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Last week’s unanimous Fourth Circuit ruling in King v. Burwell, upholding the availability of Affordable Care Act tax credits to health insurance purchasers on both state exchanges and the federal exchange, may be heading to the U.S. Supreme Court.

Yesterday, attorneys for challengers to that ruling filed a petition asking the high court to take the case next term.

Read the full petition here.

 

 

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The notion that the state should have a three-judge panel at the trial court level to decide constitutional challenges to state laws was the brainchild of the Senate, appearing in its budget back in May.

Although the House had no similar language in its draft budget, the provision is back in the latest (and supposed final) budget which the Senate approved twice during the last 24 hours and is now before the members of the House.

If the House passes the budget with the three-judge panel provision included and the governor signs it into law, North Carolina will be the one and only state in the country with such a provision, as Bill Raftery at Gavel to Gavel reported here.

“No state provides for a mandatory three judge panel at the trial level for constitutional challenges to state laws,” he said.

We wrote back in early June that the impaneling of three-judge trial courts to decide any and all constitutional challenges to state laws was just a bad idea — one that had been rejected elsewhere as often unworkable and unnecessary.

And judges at the appellate level disliked them because of the provision — as is included in the current proposal here — making decisions from the panels directly appealable to the Supreme Court.

As one federal judge in western North Carolina wrote in 1995, when referring to similar panels at the federal level:

The legislative history of the repealing bill shows a thorough dissatisfaction with the operation of three-judge courts, finding the procedure to be confusing and inefficient. The Senate report states that “three-judge court procedure has recently been termed by one scholar, `the single worst feature in the Federal judicial system as we have it today.’ It has imposed a burden on the Federal courts and has provided a constant source of uncertainty and procedural pitfalls for litigants. 

Here’s more from our earlier post :

Judges didn’t like them. And it became increasingly difficult to empanel three judges.

“Consuming the energies of three judges to conduct one trial is prima facie an egregious waste of resources,” David Currie, then a professor at University of Chicago Law School wrote years before the repeal.

Supreme Court justices didn’t appreciate lawmakers interfering with the Court’s long-held discretionary right to select the cases worthy of review. And they felt inundated by the number of appeals they were required to hear because of the automatic direct appeal.

“Members of the court were very vocal about it in the 60s and 70s,” Solimine said. “Warren Burger and others were just openly hostile to the three-judge courts because of the mandatory appeal aspect and they unabashedly urge Congress to modify the statute.”

And many people thought the three-judge courts had become unnecessary, he added. The single-judge district court and ordinary avenues of appeal worked fine for most constitutional challenges.

For litigants, working their cases through the courts proved more troubling.

Upon the filing of a lawsuit, a single district court judge determined whether the case was properly in federal court and whether it otherwise fit the parameters for assignment to a three-judge panel.

As pointed out by scholars, those initial rulings set in motion an appellate review process that played out in a number of confusing ways and led at times to inconsistent results.

What if the initial judge was mistaken? What if similar judges across the country were ruling differently? And where did an appeal of those initial rulings go – to the Circuit Court of Appeals, to a three-judge panel, or directly to the U.S. Supreme Court?

Similar problems exist with the proposed North Carolina law, which will require a judge to determine initially whether a case presents “a challenge to the validity of an act of the General Assembly on its face” before any transfer to a three-judge panel.

That may be a larger number of cases than the senators anticipate, given that, as the state bar noted in its statement opposing provisions of the senate budget, constitutional challenges often arise in suits between private citizens too, not just in direct lawsuits against the state.

How will “on its face” be determined? Does that mean simply any case that crosses the clerk’s desk alleging that a state law is unconstitutional? Or does that mean the more nuanced constitutional interpretation of a “facial” as opposed to an “as applied” challenge?

Solimine suspects even that initial determination might breed confusion and litigation.

“If it does pass, North Carolina’s bill will probably suffer some of the same problems as occurred in the federal system,” he said, “leading some people to ask, as they did with that system, “Is this really necessary?”

 

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Provisions in the latest budget explain the payment process for the 780 eugenics claims submitted to the Office for Justice for Sterilization Victims by the June 30 deadline, and set some hard deadlines for those whose claims have been received by the deadline but are missing information.

(Despite a request by the state NAACP, the General Assembly did not extend the June 30 deadline,)

As of July 17, according to the Office,  500 of those claims had been forwarded to the NC Industrial Commission for determination of eligibility and the remaining logged as received by the deadline but either missing information or requiring additional research.

Those with missing information have until September 23, 2014 to submit what’s required.

Also per the budget, disbursements from the fund will begin with an initial payment by October 31, 2014 to those determined, as of October 1, 2014, to be “qualified recipients.”   The amount of that payment will be determined by dividing the number of qualified and pending claimants by $10 million.

Those determined to be qualified after that date will receive an initial payment within 60 days of determination.

