News

Justice Edmunds recuses himself from challenge to retention election law

State-Supreme-Court-400As noted on the order sheet released today by the state Supreme Court, Justice Bob Edmunds has recused himself from taking part in the appeal concerning the new Supreme Court judicial retention election law.

Under that law, enacted in October and effective immediately, sitting Supreme Court justices running for re-election would be subjected to an up-or-down vote rather than face off against a challenger.

Edmunds is the only justice up for re-election and would have been the first to run without a challenger.

Edmunds

Critics of the law have said that Republican lawmakers pushed for an early effective date so as to give Edmunds an advantage and help ensure continued Republican control on the state’s highest court.

A three-judge panel struck down the new law  as unconstitutional in early March.  That ruling is now on appeal before the Supreme Court, which will hear argument on an expedited base, set for April 13, 2015.

In the interim, the state Board of Elections has opened up the filing period for challengers to the seat held by Edmunds, scheduling a primary election on the same date as congressional district elections, June 7.

The absence of Edmunds in the case raises the specter of a 3-3 split by the remaining justices, thus leaving the 3-judge panel ruling intact.

For more on the issues in the case, click here.

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News

State Supreme Court denies early review of magistrates’ recusal law challenge

In an order today, the state Supreme Court denied a request by two state magistrates, who resigned from their jobs rather than perform same-sex marriages, to bypass the Court of Appeals and directly review a trial court order dismissing their lawsuit against the Administrative Office of the Courts for reappointment and damages.

The magistrates, Thomas Holland of Graham County and Gerald Breedlove of Swain County, alleged in their complaint that they resigned under duress after the AOC advised in an October 2014 memo that refusal to perform same-sex marriages would constitute “grounds for suspension or removal from office, as well as, potential criminal charges.” They contended that the AOC’s opinion regarding their employment obligations failed to accommodate their religious beliefs in violation of the state constitution and left them no option other than to step down.

(Both resignations predated the legislature’s enactment of the law allowing magistrates to opt-out of their marriage duties based upon a “sincerely held religious belief.” )

In the trial court, the state argued that the magistrates resigned voluntarily and not “under duress,” pointing out that they weren’t ever asked — let alone directed — to perform a same-sex marriage and that no one with the authority to remove them from office ever threatened to do so. In fact, that authority rests with the senior resident superior court judge in the county, not the AOC.

Wake County Presiding Superior Court Judge George B. Rollins, Jr. agreed with the state and, in an order dated September 19, 2015, dismissed the case.

The magistrates’ appeal comes at a time when same-sex couples in the state have challenged the recusal law in federal court, contending that it violates the Establishment Clause of the First Amendment by authorizing the expenditure of public funds to accomplish a religious purpose, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, by singling out gay and lesbian couples and denying them the fundamental right and dignity of marriage as recognized by the U.S. Supreme Court in June in Obergefell v. Hodges.

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News

Waffling on judicial nominees

The President had barely stepped away from the podium yesterday after nominating D.C. Circuit Court of Appeals Chief Judge Merrick Garland to the U.S. Supreme Court when Senate Republicans began falling in line with party leaders, saying there would be no hearing or vote on Garland nor any other Obama nominee during the remainder of this term.

That included North Carolina senators Richard Burr and Thom Tillis, who as Policy Watch’s Clayton Henkel pointed out in this post made their positions known on Facebook. (Tillis, by the way, serves on the Senate Judiciary Committee charged with holding hearings on judicial nominees and sending those approved to the floor for an up-or-down vote.)

As we’ve pointed out countless times before in connection with Burr’s role in enabling an embarrassing 10-year vacancy on the federal district court in eastern North Carolina, the senator had a quite different view on the political obstruction of judicial nominees during his earlier years representing the state.

During a 2005 stalemate over judges nominated to the federal courts, Sen. Richard Burr stood on the Senate floor and told his colleagues that regardless of what they thought of any particular nominee, they had an obligation to give each an up-or-down vote.

I believe if one of my colleagues objects to a particular nominee, it is certainly appropriate and fair for my colleague to vote against that nominee on the floor of the Senate.  But denying judicial nominees of both parties, who seek to serve their country, an up-or-down vote, simply is not fair.  It was certainly not the intention of our Founding Fathers when they designed and created this very institution.

That obligation becomes even more critical when it comes to nominees to the U.S. Supreme Court. Here’s more from Sen. Burr:

Obstructing votes on Presidential nominees threatens the future of our judicial system and the nature of the Supreme Court. You see, I am not sure that many Americans have stopped to think: Well, what happens if this is exercised for Supreme Court Justices? Because I believe in the next several years we will have one or two or possibly more Supreme Court nominees to consider.

Well, the Court still meets. If we are not able to produce a Justice out of this fine Hall, then they will meet with eight Justices. I have to believe there is an odd number of Justices for a very logical reason. It was so there would not be a tie.

On a 4-to-4 tie, what happens? Seldom have we asked the question. On a 4-to-4 tie in the Supreme Court, the lower court’s decision stands. That means all of a sudden the Supreme Court, our highest court, the Court we look to to be the best and brightest to interpret law and the Constitution, is insignificant in the process. It means that whatever that court of appeals was—the Fourth Circuit or the Ninth Circuit—whatever decision they came up with that somebody believed was wrong, and they appealed it to the Supreme Court, and the Supreme Court, on the merits of the case, heard it, would become the law of the land.

