Courts & the Law, News

Lawmakers will hear public comment on Congressional maps tomorrow

Rep. John Torbett (R-Gaston) chats with Sen. Ralph Hise (R-Mitchell) during a Joint Select Committee on Congressional Redistricting meeting. (Photo by Melissa Boughton)

Congressional redistricting at the North Carolina legislature appears to be nearing an end, and the public will have their chance to weigh in Wednesday.

The General Assembly announced today that it would hold a public hearing on its new maps at 10 a.m. Wednesday in room 643 of the Legislative Office Building. Up to 60 members of the public can sign up online to speak in person for up to two minutes, according to the legislature’s website. The cut-off to sign up is 5 p.m. today.

Individuals can also submit online comments about the maps currently being drafted. Lawmakers are expected to complete the drawing phase of remedial redistricting at noon today and related documents will be posted online.

A court didn’t order lawmakers to draw new Congressional maps, but it enjoined the use of the 2016 plan based on preliminary arguments in Harper v. Lewis that it unconstitutionally benefited Republicans. The three-judge panel encouraged lawmakers to start remedial redistricting in the interest of time, because ongoing litigation could mean they have to move the 2020 primaries.

Candidates filing for Congressional races is currently set to begin Dec. 2. It’s not yet clear if the maps lawmakers enact will serve as the final maps for the 2020 election.

At the same time litigation over the 2016 plan is ongoing, there is pending federal litigation over the three-judge panel’s enjoining of the map because of how closely timed it is to the election, and particularly candidate filing. A hearing has not yet been set in Brewster v. Berger, but district court Judge Louise Wood Flanagan was appointed to preside over the case.

Courts & the Law, News

ICYMI this week: SCOTUS hears arguments on Blackbeard’s pirate ship controversy

The U.S. Supreme Court heard arguments earlier this week about a dispute over footage of the Blackbeard pirate ship, Queen Anne’s Revenge, which ran aground in Beaufort in 1718 and was discovered in 1996.

Rick Allen’s Nautilus Productions sued the state of North Carolina for posting its photos and videos of the ship online without permission. The video production company was documenting the salvaging of the shipwreck and Allen had registered the work with the U.S. Copyright Office. At the center of the dispute is whether federal law protects the copyrighted work from infringement and whether states are immune from certain copyright infringement claims under the 11th amendment to the Constitution.

The Wall Street Journal covered the oral arguments at the high court.

A federal appeals court in Richmond, Va., dismissed the claim, finding that North Carolina, as a state government, couldn’t be sued for infringement.

Justice Stephen Breyer suggested that if that view prevailed, every state could turn to piracy of intellectual property to plug its budget holes.

A state government could set up its own online streaming service, “charging $5 or something to run ‘Rocky,’ ‘[Captain] Marvel,’ ‘Spider-Man’ and perhaps ‘Groundhog Day,’” Justice Breyer said. “Several billion dollars flows into the treasury. Now, if you win, why won’t that happen?”

North Carolina’s lawyer, Ryan Park, said the remedy should be a court injunction blocking further copyright infringement, not exposing the state to damages. He stressed the flip side of that hypothetical, arguing that the high damages federal law prescribes for copyright infringement—$150,000 per incident—could prove costly to state taxpayers.

“When you sue a sovereign, on the opposite side of the judgment are the people and the people’s money,” Mr. Park said. “Our cultural-resources department is operating on a shoestring budget.”

The state initially paid Nautilus a $15,000 settlement in 2013 and agreed not to use the copyrighted material going forward, but eventually began using it again and subsequently passed “Blackbeard’s Law” which converted the work to public record, according to the court documents.

Mr. Allen claimed the state continued to infringe his copyrights by posting too much material online and not including the watermark and time stamp. The North Carolina legislature responded by enacting “Blackbeard’s Law,” which allows the state to use as it wished any materials documenting the salvage of a shipwreck.

Justice Sonia Sotomayor said she found Blackbeard’s Law “deeply troubling.” But she and other justices pointed to a 1999 Supreme Court precedent, known as Florida Prepaid, which struck down a federal law that exposed state government to suits over patent infringement. The court said then that Congress hadn’t established that states were infringing patents so wantonly as to justify curbing their sovereign immunity.

Justice Elena Kagan suggested Mr. Allen likewise had failed to show states were prolific copyright pirates; he identified 16 such incidents.

Read the full Wall Street Journal report here.

Courts & the Law, Defending Democracy, News

Republicans ask to recuse Justice Anita Earls from map appeal

Justice Anita Earls

Republican legislative defendants in a partisan gerrymandering case involving legislative election maps has asked for North Carolina Supreme Court Justice Anita Earls to be recused from reviewing litigation on appeal.

A three-judge panel in Wake County Superior Court already struck down the previous legislative maps because they unfairly advantaged Republicans, and they ordered lawmakers redraw them without using partisan data and in full public view.

The maps they subsequently enacted as part of the Common Cause v. Lewis remedial process were accepted by the court despite the plaintiffs’ objections to five House county groupings. The plaintiffs are now appealing the decision to accept those county groupings and have asked for expedited review from the state Supreme Court.

The legislative defendants and intervenors in the case — Republican voters — responded to that request and told the Supreme Court there was no need for discretionary review and no cause to expedite the case. The state defendants took no position on the merits of the appeal, but it did express a desire for the case to be resolved as soon as possible.

At the same time the legislative defendants objected to the Supreme Court reviewing the case, they also filed a motion to recuse Earls.