Presumably on the theory that some of the pending claims may ultimately not be qualified, there will be a second round of payments made from what’s left in the fund.  That payment will be made 90 days from the date of the last appeal.

By September 30, 2014, all remaining claim forms will be submitted to the Industrial  Commission for review and  disposition.

The budget provisions also clarify that payments from the fund are NOT to be split or otherwise used to compensate attorneys who may have helped victims with the filing of claims:

It is the public policy of this State that funds awarded for the compensation of sterilization victims under this Part may be used only for the purpose of benefiting victims and shall not be used to pay attorneys’ fees arising from representation at the Office, before the Commission, or on appeal. The General Assembly finds that qualified recipients have suffered a unique harm that calls for a unique remedy and that there are sufficient sources of assistance and pro bono legal representation available to protect their interests. Therefore, any agreement for the acceptance of attorneys’ fees is null and void unless counsel has sought and received an opinion from the North Carolina State Bar that the fee arrangement is reasonable under the Rules of Professional Conduct.

For more about the eugenics fund, read here.

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Here’s a quick look at how the compromise budget released last night affects the courts and justice system.

Funding for the Administrative Office of the Court  The proposed budget calls for a $2.9 million reduction of funding for the AOC, but specifies that positions not be eliminated in any district operating at less than 100 percent of recommended staffing levels per the current workload formula developed by the National Center for State Courts.   It also reduces the appropriation for AOC technology services by $500,000, leaving $15 million remaining there.

These are compromise numbers from previous budget drafts.  The Senate had proposed cutting technology funding to the courts by $3.7 million and the remaining AOC administrative appropriation by an additional $1.5 million. The House had called for a flat $4.95 million cut, without specifying where cuts should be made.

Cuts to Family Courts  In this latest version of the budget, Family Courts are left intact.

The initial House budget gutted Family Courts, eliminating $3 million in funding and 36 positions, a proposal in neither the Senate nor Governor’s budget. Those cuts were later reduced to just Family Court administrators, eliminating $962,910 and 11 positions. No cuts to Family Courts appear in the current proposal.

Legal Aid  The latest version contains no provisions for cutting or eliminating court fees that passed through the state bar to Legal Services, but does eliminate the $670,000 Access to Civil Justice grant. 

The Senate had previously proposed cutting the court fees passed through to Legal Services to the tune of $1.8 million. The text providing for these cuts did not appear in a subsequent  compromise draft of the budget (as of June 13).

Public Defender The appropriation for administrative costs at Indigent Defense Services is cut by $466,380.

Both the House and Senate cut funds for indigent defense administrative costs in previous budget versions — the House by $466,380, the Senate by $233,190 (including the elimination of the Public Defender Administrator).

State Bureau of Investigation/Crime Lab In the current version of the budget, SBI is transferred from Justice to Public Safety, but the Crime Lab stays put.

In an earlier version, the Senate also called for the transfer of the Crime Lab to Public Safety.

Three judge courts  Provisions making  substantive changes to the handling of constitutional challenges to state laws, requiring that all such cases be heard in Wake County by a panel of three judges selected from different parts of the state by the Chief Justice (similar to the process with redistricting challenges) have reappeared in the current budget.  Judgments in those cases will be directly appealable to the Supreme Court.

Those changes appeared in the initial Senate version but not in a later compromise draft of the budget (as of June 13).

For more on the initial Senate budget, read here.

For a further comparison of the Senate and House budgets, read here.

 

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It may be mid-summer, and the Outer Banks may evoke memories of beaches, lighthouses, and wild horses, but UNC journalist and educator Sara Peach reminds us in this must-read National Geographic multimedia essay (photos, videos and maps) that memories could be all that remain in a few short years.

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Among the scientists Peach interviewed is East Carolina coastal geologist Stanley Riggs, who contributed to a controversial report warning that “North Carolina could face 39 inches (1 meter) of sea-level rise by 2100, as glaciers melt and ocean waters warm and expand.”

As she describes, that report got a chilly reception from state lawmakers:

The report prompted a backlash from coastal developers and climate skeptics—and in 2012, from the state. Lawmakers in Raleigh considered a bill that would have prohibited state agencies from planning for accelerated sea-level rise.

Environmentalists were outraged, bloggers snickered, and even comedian Stephen Colbert weighed in: “If your science gives you a result you don’t like, pass a law saying the result is illegal,” he joked. “Problem solved.”

Eventually, the state settled on a watered-down version of the law: a four-year moratorium on sea-level regulations, and an order for a new scientific study of sea-level rise, due out in 2015. In May, a state commission asked the science panel to limit its next sea-level forecast to 30 years.

The irony of the whole argument, Riggs says, is that the coast as we know it is already vanishing. “Sea-level rise and storms are taking out eastern North Carolina today—not a hundred years from now. They’re doing it today,” he says.

For more on the problems with erosion on the Outer Banks and the related access issues, read here.