News

Supreme CourtThe state Supreme Court today bypassed the Court of Appeals and took five controversial cases for direct review, exercising its rarely-used discretion and raising eyebrows over the timing, with contentious partisan elections soon getting underway.

The issues raised in the cases — school vouchers, coal ash, class certification — are hot buttons, and some of the parties involved have deep-pockets — including Duke Energy and U.S. Tobacco Cooperative

The high court took those cases despite having yet to render opinions in several high-profile cases — including the redistricting case, which has been pending since argument in January, and two cases concerning the Racial Justice Act, pending since argument in April.

Here are the cases:

Hart v. North Carolina:  This is the appeal of Superior Court Judge Robert Hobgood’s August ruling that the state’s newly-enacted school voucher program was unconstitutional because it:

1) appropriates to private schools grades K-12, by use of funds which apparently have gone to the university system budget but which should be used exclusively for establishing and maintaining the uniform system of free public schools;

2) appropriates education funds in a manner that does not accomplish a public purpose;

3) appropriates educational funds outside the supervision and administration of the state board of education;

4) creates a non-uniform system of education;

5) appropriates taxpayer funds to educational institutions that have no standards, curriculum and requirements for teachers and principals to be certified;

6) fails to guard and maintain the rights of the people who privilege the education by siphoning money from the public schools in favor of private schools; and

7) allows funding of non-public schools that discriminate on account of religion.

The case had just gotten underway in the Court of Appeals before the Supreme Court’s order today.

Cape Fear River Watch v. N.C. Environmental Management Commission:  This is Duke Energy’s appeal of Superior Court Judge Paul Ridgeway’s March ruling requiring the company to immediately eliminate the source of groundwater contamination at its coal ash pits — in advance of any clean-up plans it might later adopt.  In its opening brief in the Court of Appeals, Duke Energy argues that the Coal Ash Management Act passed by the General Assembly in August overruled the lower court’s decision.

Fisher v. Flue-Cured Tobacco Cooperative Stabilization (U.S. Tobacco Cooperative): This is an appeal of the certification of a class comprised of some 800,000 past and present tobacco farmers (per U.S. Tobacco Co-op’s brief) claiming to be entitled to and seeking payment from a $340 million reserve fund held and maintained by the cooperative.

Arnesen v. Rivers Edge Golf Club: Five cases are consolidated in this appeal, in which purchasers of vacant lots in Brunswick County sued the developer, mortgage broker, appraisers, attorneys, and BBT Bank, alleging a scheme to sell the lots at artificially inflated prices through “high-pressure, misleading sales tactics, fruadulent appraisals, unscrupulous lending practice and other conduct.”  Purchasers of the lots are appealing orders from the Business Court dismissing certain claims and defendants.

Cubbage v. N.C. State University Endowment Fund: This case concerns the pending sale of the Hofmann State Forest by the N.C. State Endowment Fund, which plaintiffs say was negotiated in secret and failed to comply with the N.C. Environmental Policy Act because the fund never obtained an Environmental Impact Statement. Wake County Superior Court Judge Shannon Joseph dismissed the case last November.

News

As reported, and just in time for tonight’s U.S. Senate debate between state speaker Thom Tillis and U.S. Senator Kay Hagan, the speaker and his counterpart in the state senate President Phil Berger have moved to intervene in two of the lawsuits challenging North Carolina’s ban on same-sex marriage.

The brief filed in support of their motion is here.

News

Voter ID

There will be no same-day registration and out-of-precinct provisional ballots will not be counted during the upcoming election, as the U.S. Supreme Court has stayed the Fourth Circuit order reinstating those voting provisions.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented from the court’s opinion:

The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based reasoned judgment.

The court’s order is here.

As Justin Levitt notes at the Election Law Blog, “The order isn’t a permanent reversal — it’s a stay awaiting the disposition of a petition for certiorari, if one is filed. But it’s enough to put the state’s law back in effect this November.”

News

Nuns tour 4It’s now been three days since the U.S. Supreme Court received the briefing it requested from the parties in the state’s voting rights challenge. And while attorneys have continued to advise the justices on activity here, there’s been no ruling from the high court on the state’s emergency application.

What’s going on?

Election law expert Rick Hasen lays out a few scenarios here.

1. Someone is dissenting, or at least writing something to explain the decision.  In the Ohio case, issued last week, the vote was 5-4 but there was no explanation from either the (conservative) majority or the (liberal) dissenters. Someone may want to say something here, either objecting to or explaining what the Court is doing.

2. The Court decided it wants more information and decided to wait. Today the trial court held a status hearing in the case and, according to a just-filed letter from NC challengers, the state said it would be easy to implement the 4th Circuit’s order. The challengers promise a transcript and no doubt NC will object to this characterization.

3. The Court wants to decide the North Carolina and Wisconsin case together, or perhaps a dissenter wants to reference a potential inconsistent treatment of the Purcell delay issue in the two cases. That would mean waiting until the further briefing came in in the Wisconsin case.