News

Gay marriage 3In a one-sentence order and without dissent, the U.S. Supreme Court late yesterday denied a request by a Kentucky county clerk for a stay of orders requiring her to perform marriages as part of her job duties, pending her appeal on the merits to the 6th U.S. Circuit Court of Appeals.

The Rowan County Clerk, Kim Davis, stopped issuing any marriage licenses shortly after the high court’s decision in Obergfell v. Hodges in order to avoid doing so for same-sex couples — which she said would violate her religious beliefs.

A federal district court judge in Kentucky, David L. Bunning, ruled that Davis either had to start issuing marriage licenses to all couples or resign, and the Sixth Circuit refused to block that order while it considered the underlying merits of her appeal, saying that it found “little or no likelihood that the clerk in her official capacity [would] prevail” on those merits.

As SCOTUSblog’s Lyle Denniston noted yesterday, the request “mark[ed] the first time that the Court has been asked to take any action on the spreading resistance, based on religious opposition, to the June 26 ruling opening marriage rights to same-sex couples.”

State lawmakers here codified that right to refuse based upon religious objection this session when it enacted the magistrate’s refusal bill, Senate Bill 2 — over a veto by Gov. Pat McCrory.

Justice Elena Kagan, who handles emergency filings from the Sixth Circuit. referred the request to the full court, which then issued the order.

Read the Kentucky clerk’s full application in Davis v. Miller here.

News

Halifax schoolsParents, grandparents and local community groups in Halifax County filed a lawsuit today in Superior Court against the County Board of Commissioners, contending that the board has failed to provide public school students with the “sound basic education” required under the state constitution.

The parties challenging the school districts allege in the Complaint that county schools now serve fewer than 7000 students assigned to three separate and racially identifiable school districts, rather than one unified district, thereby “forcing the districts to compete for limited educational resources and causing the County to incur duplicative costs.”

By maintaining a three-district system, especially as student population is declining,  the county board not only perpetuates racial lines but also fails to adequately fund the districts, they add.

Though county population is roughly 40 percent white and 54 percent black or multiracial, the student population at two of the three districts is overwhelmingly black. Test scores in those two school districts are among the lowest in the state while dropout rates are among the highest.

The parties suing also contend that the quality of educational resources—including facilities, teachers, learning materials, and curricular and extra-curricular resources—provided to students in Halifax County, and especially students in the majority black districts, falls well below constitutional standards:

Students at Northwest High School in HCPS have endured sewage in the hallways, crumbling ceilings and exposure to mold, and failing heating and air systems. By contrast, the students at RRGSD’s high school attend a school that has been repeatedly renovated since its initial construction, is on the National Register of Historic Places, has a building dedicated solely to physical education and music and a pristine athletic field.

They are asking the court to find that the three-district system fails to provide county students, especially those at risk, with the constitutionally-required sound basic education and to order the board to come up with a plan to unify and better fund county schools.

Read the full compliant in Silver v. Halifax County Board of Commissioners here.

News

VoteThe state court challenge to the 2013 voter ID provisions of the monster voting law is set for a hearing this morning at the Wake County Courthouse on the state’s request to dismiss the case.

That request comes on the heels of the recent amendment to the law providing that voters lacking an acceptable photo ID can still cast a ballot after signing an affidavit that states they had a reasonable impediment to obtaining one.

The state contends the amendment moots the claims that the voter ID provisions are unconstitutional.

The law’s challengers argue though that even with the amendment the right to vote is still burdened, in part because of uncertainty over how election officials statewide will implement the reasonable impediment provision — particularly in light of a possible March 2016 election.  They point to a lack of any plan to educate poll workers and other election officials on how the amendment will work and also to lawmaker statements indicating an intent to repeal the reasonable impediment provision as soon as possible. They are asking the the court to allow them to amend their complaint to challenge the amendment.

Today’s hearing will proceed even as the parties in the pending federal cases challenging the 2013 law have indicated they may be able to reach a settlement of the voter ID claims, depending upon an agreement of conditions needed by challengers to ensure voter protection.

A report to U.S. Judge Thomas B. Schroeder on the status of those negotiations is expected by September 18, 2015.

(Correction:  An earlier version of this post stated that plaintiffs in the federal cases would report to Judge Schroeder on the status of settlement negotiations over the voter ID claims early this week. That has been corrected to reflect the correct date for such a report — September 18, 2015.)

