In a unanimous opinion issued today, the Court of Appeals ruled against the city of Asheville in its fight for control over its water system, reversing the trial court.

After the General Assembly created a new Metropolitan Water and Sewage District and then immediately transferred Asheville’s water system to that district in May 2013 — without the city’s consent and without compensation — Asheville challenged the transfer as unconstitutional.

In arguments before Superior Court Judge Howard Manning, the city argued that the transfer violated provisions of the state constitution prohibiting the General Assembly from enacting certain types of local laws; violated the “law of the land ” clause because the law singled out Asheville over other municipalities for no rational reason; and exceeded the State’s authority to take property outright or without paying just compensation.

Cities across the state and the League of Municipalities agreed with Asheville, contending that the state was treading on dangerous ground when it comes to concepts of local rule.

Manning agreed with the city in an opinion issued in June 2014, but the three-judge panel, which included Court of Appeals judges Chris Dillon, Rick Elmore and Ann Marie Calabria, disagreed and rejected each of the city’s arguments.

Read the full Court of Appeals opinion here.

For more on the case, read here.


The 4th U.S. Circuit Court of Appeals in Richmond will take a second look at alleged discriminatory policing in Alamance County, after the Justice Department filed its notice of appeal of U.S. District Judge Thomas Schroeder’s August decision dismissing such claims against Sheriff Terry Johnson.

In a lawsuit filed in 2012, DOJ alleged that Johnson and his office had engaged in a number of discriminatory practices in violation of the Fourth and Fourteenth Amendments, including targeting Latino residents for investigation, traffic stops, arrests, seizures, and other enforcement actions.

At the trial earlier this year, experts testified that Johnson’s deputies stopped Latino drivers up to 10 times more than non-Latino drivers along major Alamance County highways.

According to the ACLU of North Carolina:

Witnesses also testified about numerous incidents in which Johnson and other ACSO employees expressed prejudice against Latino residents, such as Johnson allegedly ordering deputies to “bring me Mexicans,” “put heat on” predominantly Latinos neighborhoods, and “go out there and get me some of those taco eaters.” Deputies were also accused of sharing links to what the Associated Press described as “a bloody video game where players shoot people entering the country illegally, including children and pregnant women.”

In his decision, Schroeder found that the government had failed to introduce any evidence of individuals who were deprived of their constitutional rights and relied instead upon “vague, isolated statements attributed to Sheriff Johnson.” He added that nobody testified that any ACSO employee carried out any improper directive or otherwise violated any individual’s constitutional rights.

“Indeed, all witnesses, including those called by the Government, denied that they ever did or knew any ACSO officer who did,” Schroeder wrote.

The judge also found that statistical analysis offered by the government was unreliable and not persuasive, “failing to sufficiently compare ACSO’s treatment of Hispanics to others who were similarly situated.”

For more on the case, read the story earlier this summer by Policy Watch’s Sarah Ovaska and this post on the filing of the complaint.



Death penaltyIt’s hard to follow the death penalty case of Richard Glossip, the latest inmate headed to execution by the state of Oklahoma, without wondering if his prosecution, conviction and, if it happens, death by lethal injection could have been bungled any more than has already happened.

Glossip, who had no arrest record and no history of violence, was sentenced to death for a murder he didn’t commit. His conviction was based upon testimony from the actual murderer, Justin Sneed, who’d bludgeoned the victim with a bat.  In exchange for a life sentence, Sneed testified that Glossip made him do it.

Oklahoma’s Court of Criminal Appeals overturned Glossip’s first conviction because his lawyer was inept, and the case against him grew weaker by the day afterwards.

As related by Lincoln Caplan in this New Yorker piece, the prosecution then agreed that no physical evidence linked Glossip to the crime scene. Nonetheless, he was convicted and sentenced to death a second time based upon a different factual account given by Sneed — one of eight different accounts he has told, according to Glossip’s lawyers.

After Oklahoma botched the execution of another death row inmate last year through the use of a three-drug cocktail, the U.S. Supreme Court stayed Glossip’s scheduled execution while the justices considered a challenge to the use of those drugs.

The high court then sustained the use of that cocktail in June, holding in a 5-4 opinion  that Glossip’s attorneys had failed to identify any alternative drug that the state could use.

