Courts & the Law

As senators subpoena Cooper cabinet pick, experts weigh legal options, potential outcomes

Larry Hall, a former legislator and Gov. Roy Cooper’s choice to head the Department of Military and Veterans Affairs, has been subpoenaed by a Senate committee but he may not be legally obligated to appear.

The Marine Corps veteran has become somewhat of a pawn in the political spectacle that is the power struggle between Democratic Gov. Roy Cooper and the Republican-led General Assembly.

In the latest showdown, a Senate committee voted Thursday along party lines to subpoena Hall after he chose not to attend three scheduled confirmation hearings.

Hall has not publicly commented about why he has not attended the hearings, but Cooper’s attorneys believe the law prohibits the Senate from holding advice and consent proceedings without the governor initiating the process.

A three-judge panel recently denied Cooper a preliminary injunction to stop the hearings but made a finding in their six-page order that “The Advice and Consent Amendment require the Governor to begin the process by first notifying the Senate of the nominee, and the Senate cannot begin the advice and consent process until the Governor submits a nominee.”

Larry Hall

Larry Hall

Cooper has not yet formally submitted his nominees and has said that he will not do so until after the March 7 trial in which that same three-judge panel will determine the constitutionality of the confirmation process.

He has until May 15 to submit the names to the Senate, according to the law and the panel’s findings. The law also makes clear that Cooper’s appointees can serve in an interim capacity until he submits their names.

The Senate has interpreted the court’s order in a different way. Its leaders say because it is a denial of Cooper’s request for a preliminary injunction, they can continue with the hearings. They’ve also said that the courts do not have the authority to stop the Senate from conducting its business.

Hall could not be reached for comment and Cooper’s press office did not respond to questions about how he plans to respond to the subpoena.

“One way or another, it’s the courts that will make the final decision,” said Michael Crowell, a Chapel Hill attorney and former professor at the UNC School of Government.

Legal options

Crowell said Hall has three options to respond to the subpoena. The first is for Cooper’s attorneys to take the initiative to quash the subpoena by going back to court. Read more

NC Budget and Tax Center

CBPP Reports: North Carolina and 49 Other States Would Be Harmed Under Current Proposals to Restructure Medicaid

Today, the Center on Budget & Policy Priorities (CBPP) released two reports on the impacts of Congressional Republicans’ recent plans to cap and cut Medicaid and end the expansion of that program to provide health care coverage for those who would otherwise not have it.

The conclusions of both reports indicate that restructuring Medicaid under block-grant or per-capita proposals would lead to damaging effects on states and affect the ability of Americans to access health care.  These findings are of great concern to North Carolina. As proposals to cap and cut Medicaid are considered, it is important to note that 1.9 million North Carolinians were covered by Medicaid in 2016. And the federal government provides $66 for every $100 spent on Medicaid services in the state.

Under a per capita cap or a block grant, the federal government’s contribution to Medicaid would be decoupled from the actual cost of providing health care. Instead, federal support would be capped, and limited either to a set amount per beneficiary (under a per capita cap) or to a fixed amount per state (under a block grant).

Key points from CBPP’s reports include:

  • “House Republican proposals would effectively end the Medicaid expansion now in effect in 31 states and Washington, D.C. by phasing out all of the enhanced federal funding that states now receive for covering the expansion population. This would force expansion states to find at least $32 billion more in state funds in 2019 alone (assuming the reduction took effect in that year) to continue covering this group.  Few, if any, states could absorb such new costs.”
  • “Even comparatively small percentage cuts in federal funding would create large budget shortfalls for states, as federal Medicaid funding constitutes about 15 percent of state budgets, on average.”
  • Proposals would also eliminate Medicaid’s crucial ability to automatically respond to increases in need. For example, proposals would make it difficult to address key health care challenges related to the opioid epidemic and the aging baby-boom generation.
News, Trump Administration

This Week’s Top Five on NC Policy Watch

1. Republicans target non-surgical abortions in latest move to restrict reproductive rights

North Carolina Republican legislators appear to have found a new way to interfere with women’s reproductive rights – this time potentially eliminating the option of a non-invasive abortion for women during the first trimester of pregnancy.

House Bill 62 would require doctors to tell women seeking a non-invasive medical abortion that they could reverse the process halfway through – advice that is medically unproven.