News

DENRpicIn papers filed yesterday, the state through the Department of Environment and Natural Resources asked the court hearing the enforcement actions against Duke Energy to stay the proceedings with respect to ten of Duke’s 14 coal ash plants, saying that a delay would allow the department and Duke Energy to classify and prioritize the ten sites as required under the new Coal Ash Management Act.

The four plants not included in the request are the Asheville Steam Electric Generation Plant, Riverbend Steam Station, Dan River Combined Cycle Steam Station and L.V. Sutton Steam Electric Plant — which the General Assembly already classified as high-risk and are subject to motions for judgement pending in court.

DENR contends that a stay would allow members of the public to participate in the assessment of the ten plants, touting provisions of the Act.

But the Southern Environmental Law Center, which represents advocacy groups that had early on pushed the state to take action and have been permitted to intervene in the enforcement actions, called the motion just another delay tactic, illustrating how DENR continues to work side-by-side with Duke Energy as opposed to aggressively enforcing state regulations.

According to Frank Holleman, senior attorney with the Center, DENR has done nothing to pursue the enforcement cases and never asked the Court to order a cleanup of any site.

“We learned this month that DENR has even agreed with Duke Energy that it will not seek any information from Duke Energy through the enforcement proceedings,” Holleman said in a statement.

“Now, DENR is trying to stop the citizens groups from obtaining from DENR and Duke Energy information to enforce the law. This attempt to stop the enforcement of the law follows DENR’s incomprehensible attempt to stop the Court from ordering the cleanup of three dangerous and polluting coal ash sites, even though Duke Energy agrees they should be cleaned up. DENR has become a bureaucracy that puts its bureaucratic turf issues ahead of its mission to protect North Carolina’s communities and clean water.”

 

News

Remember the Heien case?

That’s the case first reported by Policy Watch in April 2014 in which a Surry County Sheriff’s Officer pulled over a car for having a broken brake light and then — under the guise of a legitimate traffic stop — searched the car, found some cocaine and arrested the driver and the car’s owner, Nicholas Heien, for possession.

Turned out, though, that the officer was wrong — having just one broken brake light violated no North Carolina laws.

After his arrest, Heien asked the trial court to suppress the evidence obtained from the vehicle search, which followed from what he contended was an unlawful traffic stop.

The trial court ruled against him, but the Court of Appeals later ruled in his favor, holding that an officer’s mistaken belief that a traffic violation has occurred is not a reasonable justification for a traffic stop under the Fourth Amendment.

The state Supreme Court then reversed — holding that so long as an officer’s mistaken view of the law is reasonable, the traffic stop is justified under the Fourth Amendment.

“Requiring an officer to be more than reasonable, mandating that he be perfect, would impose a greater burden than that required under the Fourth Amendment,” Justice Paul Newby wrote for the court.

In her dissenting opinion, state Supreme Court Justice Robin Hudson projected what might follow from a ruling condoing an officer’s subjective interpretation of the law:

There are many problems with the majority’s decision—it introduces subjectivity into what was previously a well-settled objective inquiry and creates an interpretive role regarding state statutes for police officers and police departments. The danger in adopting a new constitutional rule here is that this particular case seems so innocuous: Of course it is reasonable that an officer would pull over a vehicle for a malfunctioning brake light. But this new constitutional rule will also apply in the next case, when the officer acts based on a misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

Nonetheless, several months later the U.S. Supreme Court affirmed the ruling by the state Supreme Court.

And guess what’s happened in the months following that affirmance.

As the Marshall Report relates here, “courts in at least a dozen states have excused mistakes made by police who initiated stops based on a misunderstanding of what is legal and what is not” — with violations ranging from brake lights to trailer hitches to air fresheners:

What’s striking about these cases — aside from the officers’ limited understanding of the laws they’re entrusted to enforce — is how flimsy the pretext can be to pull someone over. The grounds cited for stopping drivers included entering an intersection when the light was yellow; or having, on the back of a car, a trailer hitch; or having, in the front of a car, an air freshener hanging from the rearview mirror — you know, the ones shaped like pine trees, the ones so ubiquitous that the president of the Car-Freshner Corporation once told The New York Times Magazine: “We’ve sold billions of trees. Probably right up there with the number of hamburgers McDonald’s sells.”

Hudson was right.