News

North Carolina doesn’t have a Confederate battle flag flying over its state capitol, but it does have a specialty license plate featuring that  flag, issued by the state on behalf of the Sons of Confederate Veterans.

It’s just one of many vanity plates offered by the Department of Motor Vehicles “allowing citizens with common interests to promote themselves and/or their causes.”

Virginia has a similar plate, and today — with a nod to the horrific shootings of nine black churchgoers at the Emanuel AME Church in Charleston, S.C. and the ensuing actions of South Carolina’s Gov. Nikki Haley in ordering the removal of the Confederate flag from the state’s Capitol grounds — the governor of Virginia ordered that flag removed from state license plates.

“Although the battle flag is not flown here on Capitol Square, it has been the subject of considerable controversy, and it divides many of our people,” Governor Terry McAuliffe said. “Even its display on state-issued license tags is, in my view, unnecessarily divisive and hurtful to too many of our people.”

McAuliffe now joins a growing group of state officials recognizing the divisiveness of the Confederate flag, even if offered as an historical symbol to state residents choosing to display it.

He can’t stop private citizens from waving that  flag, but he sure can stop the state from letting it appear on a state license plate.

That’s all the more important now, given the U.S. Supreme Court’s 5-4 decision last week in Walker v. Texas Sons of Confederate Veterans, holding that specialty license plates are government speech.

(Notably, in that case, Texas refused to allow the Confederate Veterans plate, finding it too offensive.)

“As a general matter,” Justice Stephen Breyer wrote, “when the government speaks it is entitled to promote a program, to espouse a policy or to take a position.”

What that means here, of course, is that the Confederate flag on a North Carolina license plate is no longer the message of a private group.

It’s now the message of the state of North Carolina.

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Update:  Several media outlets are now reporting that the governor will act to stop the issuance of state license plates bearing the Confederate battle flag emblem.  “The time is right to change this policy due to the recent Supreme Court ruling and the tragedy in Charleston,”  Josh Ellis, spokesman for Gov. Pat McCrory, said in an email to WRAL.

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News

Good news for the courts came last month when the House announced a badly-needed $18 million infusion to bring the state’s judicial system into the digital age, as part of its proposed 2015-17 budget.

But bad news followed yesterday, when the Senate released a proposed budget that provides virtually no funding for court technology, with just $567,000 set aside for an “electronic compliance dismissal project.”

That might come as a bit of a shock to Chief Justice Mark Martin, who in a March speech asked the General Assembly to step up its court funding, in part to implement a statewide electronic filing system.

“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 at the time. “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.”

Among the other highlights from the Senate budget affecting justice and judicial issues:

  • A proposed 19 percent cut to the Capital Defender’s Office, which provides legal services for indigent defendants charged with capital crimes and possibly facing the death penalty. The budget calls for the elimination of seven positions, including four attorneys.  “We are concerned that we will lose experienced attorneys who are currently representing defendants facing the most serious cases, and that this loss will not generate any real savings in money,” Thomas Maher, Executive Director of the Office of Indigent Defense Services, said in an email.
  • Funds for interpreters, expert witness and juries in the same amount as the House ($1.5 million per year), but significantly less for operating costs and legal services. The House broke out funds for legal services and funds for the operating budget into two categories — with a combined $12.4 million set aside for the next two years. The Senate merged those two categories and set aside a total of only $6.6 million for the same period.
  • Elimination of three special superior court judgeships. Presumably these are the positions already phased out in the prior budget — and not additional cuts — and appear in the budget solely to show the funds recaptured.
  • Step pay raises for state troopers, correctional officers, assistant and deputy clerks and magistrates and an $18 million adjustment to the workers’ compensation reserve.

Read more about the General Assembly’s  continued underfunding of the state’s judicial system in our “Courts in Crisis” section, here.

News

The state Department of Transportation announced this afternoon that it had reached an agreement with environmental groups allowing the agency to replace the aging Herbert C. Bonner Bridge over the Oregon Inlet on the Outer Banks with a new parallel bridge. Under the agreement, NCDOT will also consider options that would move vulnerable portions of N.C. Highway 12 out of the southern half of Pea Island National Wildlife Refuge and into Pamlico Sound.

“We appreciate the efforts of all parties to agree on a viable solution that best serves the people and interests of North Carolina,” NCDOT Secretary Tony Tata said in a statement. “The settlement agreement will allow NCDOT to provide a safe and reliable bridge for thousands of residents who rely on this lifeline to get to work, school, and healthcare and for millions of visitors who travel to the Outer Banks every year.”