The bill is even more restrictive than legislation in other states by requiring medical proof of fetal death before a woman can continue the second step of a non-surgical abortion. [Read more…]

2. Bills seek to end permits for concealed handguns

Two new North Carolina House bills aim to do away with permits for carrying concealed handguns and eliminate the state’s ability to regulate concealed weapons.

The moves, which have failed to get traction in previous sessions, have been denounced as dangerous by leaders in law enforcement and gun control advocates. But groups and lawmakers supporting the bill say it’s the next step in North Carolina’s recent history of gun deregulation.

Under House Bill 69 – the “Constitutional Carry Act” – any U.S. citizen 18 years or older would be able to carry a concealed handgun, unless otherwise disallowed by state or federal law. [Read more…]

3. Unofficial DPI spokesman raises questions of accountability, transparency

When Jonathan Felts speaks for North Carolina’s superintendent of public instruction, he insists it’s a labor of love.

Felts, a former George W. Bush White House staffer, professional GOP consultant and senior advisor to former Gov. Pat McCrory, says he’s taking no pay for his work in the office of new Superintendent Mark Johnson.

That includes providing updates and statements to the press on behalf of Johnson’s state office and offering scheduling details for the superintendent as he embarks on a statewide listening tour. Felts emphasizes his official title is transition chairman for Johnson, nearly two months into the new superintendent’s tenure in Raleigh.

“I’m just a parent of a young child who’s been blessed with a lot of unique opportunities,” says Felts.[Read more…]

4. The Atlantic Coast Pipeline will forever change forests, wetlands and rivers in North Carolina

It’s nearly spring and the Neuse River Waterdogs are on the prowl, searching for mates. About 6 to 9 inches long, slimy and the color of mud, the salamanders are homely, yet lovable. They have dark spots, like a Dalmatian, and their neck sports two frilly gills the shade of magenta, which, when waterdogs want attention, rise like an Elizabethan collar.

In all of the world, Neuse River Waterdogs are found only in North Carolina, in the bio-diverse Neuse and Tar-Pamlico river basins, where they spend their life under water. Sensitive to pollution and habitat disruption from development, they have been listed as a species of concern since 1990. Because of that designation, they can’t be captured or killed without a special permit from the NC Wildlife Resources Commission.

But almost certainly some Neuse River Waterdogs would be caught or die as a consequence of the Atlantic Coast Pipeline. [Read more…]

5. About that economic “mess” Trump claims to have inherited
The data show that the President’s alternative facts about the economy are flat wrong

One month into the presidency of Donald Trump, it’s already common, even global, knowledge that the American commander-in-chief is a man who maintains only a passing familiarity with the truth. Hour after hour and day after day, the “alternative facts” emanating from the White House are so blatant and plentiful that it’s become difficult to keep track.

Here’s Trump, for example, speaking at a press conference last week on the state of the economy:

“To be honest, I inherited a mess. It’s a mess. At home and abroad, a mess. Jobs are pouring out of the country; you see what’s going on with all of the companies leaving our country, going to Mexico and other places, low pay, low wages, mass instability overseas, no matter where you look.”

The truth of the matter, of course, is that such a blanket characterization is utter nonsense. [Read more…]

*** This week’s bonus video clips:

Environment

This Week in Pollution: A big fine for the Mt. Olive Pickle Company

The Mt. Olive Pickle company was fined $131,856 for environmental violations. The company would have to sell about 22,000 jars of these pickles to pay for it — easy, since it moves 110 million jars of products each year.

For 24 of its 91 years in business, the Mt. Olive Pickle Company illegally discharged industrial storm water through a pipe that emptied onto Vine Street and flowed along Cucumber Boulevard. From there, an untold number of gallons — but over 24 years, it was likely in the millions — of untreated water continued to the corner of Relish and Witherington streets before entering the town of Mount Olive’s storm sewer system. The system ultimately discharged the water to Barlow Branch and into the Northeast Cape Fear River.

Now, according to a consent agreement, the EPA has fined the Mt. Olive Pickle Company $131,856 for violating the Clean Water Act over a quarter-century. That’s an average of about $5,500 a year.

