News

SCOTUS redistricting mapsOn tomorrow’s calendar of petitions for review by the U.S. Supreme Court is Dickson v. Rucho, the challenge to the state’s 2010 redistricting plan.

The groups and individuals who initially sued lawmakers in state court — contending that the plan constituted an unlawful racial gerrymander — filed papers in January asking the justices to review the state Supreme Court’s 2014 decision upholding the plan.

Since then, the nation’s highest court decided a similar case out of Alabama — applying a different analysis than that used by our state justices and sending that state’s plan back to the trial court for further review. (For more on the relationship between the Alabama and the North Carolina cases read here.)

The Court ruled that race predominated in an Alabama redistricting plan which moved black voters into majority-minority districts in order to prevent the percentage of minority voters from declining, and that such race-based redistricting must be strictly scrutinized.

Five days later, the court likewise sent a case raising similar issues regarding Virginia’s 3rd Congressional District, Cantor v. Personhuballah, back down for further review.

The challengers of the North Carolina plan — relying in part upon the analysis in the Alabama decision — contend that our state maps should also be strictly scrutinized and rejected as race-based gerrymanders.

Citing the Alabama opinion, they argue:

Certiorari must be granted in this case to end the use of irregularly shaped race-based election districts in North Carolina because “[r]acial gerrymandering strikes at the heart of our democratic process, undermining the electorate’s confidence in its government as representative of a cohesive body politic in which all citizens are equal before the law.”

They also point out that state lawmakers’ use of “mechanical racial targets” led to the drawing of districts that were “even more bizarrely shaped” than those examined by the justices in the Alabama case — as illustrated in the image above. (The enacted district as opposed to alternatives is in the bottom right corner.)

News

Duke EnergyFor a short time this past week, it looked like Duke Energy’s negotiated plea agreements resolving coal ash-related federal criminal charges might be coming apart.

Under the agreements, as detailed by the company in a February 20 filing with the Securities and Exchange Commission, Duke Energy’s North Carolina subsidiaries would plead guilty to four Clean Water Act misdemeanors related to violations at Duke Energy Progress’ H.F. Lee Steam Electric Plant, Cape Fear Steam Electric Plant and Asheville Steam Electric Generating Plant, and five Act misdemeanors related to violations at Duke Energy Carolinas’ Dan River Steam Station and Riverbend Steam Station.

Together the companies would pay a total of $102 million in fines and penalties and for community service and mitigation expenses and serve five years of probation – during which time they would establish environmental compliance plans subject to the oversight of a court-appointed monitor.

Approval  of the agreements had been set by the United States District Court for the Eastern District of North Carolina for this Thursday, April 16 and, by all appearances  —  at least from the court records — the parties were on pace with that schedule.

Until April 6.

That’s when David Buente, a high profile environmental defense attorney with Sidley & Austin in Washington D.C. appeared as a new attorney on the Duke Energy team.

A day later Duke Energy asked the court for more time, filing motions to continue the April 16 plea and sentencing to a later date.

The reasons for the request remained a mystery, though, as the court had placed the motions under seal.

A new attorney and a request for a delay for undisclosed reasons cast the plea deal in doubt — until this morning, when U.S. District Judge Malcolm Howard entertained Duke Energy’s request in open court.

As it turned out, there was indeed a hitch in consummating the plea deal, though not nearly as dramatic as the build-up appeared.

Duke Energy wanted more time to wrap up administrative negotiations with the U.S. Environmental Protection Agency relating to the companies’ criminal pleas.

Under the principal of “debarment,” entities pleading guilty to a crime can be prohibited from doing business with the government.

In this case, according to Duke Energy, once the involved companies enter guilty pleas the facilities subject to the agreements could be barred from doing future business with the government.

The companies can get around that by persuading the EPA that they’ve satisfied the issues giving rise to the plea agreements and convincing the agency to waive debarment.

The government objected to Duke Energy’s request for more time, saying that the company knew for some time that it had to wrestle with the EPA over the issue.

“What about the lights going out at places like Fort Bragg,” Judge Howard asked – a scenario he alluded to as having been painted in Duke Energy’s motion.

Debarment is prospective only, Assistant U.S. Attorney Banu Rangarajan pointed out, and Fort Bragg’s contract doesn’t expire until September.

Plus, she added, military officials have the authority to override debarment.

In the end, Howard agreed to reset the plea and sentencing hearing for the court’s own reasons, saying that conditions of probation and other details still needed to be finalized.

Practically speaking, debarment might not have any teeth as a possible sanction when it comes to a regulated utility like Duke Energy that operates as a monopoly.