My colleagues on the other side argue that the reason this is so important is because a Federal judgeship is for life. Let me say to them today, if you exercise this as it relates to the Supreme Court of the United States, and you jeopardize that there may be a 4-to-4 tie, the result is not for the lifetime of the judge you did not seek, it is for the lifetime of this country because that is now the law of the land, that an appellate court, whether it is the Fourth or the Ninth—not the Supreme Court—that will be the ultimate determining factor as to what the law is that our children, our grandchildren, their children, their grandchildren will live by for their entirety.

News

Obama nominates Merrick Garland as next Supreme Court Justice

GarlandPresident Barack Obama’s choice to fill the open slot on the U.S. Supreme Court is 63-year-old Merrick Garland, currently Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.

The President made his announcement this morning from the Rose Garden, setting off a battle with Republicans in the U.S. Senate, most of whom have vowed to block any of Obama’s nominees, arguing that the selection to replace deceased Justice Antonin Scalia should be left to the next president.

Here’s Sen. Mike Lee, a Republican from Arizona who sits on the Senate Judiciary Committee just this morning:

lee

Garland is described as a centrist judge, likely selected by the President as the most confirmable by the Senate of those being vetted for the high court seat.

He has been battle-tested, having survived a long political fight on the road to confirmation in the mid-1990s, when Republican Senator Charles E. Grassley took the position that a vacancy should not be filled, according to the New York Times:

Judge Garland is often described as brilliant and, at 63, is somewhat aged for a Supreme Court nominee. He is two years older than Chief Justice John G. Roberts Jr., who has been with the court for more than 10 years. The two served together on the appeals court and are said to be friends.

Here’s more on Garland from Think Progress:

Chief Judge Merrick Garland of the DC Circuit is the sort of nominee that Obama and Senate Republicans might agree to elevate to the Supreme Court as a compromise, if compromise is actually possible with the current Senate majority. Garland, who President Clinton appointed to the DC Circuit in 1997, is far and away the oldest candidate among the four the White House is reportedly vetting — he’s 63. In nearly two decades on the bench, Garland has also built a fairly centrist record.

Garland’s resume is laden with the kind of credentials that make mere mortal attorneys droll with envy — including a clerkship for Supreme Court Justice William Brennan and a senior Justice Department job prior to Garland’s elevation to the bench. On most issues, moreover, is is likely that Garland would side with the Supreme Court’s liberal bloc in divided cases.

Nevertheless, there are a few areas where his instincts appear more conservative. In 2003, Garland joined an opinion holding that the federal judiciary lacks the authority, “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States,” effectively prohibiting Guantanamo Bay detainees from seeking relief in civilian courts. The Supreme Court reversed this decision a little over a year later in Rasul v. Bush. (Though, it is worth noting that legal experts disagree about whether the result Garland supported was compelled by then-existing precedents.)

Garland also appears to have relatively conservative instincts in criminal justice cases. According to a 2010 examination of Garland’s decision by SCOTUSBlog’s Thomas Goldstein, “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” as well as an additional seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent as a federal judge.

The next step toward Garland’s appointment should be hearings before the Judiciary Committee, but if Republicans there have their way, those hearings will be a long way off — if they happen at all.

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News

Appeals Court holds “Choose Life” license plates are government speech

chooselifeIn a 2-1 decision today, the 4th U.S. Circuit Court of Appeals reversed an earlier ruling and held that North Carolina’s “Choose Life” license plate constituted government speech not subject to First Amendment scrutiny.

The court had previously ruled in 2014 that the state’s offering of a “Choose Life” plate while rejecting an alternative pro-choice plate constituted unconstitutional viewpoint discrimination. That decision was premised upon a finding that specialty plates in North Carolina were a mix of government and private speech and thus implicated the First Amendment neutrality protections accorded to private speech.

The state then appealed that decision to the U.S. Supreme Court, where a similar Texas case was also pending.

The high court ruled last June in Walker v. Sons of Confederate Veterans that Texas specialty plates were simply government speech not subject to the First Amendment,  thus allowing that state to refuse the issuance of Confederate Veterans plates.

The Supreme Court then sent North Carolina’s case back to the Fourth Circuit for further review in light of the Texas decision.

Writing for the court, Chief Judge William B. Traxler, Jr. said:

The specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case. Accordingly, we now conclude that specialty license plates issued under North Carolina’s program amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees.

Circuit Judge James A. Wynn, Jr. dissented, chiding his colleagues for not standing by the circuit’s established “mixed speech” analysis, something he said the high court overlooked.

As he writes:

In Walker, the Supreme Court majority did not address, much less overrule, this Circuit’s common-sense recognition that speech can be “mixed”—i.e., that it can have elements of both government and private speech. Insisting otherwise is tantamount to “insisting that a mule must be either a horse or a donkey.”

I refuse to believe that with Walker, the Supreme Court meant to force us to choose that the mule in this case is either a horse or a donkey. Instead, Walker’s holding, when narrowly understood, does not lead to the conclusion that the North Carolina specialty plate speech at issue here constitutes pure government speech. On the contrary, based on the specifics of this case, it presents mixed speech—with private speech components that prohibit viewpoint discrimination.

The “Choose Life” plate is currently on the DMV’s Inactive Plate list.

You can, however, still purchase a Sons of Confederate Veterans plate.

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