News

marriage amendmentNearly six months and 32 recalcitrant magistrates later, three couples have sued the state in federal court, challenging the law that allows magistrates to refuse to perform marriages based upon a self-professed religious objection to same-sex marriage.

In the lawsuit, filed in Asheville and assigned to U.S. District Judge Max O. Cogburn, Jr., the couples allege that the law, passed in the spring as Senate Bill 2, 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. 

Cogburn also presided over the challenge to Amendment One filed by clergy in the spring of 2014, General Synod of the United Church of Christ v. Reisinger, and was the first federal judge in North Carolina to strike down the state ban after the ruling in Obergefell.

The plaintiffs in today’s lawsuit are Diane Ansley and Cathy McGaughey, a married couple and taxpayers in McDowell County who were also plaintiffs in the General Synod case; Carol Ann Person and Thomas Person, a married couple and taxpayers in Moore County denied the ability to marry in 1976 after two magistrates in Forsyth County claimed religious beliefs against interracial marriage; and Kelley Penn and Sonja Goodman, an engaged couple and taxpayers in Swain County who intend to marry this spring.

According to the Administrative Office of the Courts, 32 magistrates have opted out of performing marriages based upon religious objections as of October, including all four magistrates in McDowell County.

“Senate Bill 2 is unconstitutional and does not represent the values of inclusion on which North Carolina was built,”   Chris Sgro, executive director of Equality North Carolina, said in a statement.

“It targets same-sex couples directly for discrimination and in the process also restricts access to taxpayer-funded government services for all North Carolinians.”

Read the full complaint here.

###

News

Supreme courtIn record speed, the U.S. Supreme Court has ruled in the first of four redistricting cases currently on its October 2015 docket, holding in Shapiro v. McManus that, unless a single federal district court judge finds the complaint at issue “constitutionally insubstantial,” a redistricting lawsuit should be handled by a three-judge panel, as required under the Three-Judge Court Act.

“‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit,’”  Justice Antonin Scalia wrote for the court.

“And the adverbs were no mere throwaways;  the limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. Without expressing any view on the merits of petitioners’ claim, we believe it easily clears [this] low bar.”

Attorneys argued the case before the high court on November 4.

The full opinion is here.

For more on the background of  the McManus case, read this post by Bloomberg’s Kimberly Robinson.

For more on the redistricting cases at the high court, read here.

News

A three-judge panel presiding over the redistricting lawsuit in Greensboro has ruled that the case will move forward to trial in April while the 2016 elections cycle continues on schedule, with candidate filing opening on December 1 and primaries to take place in March.

The parties in Covington v. North Carolina — a lawsuit filed in May that challenges many of the same districts at issue in the state case pending once again in state Supreme Court (Dickson v. Rucho) —  appeared before  Fourth Circuit Judge James A. Wynn, Jr. and federal district court judges Thomas Schroeder and Catherine Eagles last Monday on requests for relief.

The parties contesting the voting maps had asked the court to stay all election proceedings in 25 challenged districts until a final decision on the merits of the case.

The state, on the other hand, had asked the court to put off all proceedings in the case while the state Supreme Court continued its review in the Dickson case.

The judges denied both requests.

As to the state’s request, the judges noted that generally federal courts have a duty to decide cases over which they have jurisdiction without regard to pending parallel state proceedings, and ruled that no facts had been established that warranted deviating from that rule.

And as to the redistricting challengers, the judges noted that although the plaintiffs may very well prevail on their claims at trial, courts do not take disrupting elections lightly. Here, plaintiffs challenged the constitutionality of a few dozen districts, while the 2016 election cycle includes contests for 170 Senate and House seats.  And as plaintiffs conceded, “for all practical purposes, enjoining filing for the challenged districts would have the collateral effect of delaying the election cycle for all Senate and House seats and likely result in primaries in July 2016 at the earliest.”

Read the court’s full order here.

