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

News

North Carolina Democrats introduce bills to bolster citizen review boards, expand hate crime protections

Rep. Rodney Moore

Rep. Rodney Moore (D-Mecklenburg)

North Carolina lawmakers have introduced a bill that would give cities the authority to allow citizen review boards investigatory and subpoena powers.

House Bill 165 is sponsored by Representatives Rodney Moore (D-Mecklenburg) and Amos Quick III (D-Guilford) and would also give cities the power to establish citizen review boards without having to first get permission from the General Assembly.

“In our democracy, ultimately power is held by the people,” Quick said. “The most important document in the establishment of our nation begins ‘we the people.’ … This bill will give some of that power back to the citizens.”

Moore held a press conference Wednesday to discuss HB165 and two other anti-discrimination bills he is sponsoring.

Rep. John Autry (D-Mecklenburg) applauded Moore and Quick for sponsoring HB165 and said it has long been a request from the Charlotte Police Chief to give the city’s citizen review board subpoena power.

“Two years ago, the Charlotte City Council took every power it had granted by the General Assembly to expand the authority of the citizens review board as far as it could go within the state statute,” Autry said. “I think [this bill] puts North Carolina in the right light and it certainly puts us in the correct direction.”

The other two bills are House Bill 99, which would prohibit law enforcement officers from racial profiling and require them to undergo yearly training about discriminatory profiling; and House Bill 152, which would expand the population protected by the state’s hate crime statute and increase crimes from a misdemeanor to a felony.

“I think we had kind of a lackluster penalty in the past and so we really want to put these reforms in place so that we can assure our citizens of our commitment as elected officials to their quality of life,” Moore said.

Hate crimes in North Carolina would be expanded to include gender, sexual orientation, gender identity or disability. It currently only covers race, color, religion, nationality or country of origin.

Moore pointed to statistics from the Southern Poverty Law Center that show an uptick in hate crimes and hate groups.

The number of hate groups operating in the country in 2016 remained at near-historic highs, rising from 892 in 2015 to 917 last year, according to the organization. There are 31 reported hate groups in the state of North Carolina.

In the first 34 days of Donald Trump’s presidency, SPLC reports there was 1,094 hate crimes and lesser incidents across the nation. Overall, anti-immigrant incidents (315) remain the most reported, followed by anti-black (221), anti-Muslim (112), and anti-LGBT (109).

Violence against trans people also hit a new high last year, with at least 26 apparent murder victims, surpassing the 23 killed in 2015. The SPLC found trans women of color are the minority most victimized by violent hate crime.

“We want to make sure that all of our citizens are protected,” Moore said. “We are aggressively hoping to push this legislation through.”

Rep. Graig Meyer (D-Durham, Orange) is a sponsor of the bill. He said if the Republicans at the General Assembly want to demonstrate that they are not in favor of discrimination — which they have said in regards to their stance on the discriminatory House Bill 2 — they will support this legislation.

“Actions speak louder than words,” he said. “We are hearing politicians at every level deny that their actions are discriminatory in intent or effect.”

Rep. Jean Farmer-Butterfield (D-Pitt, Wilson) also spoke in favor of the hate crime bill. She said her counties have experienced hate crimes and constituents have asked for protection.

The ACLU of North Carolina and Safe Coalition NC also expressed support for the bill.

“We have to be diligent and we have to move forward. We have to set the tone for policy,” Moore said. “We can’t wait for another body to give us an idea; we are the North Carolina General Assembly and so it is incumbent upon us to look for ideas and try to put in place laws that will protect our citizens and enhance their life.”

HB2, News

2 Republicans, 2 Democrats file HB2 repeal forbidding cities from regulating bathroom access; Cooper expresses concern

Two Republicans and two Democrats have introduced a bill that would repeal House Bill 2 but forbid cities and municipalities from regulating access to multiple occupancy bathrooms, to showers and to changing facilities.

Representatives Chuck McGrady (R-Henderson), Ted Davis Jr. (R-New Hanover), Marvin Lucas (D-Cumberland) and Ken Goodman (D-Hoke, Montgomery, Richmond, Robeson, Scotland) are sponsoring the bill.

Right under the section repealing HB2, House Bill 186 reads:

The regulation of access to multiple occupancy bathrooms, to showers, and to changing facilities is a matter of general, statewide concern and the entire field of regulation of such access is preempted from regulation except as provided by an act of the General Assembly.

McGrady said at an impromptu press conference (that he initially denied was going to be held) that he had been working on the bill for 10 months.

He said he did not have the votes for a straight-up full repeal of HB2, despite Democrats and Gov. Roy Cooper saying for months that there are enough votes if Republicans would just put a bill on the floor.

“[This is] certainly the best starting point we’ve had up until now,” he said.

Cooper presented a compromise last week to HB2 that Republicans scoffed at. McGrady said Wednesday that he would need Cooper to secure enough Democratic votes to pass HB186.

McGrady also said he did not run the bill by Cooper before filing it, adding “I don’t report to the governor.”

Cooper responded late Wednesday with concerns about HB186 and said he remains committed to repealing HB2.

“But I am concerned that this legislation as written fails the basic test of restoring our reputation, removing discrimination, and bringing jobs and sports back to North Carolina,” he said. “I will keep working with the legislature.”

