Two state magistrates who resigned from their jobs rather than perform same-sex marriages, citing religious objections, have asked the state Supreme Court to bypass the Court of Appeals and directly review a trial court order dismissing their lawsuit against the Administrative Office of the Courts seeking 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 contend 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.


VoteYesterday the social media world was all abuzz over Ed Blum’s apparent contrition for the fall-out from his attack on voting rights, as consummated in his Shelby County v. Holder case.

Blum, you may recall, is on a one-man mission to gut racial classifications in this country and has been the force behind not only the Shelby County case but also Fisher v. University of Texas (affirmative action) and now apparently Evenwel v. Abbott (one person one vote).

In a wide-ranging profile of his endeavors posted by The Guardian, Blum professed concern over what states like North Carolina did to vitiate voting protections after Shelby County.

“I think about it a lot, I worry about it a lot. I agonise over this,” Blum told The Guardian. “It may be that one or two of the states that used to be covered by Section 5 has gone too far.”

Well today’s a new day and after his remarks made the rounds, Blum felt compelled to release this statement, sent to Rick Hasen at the Election Law Blog:

Just because I have concerns about some jurisdictions imposing voting requirements that discourage participation, it does not follow that I have regrets about any of the past or current cases I have helped file. I have no regrets. One of the problems giving interviews such as the one in the Guardian is that the complete answer to a question is often cut down by the author to make a slanted point.


Perhaps you remember this saga.

Near the end of 2005, U.S. District Judge Malcolm Howard stepped down from his seat on the federal bench in eastern North Carolina, moving to senior status and creating an opening for a new judge there.

Years passed and the state’s U.S. senators couldn’t seem to reach an agreement on a nominee for that slot to recommend to the President. In the meantime, Howard — along with two other judges on senior status, James C. Fox, now 86 and W. Earl Britt, 83 — shared his workload.

Then in 2009 the senators threw their support behind federal prosecutor Jennifer May-Parker, chief of the Appellate Division of the U.S. Attorney’s Office for the Eastern District in North Carolina, to fill Howard’s slot — one of over 80 district court seats then vacant in the federal judiciary.

If confirmed, May-Parker would have become the first black female federal judge in the history of the Eastern District.

But once President Obama nominated her in 2013, U.S. Sen. Richard Burr — who for years took his senate colleagues to task for holding up judicial nominations — inexplicably blocked the nomination by refusing to submit the “blue slip” evidencing his support, a critical step to moving a judicial candidate to a senate hearing.

May-Parker’s nomination has since lapsed, and Howard’s seat remains vacant.

Plenty of seats elsewhere have been filled, as have new vacancies that have arisen.

The number of district court openings deemed a “judicial emergency” — determined in part by how long a seat has been vacant — is now 32. All of those seats have been open for only a year or two — except for Howard’s.

The chart below shows just how far an outlier North Carolina has become:

nccourts-judicial-emergencies-2016-01-05 (2)

For more on the ongoing judicial vacancy in the Eastern District, read here, here and here.




In orders issued today, the state Supreme Court sent two Racial Justice Act cases back to the trial court for further review.

In State v. Robinson, the justices held that the trial court erred when it failed to give the state additional time to address a Michigan State statistical study submitted on behalf of Marcus Robinson.

Per the order:

Respondent’s study concerned the exercise of peremptory challenges in capital cases by prosecutors in Cumberland County, the former Second Judicial Division, and the State of North Carolina between 1990 and 2010. The breadth of respondent’s study placed petitioner in the position of defending the peremptory challenges that the State of North Carolina had exercised in capital prosecutions over a twenty-year period. Petitioner had very limited time, however, between the delivery of respondent’s study and the hearing date. Continuing this matter to give petitioner more time would have done no harm to respondent, whose remedy under the Act was a life sentence without the possibility of parole. Under these exceptional circumstances, fundamental fairness required that petitioner have an adequate opportunity to prepare for this unusual and complex proceeding.

