Courts & the Law, Defending Democracy, News

Boswell releases emails amid ACLU lawsuit pressure

Rep. Beverly Boswell

The ACLU of North Carolina has forced a House Representative’s hand in a battle over public records.

Rep. Beverly Boswell (R-Beaufort) “decided to” release her unredacted emails after Kitty Hawk resident filed a lawsuit. She had initially refused to release anything, then later released documents concealing the identity of everyone her office communicated with.

The full release comes more than a year after one of her constituents, Craig Merrill, first asked for public records of phone and email correspondence between her office and the residents and businesses she represents in North Carolina House District 6, which includes parts of Beaufort, Dare, Hyde, and Washington counties.

The ACLU filed the public records lawsuit on behalf of Merrill in January.

“We are glad that Representative Boswell finally agreed to do the right thing and stop hiding who she was communicating with about the public’s business,” said Chris Brook, Legal Director of the ACLU of N.C. “North Carolinians deserve transparency from their elected officials – and the law requires it.”

In a letter addressed to Brook about the records release, the special deputy attorney general who represents Boswell, Olga Vysotskaya de Brito, said the lawmaker “made a decision to disclose the in-redacted set of documents” Merril requested.

“In our view, today’s production of documents resolved the pending controversy,” the letter states.

They also filed a motion to dismiss the lawsuit. The motion essentially states the case is moot and should be dismissed for lack of subject matter jurisdiction.

In a motion for summary judgment filed last month, the ACLU said that there was no legal justification for Boswell to conceal who she and her office were corresponding with on matters related to her work as a public official on issues including the Outer Banks plastic bag ban.

Many of the documents Boswell provided contain the following message: “Email correspondence to and from this address is subject to North Carolina Public Records Law and may be disclosed to third parties.”

“The public deserves to know how our representatives are conducting business on our behalf so that we can hold them accountable,” Merrill said. “I am glad my representative has finally agreed to follow the law, but it never should have taken more than a year and a lawsuit for her to do the right thing and be open about her work with a constituent.”

Brook said Wednesday that Boswell provided the unredacted records after they filed a motion for summary judgment arguing that Merrill was legally entitled to know who she was corresponding with on matters of public interest.

“Put another way, Representative Boswell only provided unredacted records after we made plain that we would continue pursuing the matter in court,” he said. “The ACLU-NC has not agreed to dismiss the lawsuit as it is not yet fully resolved. The state Public Records Act entitles individuals who substantially prevail in public records litigation to receive attorneys’ fees. We will be seeking fees to recover money spent litigating a case that we offered Representative Boswell every opportunity to resolve prior to filing a lawsuit.”

Courts & the Law, Defending Democracy, News

Without judicial primaries, NC Democratic Party endorses for statewide races

From left: Anita Earls, John Arrowood, Wayne Goodwin, Allegra Collins and Toby Hampson

North Carolina Democrats have been forced to “take an extreme measure” this year by endorsing judicial candidates for statewide office.

A newly-created endorsement panel met at the Democratic Party convention over the weekend in response to Republican legislator’s eliminating judicial primary elections this year.

Party Chair Wayne Goodwin said they prefer to have voters choose Democratic judicial nominees rather than party officials. He testified last week at a federal trial over the elimination of judicial primaries about the endorsement panel, noting that there was only time to address statewide races — there are four — and not trial court races — there are more than 100.

“This was not by choice or by design,” he explained at a Tuesday press conference. “It was forced upon us by changes by a Republican legislature desperate to hold on to power and afraid to face the voters this fall.”

The Party endorsed well-known civil and voting rights attorney Anita Earls (she also founded the Southern Coalition for Social Justice) for a State Supreme Court seat and John Arrowood (current Court of Appeals judge), Allegra Collins (Raleigh attorney and Campbell University Law School professor) and Toby Hampson (Raleigh attorney) for Court of Appeals seats.

Goodwin said there was no other place in the country that had experienced so many changes to an independent judiciary as rapidly as North Carolina. The legislature in the past two years has made all judicial elections partisan, shrunk the Court of Appeals, cancelled a judicial primary election and dabbled in judicial redistricting.

“They rewrote the law to stack the deck in their favor, and that’s what they do,” Goodwin said.

