Courts & the Law, Defending Democracy, immigration, News

ICE admits ramping up NC immigration enforcement in response to urban areas not working with them

The historic Immigration and Customs Enforcement (ICE) raids this week were not a fluke — they were a direct result of refusals in urban North Carolina counties, like Mecklenburg, Wake, Orange and Durham counties, to work with the federal agency.

ICE Atlanta field office Director Sean Gallagher told reporters Friday morning that the more than 200 people arrested this week across the state is “the new normal.” He said specifically that the decisions in Mecklenburg, Wake and Durham counties to end their 287g programs — a voluntary partnership to help ICE with immigration enforcement — led to agents having to actively seek undocumented immigrants there.

“This is politics over public safety at its worst,” he said at the press conference, which was reported on by several media outlets across the state, including the Charlotte Observer.

Durham Sheriff Clarence Birkhead and Wake Sheriff Gerald Baker could not immediately be reached for comment.

Mecklenburg County Sheriff Garry McFadden said ending 287g, which he did on the first day he took office, was not political for him. He’s passionate about fighting for the people who can’t fight for themselves.

“The problem with ICE is they want to make it seem like I don’t want to prosecute crimes,” he said, explaining how his law enforcement background contradicts that (he worked homicide cases for 22 years).

McFadden said he believes ICE’s actions this week have been in response to his agency sending them new policies and procedures in the wake of ending their 287g agreement.

“People are still being arrested for crimes,” he said. “I just choose not to come and work with you.”

ICE agents are still welcome in Mecklenburg’s detention center, and they still have access to the information local law enforcement has access to, but McFadden said he’s not going to have his employees do the federal agencies job for them by housing undocumented immigrants who are otherwise supposed to be released.

He pointed out that he doesn’t have anything to do with releasing someone from a facility — bail is set by judges, magistrates and prosecutors.

Sheriff Garry McFadden

ICE held the press conference in McFadden’s county while he was attending a conference in Washington D.C. He said it was meant to get people into an uproar, but he will continue to stand firm.

“They’re scared for somebody to stand up who knows the law and knows their job,” he said of ICE. “I have something they want, and they’re trying to make me play in their sandbox, and I don’t want to play.”

His office also implemented a policy requesting ICE notify them when they show up at the county courthouse so that deputies could monitor their actions. That was done after some ICE agents came into the courthouse, hid their badges and pulled hoodies over their head and mingled in a hallway until a defendant they were looking for came out of a courtroom. The defendant was wearing a suit and tie and was bombarded by the agents, who didn’t identify themselves until they were asked several times who they were.

McFadden said he has no qualms with helping ICE when they are protecting all communities from violent crimes at all levels without targeting just one demographic. He’s focused on reform, and he will continue to stand for change for future generations regardless of ICE’s apparent retaliation.

“In order to be different, in order to bring justice, in order to bring awareness – and it’s something all great leaders have done – you have to stand firm, you have to take the beatings,” he said.

And there could be more ‘beatings’ to come. Gallagher said ICE will continue their enforcement efforts and won’t turn a blind eye to other undocumented family members or friends in the wrong place at the wrong time during targeted operations. He said they conduct operations at courthouses, during traffic stops and at the homes of people they believed to be undocumented immigrants.

Until the press conference Friday, ICE officials had refused to give any specific information about the raids being reported across the state. The raids, according to Gallagher, were unrelated to the undocumented individuals arrested at a gun manufacturing plant Tuesday in Sanford.

Of at least 200 of the other immigrants ICE arrested this week, nearly one-third taken into custody are what the agency calls “collateral:” immigrants who are living here illegally but lack any kind of criminal conviction or pending charges, according to the Charlotte Observer.

Gallagher said 50 of those 200 taken into custody had prior criminal convictions — though he did not say for what types of crimes — and 40 had pending criminal charges. Another 50, he added, had re-entered the country illegally after a prior deportation. About 60 were individuals who weren’t targeted but who were in the vicinity during raids.

Another urban area he criticized in the press conference was Orange county, although Sheriff Charles Blackwood doesn’t really understand why — they never participated in a 287g program. He said ICE is going to do their job, and the only thing Orange County won’t do is honor their detainers, because they don’t have the authority to enforce federal law.

Detainers are documents that essentially ask local sheriffs and jails to hold on to undocumented immigrants for ICE even if they’re supposed to be released on the local level. The documents aren’t orders and they’re not signed by judges — they are requests from ICE.

Blackwood said ICE is one of the largest law enforcement agencies in the country and have plenty of people to do their work without asking sheriff’s and counties do their jobs for them.

McFadden said there are still a number of ways in which his agency works with ICE, including sharing fingerprints, honoring criminal warrants signed by judicial officials, verifying individuals’ legal status for felonies and impaired driving offenses and notifying the federal agency about criminal ICE warrants.