But getting a waiver of debarment was important for Duke Energy customers, spokeswoman Paige Sheehan said after the hearing, pointing out that getting service otherwise would become much more complicated.

“This is about getting certainly for our customers,” she said.

When asked what ultimate impact a ruling on debarment would have on the plea agreement, Sheehan said none.

“We’re not walking away from this agreement.”

Per this order, the court reset the plea and sentencing hearing for 10:00 a.m. on May 14, 2015 at the federal courthouse in Greenville, N.C.

News

The nearly ten-year vacant federal district court slot in eastern North Carolina tops the list of “most ridiculously long judicial vacancies that the Senate hasn’t filled,” as highlighted by the Huffington Post this past weekend.

Here’s a look at the worst Senate offenders when it comes to not filling long-vacant judgeships in their home states.

Sen. Richard Burr (R-N.C.)

There’s a seat on U.S. District Court for the Eastern District of North Carolina that’s been empty for 3,387 days. That’s more than nine years, and it has no nominee.

Burr avoided questions from The Huffington Post last year about why he was blocking a previous nominee for the slot, Jennifer May-Parker. His obstruction of May-Parker was particularly puzzling, given that he previously recommended her to Obama.

A Burr spokeswoman did not respond to a request for comment on the hold-up for filling the seat, and on whether Burr plans to recommend a nominee soon. A request for comment also was not returned from Burr’s home-state counterpart, freshman Sen. Thom Tillis (R).

Of course none of that is news to court watchers here, many of whom continue to scratch their heads as to why U.S. Senator Richard Burr refused last year to support President Obama’s nominee, Jennifer May-Parker, after initially offering his approval.

Particularly disconcerting is the senator’s apparent refusal to heed his own words uttered  back in 2005, when he told his colleagues that “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.”

With no new nominee in the hopper, the Eastern District — which is also close to the top of judicial districts having the most residents per judgeship — will continue to trudge along with a caseload being handled by three active sitting judges with the part-time help of three judges on senior status — the youngest of whom is 75.

News

In case you missed it, the Wall Street Journal weighed in on Tuesday on the growing backlog of civil cases in federal courts across the country, due mostly to more criminal cases and fewer judges.

That’s a topic Policy Watch has written about frequently — especially as it relates to North Carolina’s Eastern District, where a judgeship has gone unfilled for close to ten years.

As we pointed out recently:

Fewer judges handling rising caseloads means that it’s taking longer for cases, especially civil ones, to get to trial. Data collected by the federal courts show that it now takes 63 percent longer for a civil case to get to trial. In 1993 it took 16 months; in 2013, 23 months.

Filing-changes

Numbers from the Eastern District fall in line with this trend. For the year ending September 2014, it took an average of 27 months from filing for a civil case to get to trial.

But there’s another reason why the state’s U.S. Senators should act with a sense of urgency to get the Eastern District vacancy filled and perhaps also seek another judgeship for that court: The number of judges there hasn’t kept up with population growth in the region.

According to population data analyzed by the Journal and charted in its print edition (subscription required for online), North Carolina’s Eastern District is second only to California’s Eastern District in terms of number of residents per judgeship.

News

A three-judge panel ruled this afternoon that state lawmakers exceeded their authority when enacting laws empowering themselves to make appointments to the state coal ash cleanup and fracking commissions.

The ruling, coming from a panel composed of two Republican judges and one Democrat — as noted below by the News & Observer’s Craig Jarvis — is a victory for Gov. Pat McCrory, who filed suit alleging infringement upon his executive authority.

Jarvis

“This historic and unanimous ruling respects and restores the separation of powers,” the governor said in a statement. “I’m proud to stand up for our Constitution and the citizens of North Carolina.  I’d like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort to protect the principles of our state.”

In response to the governor’s claims, lawmakers argued that McCrory lacked standing to bring the lawsuit and that he had waived his right to bring the challenge when he failed to veto the laws and  thereafter appointed some members to the coal ash commission.

The judges called the lawmakers’ arguments “borderline specious” and said that the governor’s objections were “indisputably clear.”

“The Legislature brushed the objections aside like a knife through hot butter,” they wrote.

“There was no requirement or need to veto the legislation when the Legislature held a veto proof majority in both houses. The law does not require a party to do a vain act.”

Referring to the lawmakers’ actions, the panel held:

[T]he statutes creating these commissions, enacted by the Legislature, provide for legislative appointment of some of the members, thereby constituting an impermissible commingling of the legislative power and executive power and an impermissible encroachment by the legislative branch of government on the executive branch of government in violation of Section 6 of Article I of the North Carolina Constitution that provides: “The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.”