The justices also today vacated the trial court’s decision in State v. Augustine — the second Racial Justice Act challenge  saying that the judge’s refusal to grant the state more time to respond to the Michigan State study “infected” his ruling in this subsequent case.

The Racial Justice Act, enacted in 2009, allowed death row inmates to seek a reduction in their sentence to life without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences.

At the time, a review of state Supreme Court decisions showed that the court rarely if ever sustained a challenge to the racial composition of a jury under Batson, and death penalty opponents hailed the passage of the Act as a necessary safeguard from continued racial bias in the judicial system.

From day one, though, prosecutors and other proponents set out to overturn the Act. In 2011, the state senate garnered enough votes for repeal but could not override Gov. Bev Perdue’s veto.

By 2012, the legislature managed by amendment to rein in significant provisions of the RJA, limiting the scope of statistical evidence upon which inmates could rely to prove their claims.

Most of the state’s 152 death row inmates filed motions for appropriate relief, seeking to have their sentences commuted under the Act, but only a few saw their cases move to trial and decision.

Marcus Robinson became the first to have his sentence reduced in April 2012, when Cumberland County Senior Resident Superior Court Judge Gregory Weeks, in a 167-page order, found that race was a significant factor in the imposition of the death penalty statewide as well as in Robinson’s own case.

On the heels of Robinson, death row inmates Tilmon Golphin, Christina Walters and Quintel Augustine asked Weeks to reduce their respective sentences.

But shortly before hearings began in July 2012 in those cases, the legislature amended the RJA to require more than just statistical evidence to prove a claim of racial bias.

The inmates sought to do that in the hearings that followed, and in an opinion sharply critical of the prosecution not only for its conduct during the underlying murder cases but also for continuing to delay RJA proceedings while lobbying for a repeal of the Act in the legislature, Weeks commuted each of their sentences to life without parole.

In his 210-page order, Weeks wrote: “This conclusion is based primarily on the words and deeds of the prosecutors involved in Defendants’ cases. In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making.”

That evidence included prosecutors’ notes discussing the race of potential jurors and “cheat sheets” used to offer up pretextual excuses for eliminating black jurors.

“Despite her testimony to the contrary, the evidence was overwhelming that this prosecutor relied upon a ‘cheat sheet’ of pat explanations to defeat challenges in numerous cases when her disproportionate and discriminatory strikes against African-American venire members were called into question,” Weeks said.

Both cases now will now return to the trial court in Cumberland County for reconsideration of the inmates’ requests to have their death sentences commuted to life without parole.



Redistricting-Round3-400In a 4-3 ruling released today, the state Supreme Court once again upheld the congressional and legislative voting districts created by the General Assembly in 2011.

The justices had already upheld the plan in a 2014 decision but revisited the issues after a remand by the U.S. Supreme Court.

The question this time around was whether the 2011 plan survived constitutional scrutiny under the high court’s decision last term in Alabama Legislative Black Caucus v. Alabama, holding that lawmakers should not apply mechanical racial formulas when drawing voting lines.

In response, a majority of the state justices said yes, as indicated by Justice Paul Newby in his opinion for the court:

We agree with the unanimous three-judge panel that the General Assembly’s enacted plans do not violate plaintiffs’ constitutional rights. We hold that the enacted House and Senate plans, as well as the federal Congressional plan, satisfy state and federal constitutional and statutory requirements and, specifically, that the three-judge panel’s decision fully complies with the Supreme Court’s decision in Alabama.

Republican state lawmakers in Alabama and North Carolina approached their 2010 redistricting in similar fashion – not surprising given that they operated with guidance and funding from party operatives in Washington.

Both drew voting maps based upon statistical formulas they claimed were necessary to avoid Voting Rights Act liability, with little regard to what had been happening on the ground in terms of minority political control.

But that “on the ground” analysis is what’s called for, as Supreme Court Justice Stephen Breyer noted when writing for the majority in the Alabama case. Read More