Gallagher’s insinuation, he said in a release, that dangerous people were walking out of jails because of the end of 287g programs is engaging in cynical fear mongering. In a phone interview, he compared ICE’s press conference to a gnat, and said he would still go about doing his job the way it needed to be done without being bothered by it.

“I’m still going to eat, but every now and then you have to shoo a gnat away,” he said. He added later, “This fight is not for everybody but I’m here to stay.”

Courts & the Law, Defending Democracy, News

Head of AOC will leave for same law school as Chief Justice Martin

Marion Warren

North Carolina Administrative Office of the Courts Executive Director Marion Warren will follow state Supreme Court Chief Justice Mark Martin later this month to Regent University School of Law, a Christian school in Virginia Beach, Va.

It was announced today that Warren will become the school’s senior associate dean. It was announced a couple weeks ago that Martin will become dean of the school. Both are resigning their current positions effective Feb. 28.

“Working with the statewide court system to provide programs and services to the nearly ten million people who call North Carolina home has been the greatest honor and highlight of my career,” Warren said in a news release from the AOC. “I will miss this work and the people, but look forward to helping to develop law students into legal professionals.”

Warren has been involved in the North Carolina judiciary for 26 years. His and Martin’s announcements that they would be resigning to work at the same school were unexpected.

The AOC news release credited Warren with the following accomplishments:

  • During his tenure, the judicial branch secured its three largest budgets in state history. The budgets allowed the judicial branch to “restore essential court services that were cut during the recession, provide overdue pay increases to court officials and staff, and invest in technology.”
  • Warren fostered collaboration that resulted in legislation raising the age of juvenile jurisdiction in North Carolina from 16 to 18.
  • He led a comprehensive reorganization of the AOC designed to improve the efficiency and effectiveness of its support to judicial officials and courthouses throughout the state. He has labored to improve dialogue within the judicial branch and dialogue between the judicial branch to the legislative and executive branches of state government.
  • He provided vision, insight, and direction to bring about transformative change and modernization to the technology that supports North Carolina’s unified court system and the people served by the courts.

Prior to his appointment, Warren served as a district court judge in Bladen, Brunswick and Columbus counties since 2000. Before becoming a judge, he was an assistant district attorney for the 13th Prosecutorial District from 1993 tp 2000 and an attorney in private practice from 1991 to 93.

In the most recent 9th congressional district debacle, where the State Board of Elections is investigating irregularities in mail-in absentee ballots, Mark Harris said Warren introduced him to the man at the center of alleged fraud, Leslie McCrae Dowless. Harris was the apparent Republican winner of the midterm race, but the election has not yet been certified pending an ongoing investigation.

The next AOC Executive Director will be appointed by the next Supreme Court Chief Justice. Gov. Roy Cooper has yet to name who he will appoint as the next Chief Justice, but he could change the high court to a 6-1 Democratic majority with his pick.

Courts & the Law, Defending Democracy, News

9th congressional district evidentiary hearing set by Board of Elections

Mark Harris

The State Board of Elections will hold an evidentiary hearing about its 9th congressional district investigation into alleged absentee ballot irregularities later this month.

The Board announced in an email Monday afternoon that the hearing would begin at 10 a.m. February 18 at the North Carolina State Bar, 217 E. Edenton St., Raleigh. It is expected to conclude within two days, but the site is reserved from February 18 to 20.

A Notice of Hearing and Amended Order of Proceedings will be posted today on the State Board’s documents portal for the 9th congressional district investigation, according to a news release from the agency.

Because of the ongoing investigation, the State Board has not certified the results in the 9th congressional district race between Democrat Dan McCready and Republican Mark Harris, as well as three local contests in Bladen and Robeson counties.

Harris, who was the apparent winner in the midterm election, petitioned a court recently to certify the race despite the ongoing investigation because the State Board that initiated it was dissolved by a three-judge panel. The former nine-member State Board (four Democrats, four Republicans, one unaffiliated) voted 9-0 on November 27 and 7-2 on November 30 not to certify results as the investigation into absentee voting irregularities continued.

The court also ultimately denied Harris’ request to certify the race.

Seating is expected to be limited at the evidentiary hearing, but it is expected to be live-streamed for the public.

Courts & the Law, Defending Democracy, News

Report: Appeal about federal public document fees draws lots of support

It costs almost nothing for courts to store and transfer electronic data, but the federal judiciary charges 10 cents per page to use its Pacer system to access public documents. That could soon change.

The New York Times today reported about a federal case on appeal that has attracted a large array of support for breaking down the excessive Pacer costs.

The National Veterans Legal Services Program and two other nonprofit groups filed a class action in 2016 seeking to recover what they said were systemic overcharges. “Excessive Pacer fees inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear,” they wrote.

The suit accuses the judicial system of using the fees it charges as a kind of slush fund, spending the money to buy flat-screen televisions for jurors, to finance a study of the Mississippi court system and to send notices in bankruptcy proceedings.