He expressed concern over a particular measure that allows judicial candidates to change their party affiliation up to the last minute — there used to be a 90-day registration requirement. He said a Franklin County attorney who has publicly criticized Democrats and supported Donald Trump already announced his switch from a Republican to Democratic registration.

“This is not a hypothetical – it’s already happening, my friends,” Goodwin said. “There’s rumors of even more Republicans following suit. These games are unacceptable.”

Courts & the Law, Defending Democracy, News

Report: Superior court judge finds out via text of his seat elimination

A senior resident Superior Court judge of 16 years recently found out his seat was eliminated through a text message from a court official in Wake County, according to a report in the Winston-Salem Journal.

Legislators had not and still have not spoken with Judge Anderson Cromer about eliminating his seat in the state budget, which was vetoed by Gov. Roy Cooper. The Senate voted to override the veto last week and the House is expected to take it up today.

The Winston-Salem Journal reports on some of the judicial changes in the budget:

Cromer’s judicial seat in the 17B Judicial District was eliminated in the state budget when state legislators decreased the number of superior court judges in that district from two to one. Cromer’s term expires at the end of this year and he was running for a third term. The other superior court judge is Angela Puckett, whose term expires in 2024.

State legislators also moved Caswell County into the 17A Judicial District, which had previously just included Rockingham County. In the new 17A Judicial District, the number of superior court judges will decrease from three to two, eliminating the judicial seat of Judge W. Osmond Smith. Smith’s term also expires this year. Judicial District 19B will get a second superior court seat, according to the budget.

If the House overrides Cooper’s veto, budget changes would take effect Jan. 1.

The changes were based on a workload formula from the N.C. Administrative Office of the Courts, which also never spoke to Cromer about his seat elimination, according to the report.

Cromer said he was disappointed about not getting any advance notice.

But that seems to be more and more the M.O. of the legislature — the only unsurprising thing lawmakers have done in the past year is propose and pass surprise measures aimed at the manipulating the judiciary for partisan gain.

You can read the article in full here.

Courts & the Law, Defending Democracy, Education, News

Board of Education, Superintendent both claim wins in NC Supreme Court ruling

Editor’s Note: This story has been updated to reflect the comments of the State Board of Education.

Lawmakers did not violate the constitution when they transferred power from the State Board of Education to newly elected Superintendent of Public Instruction, Mark Johnson, according to the State Supreme Court.

A unanimous opinion was released Friday, which officially puts Johnson in charge of the $10 billion public school system. Chief Justice Mark Martin did not hear the case after previously recusing himself.

Attorneys for the Board of Education had argued that lawmakers, in crafting House Bill 17, encroached on the Board’s constitutional authority by copying and pasting its powers and duties and transferring them to Johnson.

They said lawmakers could not give or reallocate constitutional duties and that the Board’s core constitutional power was to supervise, make rules and administer funds.

Johnson’s attorneys argued that the General Assembly had authority to transfer power because of the constitutional language that the Board’s power is “subject to laws enacted by the General Assembly.”

The high court’s decision that HB717 did not encroach on the Board’s constitutional authority was in part because of “the existence of numerous statutory provisions subjecting the Superintendent’s authority to appropriate rules and regulations adopted by the Board.”

Attorneys for the Board, Bob Orr and Drew Erteschik viewed the Supreme Court opinion as a win.

“We are pleased with the Supreme Court’s decision, which reaffirms that the State Board of Education — and not the Superintendent of Public Instruction — has the ultimate authority under the Constitution to supervise and administer the state’s public school system,” they said. “We are also pleased that, while the Court stopped short of invalidating this particular legislation on its face, the Court unanimously declared that the Board has the final say on ‘the mechanics of the relationship between the Board and the Superintendent, as well as how their respective departments will operate internally.’ Beyond those initial observations, we are continuing to study the Court’s decision.”

Johnson also viewed the opinion as a win. He said in an emailed statement that the Supreme Court’s opinion “validates the common-sense proposition that the duly-elected Superintendent of Public Instruction should lead the Department of Public Instruction.”