It is legal to discharge pollutants into waterways, but only under the terms of a facility’s National Pollutant Discharge Elimination System permit, or NPDES. According to the EPA, Mt. Olive never sought coverage under an NPDES permit.

 

EPA consent agreement with Mt. Olive Pickle Company by lisa sorg on Scribd

 

Mt. Olive has a history of polluting the Barlow Branch and Northeast Cape Fear, according to state and federal environmental records.

Over the past 12 quarters — the company was in violation of water regulations during nine of them. In some instances, Mt. Olive was discharging water with extremely high levels of chloride, ammonia and/or nitrogen. For example, in the summer of 2015, levels of nitrogen and ammonia reached 2,351 percent above legal limits.

In 2015, NC DEQ fined the company $23,000 for violations of the Clean Water Act.

And between 1993 and 1996, chloride levels in the Northeast Cape Fear downstream of the plant were consistently high because of effluent from the pickle plant. In 1996, state environmental regulators granted the company a state surface water quality variance, allowing it to discharge more chloride into Barlow Branch. It met those variance requirements, while reducing its water and salt usage, according to state records.

Mt. Olive is privately held, so some of its financial details aren’t publicly available. But it is one of the top pickle brands in the U.S., producing about 110 million jars of pickles, relishes and other condiments each year.

 

The EPA is accepting public comment on the consent agreement. Submit comments in writing to the Regional Hearing Clerk at the US EPA: Atlanta Federal Center, 61 Forsyth St. SW, Atlanta, Ga. 30303; or via email at bullock.patricia@epa.gov. More information is available from Mary Mattox, mattox.mary@epa.gov.

 

News

Two months after Rolesville High, Wake leaders want to rethink role of campus cops

Wake County Commissioner Jessica Holmes

Nearly two months after a video of a violent altercation between a school resource officer (SRO) and a Rolesville high schooler spurred outrage, a small panel of Wake County leaders urged a fundamental rethinking of on-campus cops’ role, as well as a greater investment in school counselors, nurses and mentors.

Panel members—addressing an estimated 150 or so Wake residents who packed Rolesville Town Hall Thursday night—suggested school leaders should reduce the growing role SROs play in U.S. schools today, a trend critics blame for exacerbating teen arrests and the so-called “school to prison pipeline.”

“If we want to make an investment in school resource officers, we should limit their role to what it started off being, which is to protect and serve,” said Wake County Commissioner Jessica Holmes.

In addition to Holmes, Thursday’s panel of Wake leaders included Sheriff Donnie Harrison, Board of Education Chairwoman Monika Johnson-Hostler, District Court Judge Craig Croom and Rolesville Mayor Frank Eagles.

The forum convened with an internal investigation still ongoing into the Jan. 3 incident at Rolesville High School, in which SRO Ruben De Los Santos of the Rolesville Police Department slammed a teenage girl to the ground during a campus fight. According to media reports, the teen was attempting to break up the fight.

A video of the incident went viral in the hours that followed, sparking criticism from a host of community leaders, as well as the ACLU of N.C. It comes amid a growing contingency of researchers, advocates and groups like the non-partisan Congressional Research Service questioning the use of SROs in U.S. schools.

And at least one unidentified man who spoke Thursday was still palpably angry over the January altercation.

Rolesville Police Chief Bobby Langston declined to comment on the investigation, although he urged patience from members of the community.

“It’s an unfortunate situation that occurred, but everybody is due a due process,” said Langston.

In addition to criticism of the officer, some community leaders have endorsed a spate of reforms, including greater training for SROs and tweaking of the school system’s agreements with 10 local law enforcement agencies, including Rolesville police, serving in Wake schools.

Some protesters argued campus police officers should be removed from schools altogether, citing research that indicates their presence increases the chances students will leave high school with a criminal record.

And, although she stopped short of backing wholesale removal of SROs from schools, Holmes said Thursday that leaders must take stock of the data.

“In the old days, kids would get into a fight in the cafeteria and it would mean a trip to the principal’s office,” said Holmes. “Nowadays, that same kid gets into a fight in the cafeteria and they get handcuffed.”

For some, the controversy over school police has re-energized advocates behind the “Raise the Age” movement. As Holmes pointed out Thursday, North Carolina is one of just two states in the U.S. that charges 16- and 17-year-old offenders as adults.

Read more