A 2002 law allows — but does not require — the judicial system to charge for access to the records, but “only to the extent necessary” to pay for “services rendered.” The judicial system says the law allows it to charge the current fees and to spend the proceeds on a variety of programs. People seeking free access, the judicial system’s brief said, can visit the courthouse.

Last year, Judge Ellen S. Huvelle of the Federal District Court in Washington accepted the challengers’ basic theory and said the judicial system had misused some of the money.

The case is now on federal appeal. The New York Times article examines some of the supporting briefs in the case, which state fairly simply that there should be full access to public documents and the money at stake with Pacer would not break the federal judiciary’s budget.

The federal judiciary’s budget is about $7 billion, according to the article. Fees from Pacer generated about $145 million in recent years, or about 2 percent of the total.

Judge Scheindlin said Pacer fees were particularly harmful to litigants who represent themselves, to academic researchers who want to explore systemic issues like sentencing disparities and to journalists at smaller news outlets.

There is one shining exception to the federal judiciary’s hostility to free electronic access to its records. In late 2017, the Supreme Court started its own electronic filing system, making virtually all documents filed with the court available online at no cost.

“The Supreme Court’s system is terrific, and it’s a model for how courts can do this,” said Deepak Gupta, a lawyer for the groups challenging the Pacer fees. “It demonstrates that there isn’t any practical obstacle to making filings available for free.”

Pacer does make some exceptions to its 10-cents-a-page charges. Judicial opinions are free. For other documents, there is a $3 cap. People whose fees are less than $15 in a quarterly billing cycle are charged nothing.

Courts also have some discretion to waive the fees. Curiously, they are generally prohibited from exempting “members of the media.”

NC Policy Watch and many, many media outlets across the nation use and pay for Pacer documents to keep the public informed about federal court cases. Litigation here that have required Pacer access include North Carolina v. Covington, the state’s long-running racial gerrymandering case, Common Cause v. Rucho and League of Women Voters v. Rucho, the more recent partisan gerrymandering cases, and many more.

Media organizations have also filed supporting briefs in the appeal. Read the full New York Times report here.

Courts & the Law, Defending Democracy, News

School of Government explains how the 9th congressional controversy came to be

Are you still confused about how the 9th congressional district remains without representation in Congress?

The University of North Carolina School of Government has taken a swing at trying to explain “our messy congressional election and how we got here.”

Robert Joyce, a Charles Edwin Hinsdale Professor of Public Law and Government, writes about five threads that are interrelated in the controversy over alleged absentee voter fraud in the 9th congressional district. They are: re-configuring the State Board of Elections; allegations of fraud in the election; how many new elections?; what if the new State Board does not order a new election?; and the power of the United States House of Representatives.

The explanatory article was posted a few days ago, so there has since been a new State Board seated. Gov. Roy Cooper announced yesterday who would serve on the Board and they subsequently met and decided Bob Cordle would be chair and Stella Anderson would be secretary — both are Democratic members.

It’s expected the new Board will meet again next week to work out details of a hearing in the 9th congressional district investigation. Joyce wrote in his first thread explanation that the struggle over control of that Board has nothing to do with the congressional election but has become entwined in it.

The second thread explores the types of fraud irregularities that were reported, and the third thread delves into how many new elections there could be if the Board decides there are enough votes at issue or the irregularities are so that they taint the results of the entire election.

If the State Board does not order a new election at all, Joyce writes about the possible outcomes for the 9th district.

But the order for a new election requires the votes of four board members—four out of the five. It is not beyond imagination that by a three-to-two vote the board finds that there are sufficient grounds to order a new election, but cannot secure the fourth vote to actually order the election.

What happens then? Another entry into unchartered waters. Perhaps the state board would decide that at that point it has done all it can and will issue a certificate of election to Harris. Or perhaps the three-member majority would refuse to do that, leading, it could be, to a lawsuit by Harris for a court order for a certificate of election.

Perhaps the Governor could order a new election. There is a statute that authorizes the Governor to call a new election any time there is a “vacancy.” That usually happens, of course, when a sitting member of the House of Representatives dies or resigns. What about the current Ninth district circumstance? Is there a “vacancy” within the meaning of the statute?

If the new state board issues a certificate of election, then surely there will be no vacancy. What happens if the board does not reach that point for a long time? Is there, at some point, a “vacancy?” More unchartered territory.

Finally, Joyce writes about the power the U.S. House holds in this election — it has the final say.

For now, the House is waiting for the North Carolina process to play out—a new state elections board to be appointed, an investigation to be completed, perhaps new elections to be held, and, eventually a certificate of election to be issued. But, ultimately, the House of Representatives may upend any resolution reached at the state level.

You can read the full report here. The State Board also has a public portal here with documents it has made available throughout the course of its 9th district investigation. And you can read more about the new State Board here.