Attempts at a stay based upon evidence showing innocence, including to the U.S. Supreme Court — which issued a denial over a dissent by Justice Stephen Breyer — proved fruitless, and Glossip was set for execution late yesterday.

At the last minute, though, Oklahoma’s governor issued a stay based upon yet another snafu:  the state had the wrong drug.

All of which leads to this question:  At what point should the state pull back and reconsider whether the death penalty is deserving in a case?

More importantly, at what point does the U.S. Supreme Court say enough is enough?

Caplan argues in his piece that if an abolition of the death penalty by the high court comes soon, Glossip might just be the reason:

It provides a case study in the unreliability of the application of the death sentence. Glossip’s current lawyers have raised serious doubts about his guilt, which make his conviction dubious and his death sentence unjust. His counsel in his first trial was reprehensibly bad. His counsel in his second trial exceeded the very low standard for ineffective counsel, but did a poor cross-examination of Sneed, the main witness against Glossip. From the decision to charge Glossip with a capital crime to some unsavory tactical moves in the second trial, the prosecution was overzealous and may have crossed the line into misconduct.

As Caplan notes, four of the justices are already there, including Breyer, who in his dissent in the June Glossip opinion openly invited a constitutional challenge to the death penalty.

And some experts now suggest that Justice Anthony Kennedy may be ready to cross over, in light of recent statements by Pope Francis that echo Kennedy’s own words in a 2014  opinion overturning the death sentence of an intellectually-disabled Florida man: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”


Courts in crisisBack in March, Chief Justice Mark Martin stood before state lawmakers — at their invitation — and told them it was time to step up court finding.

“Even before the start of the Great Recession, in 2007, North Carolina ranked 49th out of 50 states in terms of per capita spending on the judicial branch,” Martin said. “Five years later, in 2012, we ranked 45th out of the 50 states using the same source data as corroborated by the highly-respected National Center for State Courts.”

It was a big ask.

“I’m asking for $30 million, because we need $30 million,” Chief Justice Mark Martin told WRAL at the time, saying that that was the bare minimum needed to fund the judicial branch.

Much of that, he added, needed to go towards updating the court’s antiquated technology.

High ball – low ball negotiations seemingly followed at the General Assembly, leaving the courts — should the latest budget proposal become law — with a little something in each of the judicial funding categories, but nowhere near what’s required to fully fund them.

Yes, the courts may now be able to avoid the embarrassment of being unable to pay jury members or court-required interpreters.

But bringing the state’s judicial system into the digital age?

That’s not going to happen quickly.

And filling the 536 court positions the National Center for State Courts says North Carolina needs to meet workload requirements?

That’s not happening either.

Aside from the one-time state employee $750 bonus that court staff will get, and step pay raises for magistrates and assistant and deputy clerks, here’s how the court budget is shaking out otherwise, per the Conference Committee proposal released before midnight.

Technology Following the Chief Justice’s remarks, the House responded with a bang, proposing nearly $19 million in May to fund technology improvements as part of its proposed 2015-17 budget.  That was way more than the $5 million former Administrative Office of the Courts director John Smith requested for technology for in his February letter to state budget director Lee Roberts, and certainly more than the governor had in his proposed budget — which was nothing. But the Senate nixed that a month later, offering up little more than $567,000 in its budget for an “electronic compliance dismissal project.” What came out of the Conference Committee? For planning and implementation of the AOC’s  eCourts initiative (which includes  electronic filing, retrieval and processing of documents), lawmakers now propose  $1.8 million over the next two fiscal years ($3.6 million total), along with $567, 236 for the electronic compliance project.

Operating budget The operating budget, which funds constitutionally and legally mandated services (contract court reporters, non-expert witnesses, medical evidence, etc. ) plus equipment, travel supplies and maintenance needed to operate the court system, has been chronically underfunded. For that, the House proposed $12.4 million over two years.  That amount at least approximated what Judge Smith and the governor had requested ($15.9 million and $16 million respectively). The Senate responded though with $6.6 million, and under the latest proposal, the operating budget will get a $9.16 million boost.

Funds for interpreters, expert witnesses and juries The House, Senate & Conference Committee all agree on  $1.57 million over two years ($3.11 million).