“One of the lead plaintiffs here, Common Cause, is a former co-litigant alongside a client of Justice Earls. Another, the North Carolina Democratic Party, is her principal campaign donor,” the motion states. “It, in fact, gave more than 40 times the amount of any other donor to her campaign. And the real party defendant is the Republican-controlled General Assembly, which has been adverse to Justice Earls in every redistricting dispute this decade predating her joining this Court.

“Justice Earls was not shy to criticize the General Assembly’s leadership in public statements. For example, before this case was filed, she stated both in court and in public speeches that the plans challenged in this case are unconstitutional partisan gerrymanders. Indeed, given the case history, it is likely that, Lawyer Earls laid the groundwork for this litigation.”

The motion goes on to state that ” the public would have an objective basis to view Justice Earls as a sure vote against the General Assembly and for Plaintiffs,” and that they too believe it because they waited to file their lawsuit until after her election.

The plaintiffs have not yet formally responded to the the motion.

The actual motion for recusal is 40 pages, but the entire document with exhibits is 542 pages. Exhibits include social media posts from Earls, underlying litigation and prior testimony from the Justice.

A major point for the request for Earls to be recused has to do with big donations to her campaign by the North Carolina Democratic Party.

“The appearance of a justice ruling in a case brought by a big-money political party donor demeans the integrity of the process and therefore is a case where the impartiality of Justice Earls may ‘reasonably be questioned,'” the document states.

It should be noted that there were similar efforts to have Republican Supreme Court Justice Paul Newby recused from a redistricting case because the biggest contributor to his most recent re-election campaign at the time was the Republican State Leadership Committee. Newby did not recuse himself.

Read the full motion to recuse Earls below.



Motion to Recuse Earls (Text)

Courts & the Law, News

Governor vetoes bill to remove non-citizens from voter rolls

Gov. Roy Cooper vetoed a bill Wednesday that would task the State Board of Elections with comparing voter and juror information to remove non-citizens from the voter rolls.

“Only citizens should be allowed to vote,” he said in a news release. “But blocking legitimate voters from casting a ballot is a risk we cannot take when the law already prevents non-citizens from voting and has legitimate mechanisms to remove them from the rolls. This legislation creates a high risk of voter harassment and intimidation and could discourage citizens from voting.”

Voting rights advocates encouraged Cooper to veto the bill as soon as it passed the legislature. They said the use of jury data would not reliably help maintain the voter rolls and could lead to discrimination and the disenfranchisement of recently naturalized citizens.

Cooper signed six bills into law, including a measure that restores early voting on the last Saturday before Election Day. Senate Bill 683 also extends some early voting hours.

“This legislation restores Saturday voting before election day which is one of the most popular and convenient days to vote,” Cooper said. “This will help reduce long lines on election day and make it easier for people to have their voices heard.”

Courts & the Law, immigration, News

NC justices examine state court power in immigration detention cases

An attorney for the Mecklenburg County Sheriff’s Office argued Monday that state courts cannot delve into immigration enforcement under any circumstance — even if Immigration and Customs Enforcement (ICE) detains the wrong person or officers who aren’t trained or deputized to enforce federal laws do so anyway.

The North Carolina Supreme Court heard arguments yesterday in Chavez v. Carmichael, a Mecklenburg County case that involves two inmates challenging their immigration detention status in state court. It’s a complicated case with many moving parts, but the central issue the justices are considering is whether a state court has the jurisdiction to review habeas corpus petitions from federal immigration detainees.

Sejal Zota, the legal director of Just Futures Law, argued Monday that state courts should have the power to review whether or not a threshold for state officers to make a federal immigration arrest was met.

For example, if a county has a 287(g) agreement, a partnership with ICE in which it delegates authority to local agencies to perform federal immigration enforcement in their jurisdictions, only officers who are certified (i.e. trained and deputized in the program) can make those federal arrests. A state court should have the power to inquire whether officers were certified in an arrest.

“When a county enters into a 287(g) agreement, that is not blanket authority for everyone to start doing immigration arrests,” Zota said. “It doesn’t apply to everyone.”

She also argued that a state court should be able to establish that there was state law that allowed a federal immigration arrest (the 287(g) agreement) and that the right person identified in an ICE detainer is the right person in detention.

“This is very simple fact-finding — the trial courts deal with this all the time,” Zota said.

The point of that type of inquiry would be to prevent mistakes and the deportation of people who may be citizens or in the U.S. legally.

Sean Perrin, the attorney representing the Mecklenburg Sheriff’s Office, argued that the federal government has exclusive authority over immigration matters and that a state court has “no power to do anything” once it’s established an detainee is in federal custody (whether they are held in a state jail or not).

He said that if state courts could inquire about the validity of federal immigration detainers, it would lead to 100 different jurisdictional rules across the state, which defeats the purpose of a uniform federal system.

“Mecklenburg County would have different immigration rules than Cherokee County; Cherokee County would have different immigration rules than Buncombe County and so on,” he said.

Justice Robin Hudson asked Perrin if it has to first be established that the person in the immigration paperwork is the correct person, and he said “no.” Justice Mark Davis asked what would happen if a state judge saw an issue in a case — do they just say “oh, gee, have fun litigating that in federal court?”

“Yes, exactly,” Perrin said.

He added that a state court finding an error in an immigration case would be attacking federal immigration warrants, and reiterated the federal courts exclusive control over the issue. In the event the feds get something wrong, a person might be able to file a civil rights claim against the agency that arrested them, but a state court wouldn’t have authority in a case even if a jurisdiction’s 287(g) agreement was expired.

Zota, in closing, said a state court might not be able to grant relief in an immigration case, but it always has jurisdictional authority to inquire about the basis for someone’s detention.