News

Raleigh lawyer Sabra Faires and two voters filed a lawsuit today in Wake County Superior Court challenging a recently enacted law changing how state residents reelect state Supreme Court justices.

Instead of choosing between the incumbent and a challenger, voters now only have the right to approve or reject the sitting justice. Should the vote go against the incumbent, the governor would choose an interim justice who would sit for two years and then run for election.

The law was effective immediately in June and benefits conservative Justice Robert Edmunds, whose term is up in 2016.

According to the complaint filed today, Faires wants to challenge Edmunds in 2016 but cannot do so because of the retention law.

Faires and the two voters joining her in the complaint say that the retention law violates the state constitutional provision requiring that justices be elected and illegally changes the qualifications for the high court.

“North Carolina’s constitution says Supreme Court justices are to be elected, just as it says the governor is to be elected, legislators are to be elected, and sheriffs and many other officials are to be elected,” Faires said in a statement.

“If election of a Supreme Court justice means nothing more that a retention referendum, with no choice between candidates, then the General Assembly would be free to say that’s enough for all those other offices as well.”

Any change to the method of electing justices can only occur by way of a constitutional amendment, according to Michael Crowell, who represents Faires and the other plaintiffs.

“For the last 50 years every one of the 33 bills introduced in the legislature to change the method of selecting judges has been a constitutional amendment,” he said in a statement.

“For those who have worked for years to reform judicial selection, to come up with a better way to choose our judges, the 2015 law is a real setback. It taints the whole effort by trying to bypass the need for a statewide vote on amending the constitution.”

Because the lawsuit challenges the constitutionality of a state law, it will be heard by a three-judge panel selected by Chief Justice Mark Martin.

News

The state legislature has set aside $8 million to defend lawsuits challenging the litany of controversial laws passed by the Republican majority in recent years, according to the Associated Press.

The litigation list is long and includes several state and federal actions seeking a rejection of voting maps adopted in 2011 and a reversal of voting law changes enacted in 2013, as well as challenges to the state’s same-sex marriage ban, the private school voucher program and the “Choose Life” license plate offering.

Funds for litigation costs go to private counsel retained to represent state officials in court, typically the job of the Attorney General. In some instances though, Attorney General Roy Cooper has declined to represent the state in cases which his office has determined are indefensible.  For example, after the 4th U.S. Circuit Court of Appeals in Richmond ruled that a Virginia gay marriage ban violated the U.S. Constitution, Cooper stated that his office would no longer defend the similar North Carolina ban in court. It was time to stop fighting court battles the state could not win, he said at the time.

In other instances, Republican lawmakers have retained private counsel even while Cooper was likewise defending the state, voicing concerns that he wouldn’t adequately represent their interests.

The primary beneficiary of the General Assembly’s largess has been the Raleigh office of Ogletree Deakins Nash Smoak & Stewart, with attorneys from that firm representing state officials in several lawsuits, including the voting rights and redistricting cases. That’s the same firm that also advised Republican leaders during the drafting of the 2011 redistricting plan.

Outside bills since summer 2014 alone exceeded $3 million, according to the AP — $2.9 million of that incurred by Ogletree Deakins to defend the voting rights cases.

Those cases are far from over, as dispositive rulings from the federal district courts remain pending and appeals to the Fourth Circuit and the U.S. Supreme Court are likely to follow. The same is true for the redistricting cases in state and federal courts, and new lawsuits challenging other controversial laws are on the horizon.

As the AP points out, a challenge to the state’s “magistrate recusal” law, which allows magistrates to opt out of performing marriages based upon a “sincerely held religious objection” to gay marriage, could be filed in the coming months.

According to Roy Cooper’s office,  the Attorney General has defended state laws in at least 15 cases and didn’t need the help of costly outside counsel.

“Our office hasn’t requested that the General Assembly hire any of the private lawyers they’ve been paying, and we think it’s a waste of taxpayer dollars to pay outside lawyers to do the work we’re already doing,” Cooper’s spokesperson Noelle Talley said in a statement.

###