“We are pleased that NCDOT and its partner agencies will consider additional options for N.C. 12 that will provide safe, reliable transportation by avoiding the areas where erosion and washouts shut down the road in its current location.  This is a win-win for the Refuge and everyone who relies on N.C. 12,” Julie Youngman, a senior attorney with the Southern Environmental Law Center who represented the conservation groups added.

Here’s more from the DOT:

Under the settlement agreement, after certain tasks are complete including ceasing work on a 2.4-mile bridge within the Refuge, the conservation groups will dismiss both federal and State Bonner Bridge-related lawsuits.  NCDOT will move forward with construction of a new bridge parallel to the existing Bonner Bridge and will study options for Pamlico Sound structures to address the Mirlo Beach area and the Pea Island inlet created by Hurricane Irene.  NCDOT will complete this entire process collaboratively with the Merger Team, composed of state and federal resource and regulatory agencies. During the study period, NCDOT will implement interim measures on Pea Island to provide safe and reliable transportation through this area. In September 2014, NCDOT suspended construction on a permanent Pea Island Bridge as part of the settlement process.

The groups and the DOT had long been battling in court over the fate of the bridge.  Most recently the 4th U.S. Circuit Court of Appeals in Richmond sent the lawsuit back to the district court for further review, finding that that lower court had failed to consider requirements relating to the protection of wildlife refuge land — here, the Pea Island National Wildlife Refuge on Hatteras Island, through which the battered NC-12 runs – when determining if the project complied federal law.

Read the full settlement agreement here.

News

In an order released this morning, the U.S. Supreme Court refused, over a dissent by Justice Antonin Scalia,  to review a ruling striking down North Carolina’s 2011 law requiring doctors to give women a narrated ultrasound before undergoing an abortion. The Court’s decision means the law, which had been challenged by the American Civil Liberties Union and other groups, cannot go into effect.

“North Carolinians should take comfort in knowing that this intrusive and unconstitutional law, which placed the ideological agenda of politicians above a doctor’s ability to provide a patient with the specific care she needs, will never go into effect,” Sarah Preston, acting Executive Director of the ACLU of North Carolina, said in a statement. “We’re very glad the courts have recognized that politicians have no business interfering in personal medical decisions that should be left to a woman and her doctor.”

Over a veto by then-Governor Bev Perdue, state lawmakers enacted the Woman’s Right to Know Act in July 2011. The law requires in relevant part that a doctor perform an ultrasound on a patient – regardless of consent — at least four hours before an abortion, showing her the images and describing what is seen.

As described by U.S. District Judge Catherine Eagles in her January 2014 decision overturning the law:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

The patient need not view the images nor listen to the description by the doctor; she can look away or shield her eyes and ask for ear plugs or some other device to block her hearing.

The law provides no exceptions for patients who are victims of rape or incest, who are minors or who may be carrying a fetus with severe abnormalities or which is not otherwise viable.

On appeal, the 4th U.S. Circuit Court of Appeals agreed with Eagles and blocked enforcement of the  law, finding that it violated the First Amendment rights of physicians who provide abortions.

For more on the case and the appeal at the Fourth Circuit, read here and here.

 

News

Screen Shot 2015-06-05 at 9.29.46 AMLegalZoom, the online provider of legal forms and other services, has filed a federal antitrust lawsuit against the North Carolina State Bar for $10.5 million, contending that the bar is unlawfully prohibiting the company from providing prepaid legal services in the state.

(The state bar is the state agency responsible for regulating the practice of law in North Carolina — often confused with the NC Bar Association, which is the voluntary organization composed of lawyers, paralegals and law students.)

The precedent for the lawsuit?

The recent teeth-whitening case decided by the U.S. Supreme Court in February, NC Board of Dental Examiners v. FTC, in which the high court held that the dental board did not have antitrust immunity and could be sued for anticompetitive practices.

Writing for the court in that case, Justice Anthony Kennedy found that because the Board was comprised mostly of dentists practicing and competing in the teeth-whitening market with non-dentists, it could only invoke state-action antitrust immunity if the state actively supervised its actions concerning that service.

The ABA Journal summarizes the LegalZoom lawsuit here:

According to the suit, the state legislature in 1991 removed the bar from a role in approving legal services plans but gave it the “ministerial task” of keeping a registration list of plans sold in the state.

Yet the bar adopted a restrictive definition of what constitutes a prepaid legal services plan and refused to accept for registration plans that did not meet the definition, the suit alleges. The bar says such plans must be paid for in advance of any immediate need and any legal services provided must be provided by lawyers licensed in the state, the suit says.

LegalZoom and the state bar have been battling in court for years over the types of services it can offer to North Carolina residents, dating back to 2008, when the bar sent the company a cease-and-desist letter.

Read the complaint here.