“I am looking forward to putting this lawsuit behind us and working with board members to strengthen public education in North Carolina,” he stated. “While it is unfortunate that it took more than a year and hundreds of thousands of taxpayer dollars to resolve this matter, the positive news is that we will be able to utilize the data-driven analysis to reorganize DPI to help the agency focus on its core mission of supporting educators, students, and parents across North Carolina.”

You can read the full opinion below.

NC Supreme Court Opinion Board of Edu by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Will there be a late judicial primary? Federal judge to decide if elimination violated Constitution

With a little over a week to go before filing for office, judges are left in limbo as a federal court considers whether lawmakers’ cancellation of judicial primaries this year disenfranchised the North Carolina Democratic Party and its voters.

If U.S. District Court Judge Catherine Eagles does find a constitutional violation stemming from Senate Bill 656, or the Electoral Freedom Act, “the only remedy is a primary,” which would likely be scheduled for later this year. The primary election for other races was held in May. Candidate filing for judicial seats runs from June 18-29.

“June 29 is a very important cutoff date,” said James Bernier, special deputy attorney general, who represents the state and State Board of Elections and Ethics Enforcement.

He added that things become “risky” after that point, but didn’t expound. Eagles, who did not rule from the bench after a trial Thursday or give any indication of who her finding might favor, was skeptical since Bernier and an attorney for the General Assembly explicitly agreed in a previous hearing that there would be plenty of time for a late primary after trial if necessary.

“There’s a changing landscape here with judicial redistricting,” Bernier explained.

After opposing counsel pointed out that a redistricting bill had been passed and sent to the Governor as late as Monday night (SB 757, which redistricts Wake and Mecklenburg counties), Eagles said there was justification for her cynicism.

“Oh, just Monday,” she asked. “Just in time.”

Judicial redistricting and merit selection are two of three justifications Martin Warf, the attorney representing lawmakers, gave for lawmakers cancelling judicial primary elections this year. The third was that they were treating statewide and local judges the same — despite judicial redistricting only affecting trial court judges.

State Democratic Party Chairman Wayne Goodwin testified that they had to modify internal operations and create an endorsement panel for statewide judicial races (which required time and money) — there is one seat on the state Supreme Court and three on the Court of Appeals up for election this year. The panel is expected to meet this weekend.

The party doesn’t have the time or resources to endorse for the 150 or so trial court judicial elections, although Wake County Democratic Party Chair Rebecca Llewellyn testified some counties were considering creating endorsement panels.

Goodwin said that the creation of an endorsement panel forced the party to reallocate power from the people to the executives; it went from a bottom-up organization to a top-down one. Primary elections, he said, were the voters voice and mechanism for choosing a “standard bearer,” or public representative of the Democratic Party.

Goodwin also testified that the other part of SB656 that was causing a “severe burden” on the Democratic Party is a provision that allows judicial candidates to change their party affiliation up until the time of filing. There was previously a requirement that they had to be registered with a political party for at least 90 days to file as a candidate of that party.

“If this were not a partisan general election [for judges], we’d be in a different situation,” he said.

Lawmakers made all judicial elections partisan again in two separate bills in 2016 and 2017. Edwin Speas, an attorney for the Democratic Party, said during his closing arguments that they could not find any other legislature in the nation that eliminated judicial primaries in a partisan election.

Speas outlined the burdens that were imposed on the Democratic Party, contended there were alternative ways the General Assembly could achieved their end goal without eliminating the primaries and said they didn’t have a legitimate and neutral justification.

“This is a classic case of hurried, not carefully considered, not thoughtful legislative enactment,” he said.

Warf said the plaintiffs in the case had a high burden of proof that they didn’t meet and that laws passed by the General Assembly were presumed constitutional.

“If there is a burden, then it is minor,” he said. “Do the justifications hold up? We think so.”

He contended that the Democratic Party has the ability to choose their candidates in other ways than a primary election.

John Wallace, another attorney for the plaintiffs, said it is the collection of burdens on the Democratic Party that amount to a First Amendment constitutional violation of association rights, not any one burden on its own.

He also pointed out that any judicial candidate the Democratic Party endorsed without a primary election would not be indicated on the general election ballot, so there was no real meaningful way to communicate with voters.

Eagles took all arguments under advisement but said she was sensitive to the time constraints in the case and would have a ruling as soon as possible.