When asked if HB 186 would appease the NCAA, ACC and other organizations that have refused to hold events in North Carolina, McGrady said he couldn’t speak for them but he didn’t see why it wouldn’t.

“I think we’ve hit the sweet spot,” he said.

HB186 would put in place a statewide non-discrimination law that does not include any language about sexual orientation or gender identity. In some places, it replaces the word “gender” with “sex.”

The bill would give cities the authority to adopt nondiscrimination measures to protect the LGBTQ community but it comes with caveats and a public referendum clause. Cities would have to wait 90 days to implement such a measure and if opponents gathered enough signatures against it, it would be put up to the referendum.

If a nondiscrimination measure was adopted, it would not apply to extraterritorial jurisdiction, bathrooms, showers or changing facilities, state or county entities or charitable organizations and religious institutions.

The bill also strengthens penalties for certain offenses in a public changing facility or a changing facility in a place of public accommodations.

Despite claims that the bill is “bipartisan” and constitutes a “full repeal” of HB2, many Democrats and human rights advocates are not pleased.

“H186 is in no way, shape, or form a repeal of the discrimination of #HB2. Don’t believe anyone who tries to say it is. #ncpol,” tweeted Rep. Grier Martin (D-Wake).

Equality NC Executive Director called HB186 a “train wreck” on Twitter and said the Democrats sponsoring the bill are doubling down on discrimination.

“.@ChuckMcGrady thinks your civil rights should be up for a vote, #lgbtq NC’ans. Do you agree? #ncpol,” Sgro tweeted.

The ACLU of North Carolina tweeted that the bill would make it harder for cities to pass LGBT protections.

House Democratic Leader Darren Jackson (D-Wake) also tweeted his disapproval of the bill.

“James Madison: Government should ‘protect the minority of the opulent against the majority.’ We cannot put NDO’s to a vote of the majority,” the tweet states.

Courts & the Law, News

House passes bill to add party labels to Superior, District court judicial elections

The North Carolina House voted 65-51 today to pass a bill that would make Superior and District Court judicial elections partisan again.

House Bill 100 will now go to the Senate for a vote. If passed, all of North Carolina’s judicial elections would become partisan since lawmakers already added party labels back into Supreme Court judicial elections during a special session in December.

Partisan judicial elections are not recognized as a best practice for keeping the courts independent, and North Carolina joins only seven other states across the nation that have them.

Republicans and Democrats had similar arguments on the House floor that were presented in a Tuesday committee meeting. Proponents of the bill say voters need party labels to help educate them about judicial candidates’ ideological philosophies. Opponents argue that judges should be free from political labels that could make them subservient to a particular party when they are supposed to be wholly independent.

Members of the public, legal advocates and attorneys have spoken out against the bill.

News

Senate moves forward with confirmation hearing despite court order; Larry Hall’s absence criticized by GOP

Larry Hall

Larry Hall

The Senate Committee on Nominations proceeded Wednesday with a confirmation hearing despite a court order that states the advice and consent process can’t begin without Gov. Roy Cooper first formally submitting his nominees to the Senate president.

Cooper has not formally submitted the names of his cabinet appointees and his office has said he will not do so until the March 7 trial in his lawsuit challenging the constitutionality of the hearings. The law states that he has until May 15 to submit his appointees.

Larry Hall, secretary of veterans and military affairs, did not show up for the hearing Wednesday and Sen. Wesley Meredith (R-Cumberland) argued about whether he had been formally nominated already.

Meredith, the Senate Majority Whip and co-chair of the Nominations Committee said Hall was named secretary on Jan. 13, resigned from his position with the General Assembly on Jan.16 and has been serving in the position ever since.

He added that in his opinion, he didn’t think anyone could say with a straight face that Hall hadn’t already been nominated.

The six-page order from the three-judge panel, however, acknowledges that Cooper has not made the formal nominations to the Senate president to trigger the advice and consent process.

“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,” the document states.

Yesterday, Cooper wrote the chairman of the Nominations Committee, Sen. Bill Rabon (R-Bladen, Brunswick, New Hanover, Pender) informing him that moving forward with the confirmation hearings violates the court order.

The court denied Cooper’s request for a preliminary injunction to stop the hearings, but it did so based on the fact that Cooper had not yet formally submitted his nominees to the Senate, the letter states.

“The Court will decide whether or not the legislature’s actions are constitutional,” said Cooper’s spokesman Ford Porter in a press release yesterday. “Until then, Governor Cooper hopes Senate Republicans will put aside the political theater and work to find common ground on issues that matter to North Carolinians like raising teacher pay, helping communities recover from Hurricane Matthew and repealing HB 2.”

Meredith said at the hearing Wednesday that the Senate has tried to afford Hall every opportunity to show up for the hearing, and will give him one more chance to show up tomorrow.

“As we have said all along, the purpose of the confirmation hearing is to determine whether Gov. Cooper’s cabinet secretaries are capable, qualified and without conflicts of interest and willing to follow the laws of our state and our nation,” he said. “By disrespecting this process, Secretary Hall is openly defying a law that has been backed by the courts and is plainly allowed in the constitution.”

He added that Hall is failing the “obey the law” portion of the criteria the Senate will use to confirm Cooper’s nominees, and they will consider this as they decide whether to move his nomination forward.

“If he does not [show up tomorrow], he should bear in mind there are consequences when state officials refuse to follow the law,” Meredith said.