Indigent Defense The House had proposed $3.4 million in each of two years to pay private appointed defense counsel. The Senate countered with $4.4 million each year, but called for the elimination of seven positions in the Capital Defender’s Office, which provides legal services for indigent defendants charged with capital crimes and possibly facing the death penalty — reducing funding there by $750,000. Under the Conference Committee proposal, $3.4 million would be allocated each year, with no reductions in funding or positions for the Capital Defender’s Office.

Elimination of judgeships. Each of the House, Senate and Conference Committee proposals calls for the elimination of special superior court judgeships and the funding of at least one new business court judge. Under the Conference Committee proposal, a total of six special superior court judgeships will be abolished as their terms expire (latest is December 2017), with one new business court judgeship funded instead.




vegan lunch for linksHere are a few good nuggets to get you over the work-week hump.

“The Senator Be Embezzling”  Jeff Smith was a rising star in Missouri politics after a strong but unsuccessful bid for a seat in the U.S. House of Representatives in 2004 — a run documented in the award-winning film  Can Mr. Smith Get to Washington Anymore?  Five years later though he found himself ensnared in a campaign finance investigation, pleaded guilty to felony obstruction of justice charges and landed in a federal penitentiary for a year.

Smith has since written about his experience in a new book, Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America’s Prison Crisis, an excerpt of which appears in Politico’s magazine here

Here’s how Smith describes what he learned:

This is the story of what I learned—about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me—and didn’t—for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders’ lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates.

“Harlem Lax”  Buzz Bissinger of  “Friday Night Lights” fame has this portrait of the Harlem Lacrosse and Leadership program run out of Frederick Douglas Academy and three other schools in New York, which is pulling underprivileged boys and girls off the gritty streets of Harlem, hooking them into what is usually deemed a sport of the wealthy and stressing school — not just sport — as the way to a better future.

Bissinger admits to having been asked by the Dick’s Sporting Goods Foundation to profile the program but quickly adds that his investment in the story went far beyond that.   Calling the program ” the single best school-based co-curricular program I have ever seen,” he said:

Ever since I wrote the book Friday Night Lights twenty-five years ago, I have immersed myself in the culture of sports in schools.

I have witnessed many programs and written about many more. I have been publicly outspoken about the winning-at-all cost mentality in which lip service is paid to academics and personal growth when it should be the other way around. I have become concerned about the professionalism of sports at younger and younger ages in which the lifelong lessons that sports uniquely provides-discipline, dedication, advancement through the competition and teamwork-take a back seat to the temporary won-lost record.

Then I spent a recent week in July observing the non-profit organization Harlem Lacrosse and Leadership in action. The concern I had about sports in schools, not the sports programs themselves but the misplaced emphasis, turned to excitement. To say I was blown away is an understatement.

Fans of “Show Me a Hero, HBO’s miniseries about desegregation efforts in Yonkers, N.Y., in the 1980s and 90s will enjoy this ProPublica interview with Lisa Belkin, the author of the book upon which the show was based. As noted, the book “Show Me a Hero: A Tale of Murder, Suicide, Race and Redemption,” has been re-released with a new epilogue.

Among the highlights of the interview:

  • You can’t integrate a city with just 200 units of housing. The point was never to fully change the makeup of Yonkers, but to disrupt the pattern of concentrating public housing into one area of the city. Integration, Belkin said, is more complicated. “But crime did not go up; property values did not plummet,” she said. “All the things that were feared didn’t happen.” (2:18)
  • Changing where you live doesn’t solve all problems. Relaying the fates of African-American and Latino residents portrayed in the story, Belkin said Carmen Reyes, a single mother central to the book and TV series, today has two adult children who are thriving professionally – but her youngest son has struggled with drugs and incarceration. “For Carmen it was a very mixed bag,” said Belkin. “But it was certainly a fresh start for everyone, and it was extraordinarily successful for mostly everyone.” (4:41)
  • The racial tensions of 1980s’ Yonkers were echoed throughout the making of the show. The TV series was filmed during the fallout from Ferguson and edited during the Baltimore protests, intersections not lost on the cast and crew. “The book is exactly the same, but time has given it a different meaning,” said Belkin. “In a way, the story’s been rediscovered because unfortunately so little has changed, and [Yonkers] looks like so many other places.” (16:29)