (“Senator Berger”). Mr. Moore and Senator Berger are both heavily involved with Defendant GOPAC, and Senator Berger is the father of Defendant Berger.

Upon information and belief, Mr. Moore was a member of the Legislative Leaders Advisory Board of Defendant GOPAC from 2015 through 2023 and was one of only five Congressional candidates endorsed by Defendant GOPAC in the 2024 election. Upon information and belief, Senator Berger is currently a member of the Legislative Leaders Advisory Board of Defendant GOPAC and has been since at least 2020.

13. Before the hearing in this matter on April 23, 2025, Plaintiff’s counsel knew very little about Judge Tessener (essentially only that he had been a plaintiff’s personal injury attorney before he became a judge and that he had attended law school at Campbell University). Plaintiff had never heard of Judge Tessener and did not know anything about him. Plaintiff and Plaintiff’s counsel reasonably believed that, since Judge Hicks had recused himself for a relatively attenuated connection to non-parties identified in the Complaint and reassigned the matter to Judge Tessener, Judge Tessener’s connection (if any) to the individuals involved in the case (whether parties or non-parties) would be even more distant. In the exercise of due diligence after being informed that Judge Tessener may have a conflict due to his association with Mr. Moore and Senator Berger, Plaintiff’s counsel searched publicly available information and discovered the following:

Judge Tessener was appointed to his position as a Special Superior Court Judge by Mr. Moore in Section 2.15(c) of Senate Bill 761 (Session Law 2023-148), attached hereto as EXHIBIT A and incorporated by reference herein, on October 25, 2023.

Judge Tessener’s position is one of 10 Special Superior Court Judgeships newly created by the 2023 Appropriations Act and filled by legislative appointment. Mr. Moore and Senator Berger both signed Senate Bill 761 to appoint Judge Tessener.

Judge Tessener was appointed to an initial 2-year term on the Governor’s Crime Commission by Mr. Moore on July 16, 2019 in Section 2.24 of Senate Bill 686 (Session Law 2019-122), attached hereto as EXHIBIT B and incorporated by reference herein, and a second 2-year term on March 31, 2021 in Section 1.4 of House Bill 356 (Session Law 2021-6), attached hereto as EXHIBIT C and incorporated by reference herein.

Judge Tessener made substantial financial contributions to the campaign committees of Mr. Moore and Senator Berger. Since 2015, Judge Tessener has contributed a total of $22,900.00 to Mr. Moore’s campaign committees and $1,000.00 to Senator Berger’s North Carolina Senate campaign committee.

A spreadsheet showing data from the North Carolina Board of Elections regarding Judge Tessener’s contributions to Mr. Moore’s and Senator Berger’s North Carolina General Assembly campaigns is attached hereto as EXHIBIT D and incorporated by reference herein. An excerpt from the Federal Elections Commission report filed by Mr. Moore’s campaign committee showing a $6,600.00 contribution by Judge Tessener to Mr. Moore’s 2024 Congressional campaign on November 8, 2023—approximately two weeks after Judge Tessener was appointed to his current position—is attached hereto as EXHIBIT E and incorporated by reference herein.

Although Mr. Moore is no longer on the Legislative Leaders Advisory Board1 of Defendant GOPAC, he remains actively involved with this organization. Defendant GOPAC, through GOPAC Election Fund, contributed

$5,000.00 directly to Mr. Moore’s 2024 Congressional campaign and spent at least $164,850.00 in independent expenditures supporting Mr. Moore’s campaign. Mr. Moore was running for Congress at the time the Complaint in this action was filed, and he was elected to Congress in November 2024.

Excerpts from FEC reports showing GOPAC’s contribution to Mr. Moore’s campaign and independent expenditures to support Mr. Moore’s candidacy are attached hereto as EXHIBIT F and incorporated by reference herein.

ii. In an interview with The Carolina Journal in late 2023, David Avella, the Chairman of Defendant GOPAC stated, “We have invested well over $175,000 in advertisements to date and will continue to work to make sure [Mr. Moore] maintains his lead in this primary.” The article containing this quote is attached hereto as EXHIBIT G and incorporated by reference herein.

iii. As of the date of this motion, Mr. Moore remains featured on Defendant GOPAC’s website as one of its Congressional candidates. Mr. Moore’s biography from Defendant GOPAC’s website is attached hereto as EXHIBIT H and incorporated by reference herein.

14. Plaintiff’s counsel reasonably believed that, since Judge Tessener had not read any documents in the court file before hearing the arguments of counsel, he likely did not know enough about the facts of the case to realize that he should not render a decision on the dispositive motions in this case.

Plaintiff’s counsel also reasonably believed that, after Judge Tessener read the Complaint and other filings, he would disclose his relationship with the individuals involved in the case—as Judge Hicks had done—and recuse himself because the circumstances are such that his objectivity could be called into question.

However, on the afternoon of April 30, 2025, without informing the parties of his connections to Mr. Moore and Senator Berger, Judge Tessener rendered his decision by email to counsel, through the TCC, granting all relief requested by Defendant GOPAC and the North Carolina Defendants.

16. Despite Judge Tessener’s far more significant and recent connections to individuals involved in this matter, unlike Judge Hicks, Judge Tessener did not disclose any of the above information to the parties before rendering his decision. If Plaintiff or Plaintiff’s counsel had known (or had any reason to know) of Judge Tessener’s close political and financial connections to Defendant GOPAC’s Legislative Advisory Board members—Mr. Moore and Senator Berger—before or during the hearing on Defendants’ Motions to Dismiss, Plaintiff would have sought Judge Tessener’s recusal and requested that another judge be assigned to hear the dispositive motions.

17. After Judge Tessener rendered his decision granting all relief requested by Defendant GOPAC and the North Carolina Defendants but before the order on his decision was entered, Plaintiff’s counsel informed the Court, by email to the TCC, that Plaintiff had discovered grounds that could warrant Judge Tessener’s disqualification and requested that Judge Tessener’s decision be held in abeyance for 30 days so Plaintiff could seek an expert opinion on the matter and determine whether to file a written motion to disqualify. Plaintiff further informed the Court that, if Judge Tessener would not agree to stay entry of the order based on his orally rendered decision, Plaintiff would proceed with filing the motion to disqualify that had been drafted in its then-current form so that the issue could be addressed before an order was entered. […]