With the budget focus still on education cuts and new Medicaid proposals, it’s easy to forget that plenty of other issues remain unresolved in the General Assembly.

Here’s a quick recap of proposed budget provisions affecting the courts and justice system.

Funding for the Administrative Office of the Court  Both the Senate and the House take an ax to system-wide funding of the courts. The Senate cuts technology funding to the courts by $3.7 million and the remaining AOC administrative appropriation by an additional $1.5 million. AOC fares only slightly better in the House budget, which directs cuts of $4.95 million without specifying where.

Cuts to Family Courts  The initial House budget guts Family Courts, eliminating $3 million in funding and 36 positions, a proposal in neither the Senate nor Governor’s budget. The bodies are still in disagreement over that proposal, though the House has since reduced the cuts to just Family Court administrators, eliminating $962,910 and 11 positions.

Legal Aid  TheSenate proposed cutting the court fees passed through the state bar to Legal Services to the tune of $1.8 million. The text providing for these cuts does not appear in the most recent compromise draft of the budget (as of June 13). Both bodies eliminate a $670,000 Access to Civil Justice grant to Legal Aid.

Public Defender  Both the House and Senate cut funds for indigent defense administrative costs, the House by $466,380, the Senate by $233,190 (including the elimination of the Public Defender Administrator).

State Bureau of Investigation/Crime Lab  Both bodies agree on transferring the SBI to Public Safety, but the Senate also wants to transfer the Crime Lab to DPS.

Three judge courts  The Senate also proposed substantive changes to the handling of constitutional challenges to state laws, requiring that all such cases be heard in Wake County by a panel of three judges selected from different parts of the state by the Chief Justice (similar to the process with redistricting challenges).

The Senate would also require that trial court orders temporarily blocking enforcement of a state law challenged as unconstitutional be automatically stayed (meaning that the challenged law remains enforceable while appeals are pursued).  And any such order would be directly appealable to the state Supreme Court – bypassing the Court of Appeals.

The text of these proposals does not appear in the most recent compromise draft of the budget (as of June 13).

For more on the initial Senate budget, read here.

For a further comparison of the Senate and House budgets, read here.

Kudos to Court of Appeals Judge Bob Hunter, Jr., who in recent remarks to the state bar association set some ground rules for his Supreme Court campaign.

Hunter is running against his colleague on the appeals court, Sam Ervin IV, for the seat being vacated by Justice Mark Martin, who’s running for Chief Justice.

In aftermath of a  primary race in which vicious attack ads were launched against sitting justice Robin Hudson, and following similar ads run against Ervin  in the 2012 election,  Hunter stressed the importance of fairness and civility in the process.

As Doug Clark at the News & Record recaps those remarks:

[Hunter and Ervin] have been colleagues for nearly six years, hearing many cases together. Hunter refers in the remarks, made to the North Carolina Bar Association, to Ervin as “my good friend.”

When he ran for the high court in 2012, Ervin was hit by negative ads financed by an independent political organization. Similar attack ads were run by the same group against Justice Robin Hudson in her primary campaign this spring. Ervin said he expects more of the same this fall. I fear he’s right.

In his turn at the podium, Hunter — a Greensboro native who practiced law for many years here — made a remarkable statement. While defending our system of electing judges and the freedom of speech that comes with campaigns, he said this:

“I will not tolerate any untruths about Jimmy Ervin in this campaign.”

Watch the full video here on the NCBA website.

 

As we reported last week, many of the children crossing the border into the United States wind up in court defending themselves — a situation that presumably does not end well for them.

The American Civil Liberties Union describes the plight of such children in a lawsuit filed in federal court in Seattle against Attorney General Eric Holder, seeking an order requiring that counsel be appointed for children in immigration court:

 Plaintiffs are eight immigrant children, ranging in age from ten to seventeen. The Government has begun proceedings to deport each of them; they will soon be called to appear before an Immigration Judge. In court, the Department of Homeland Security will be represented by a trained lawyer who will argue for the child’s deportation. But no lawyer will stand with the child. Each will be required to respond to the charges against him or her, and, in theory, will be afforded an opportunity to make legal arguments and present evidence on his or her own behalf. But in reality those rights will be meaningless because children are not competent to exercise them. Each child has attempted to find representation through pro bono legal service providers, but none of them have found anyone with the resources to take on their cases. Absent this Court’s intervention, these children will be forced to defend themselves pro se under the immigration laws – a legal regime that, as the courts have recognized, rivals the Internal Revenue Code in its complexity.

Numbers released yesterday by  the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show as expected that represented children fare much better.

Among the conclusions in that report:

Children were not represented about half of the time (48%) they appeared in Immigration Court, although there is wide variation by state and hearing location.

Outcome if attorney present. In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in four (28%) of these cases. And in the remaining quarter (26%) the judge entered a “voluntary departure” (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)

Outcome if no attorney. Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country.

 

Supreme courtFollowing remand by the U.S. Supreme Court in Fisher v. University of Texas at Austin, the 5th U.S. Circuit Court of Appeals has upheld the university’s affirmative action program.

The Supreme Court had sent the case back to Texas for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

In the 7-1 decision by Justice Anthony Kennedy, the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

In a 2-1 decision, the Fifth Circuit found that Texas had met that burden:

It is settled that instruments of state may pursue facially neutral policies  calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university. It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise
achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of
race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action,
looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.

The decision is here.

Health careThe dust has yet to settle since the Supreme Court  took apart the contraception mandate of the Affordable Care Act in its Hobby Lobby decision, but already the next and potentially more debilitating wave of lawsuits challenging a different provision of the Act are making their way through the courts.

This time the target is the tax credit available to help people buy health insurance, a provision which challengers argue only helps buyers in states with new healthcare exchanges. As Alec MacGillis at The New Republic explains the issue:

The section decreeing that people will get federal subsidies to help them pay for individual insurance plans says that the subsidies are available for those buying plans on new exchanges established by the statesand makes no explicit provision for subsidies for those buying plans in states where the state governments left the creation of the exchange up to the federal government. The government and other defenders of the law counter that any confusion in the wording was inadvertent and that the rest of the law makes abundantly plain that the subsidies were intended to go to people buying plans in the exchanges regardless of whether they were established by the states or Washington.

The outcomes of these lawsuits are potentially devastating, as MacGillis notes in a later post,

The stakes in the challenge are enormous36 states have chosen not to set up their own exchanges, which means that if the courts side with the challengers, the millions of people who have bought coverage in those states (the vast majority of whom have receives subsidies to do so) would lose their subsidies and be left unable to afford coverage. This would in turn throw the individual insurance market into disarray as many of these people dropped their coverageexcept, presumably, the sickest of people with the most incentive to keep it.

So far, two federal district courts have dismissed the challenges, but both are on appeal, including one argued before the Fourth Circuit in May, King v. Sebelius – in which a ruling is expected any day.

Here’s a recap of that argument from the Constitutional Accountability Center:

The ACA’s challengers had a tough time before the three-judge panel of the Fourth Circuit this morning. The judges showed no sign of questioning Justice Department lawyer Stuart Delery’s contention that the text and structure of the ACA showed Congress’ intent that tax credits and subsidies should be available to all Americans in all states, whether their exchanges are run by the Federal government or the state.

While Judge Thacker remained largely silent, Judges Davis and Gregory asked a series of questions that indicated deep skepticism of the case presented by attorney Michael Carvin, representing the challengers. Judge Davis framed Carvin’s argument in devastating fashion, in paraphrase: “You want us to kick millions of people off health insurance so a few people can save a small amount of money.” The court clearly had serious concerns about the implications of this last-ditch effort to kill the ACA.