Courts & the Law, News

Cooper, parties in Leandro case taking steps forward to help state meet education requirements

The News & Observer is reporting today that the parties in the landmark education case Leandro v. North Carolina have agreed to nominate an independent consultant to come up with a specific plan to improve North Carolina’s education system.

The agreement announcement was made Monday on the 20th anniversary of the state Supreme Court’s first ruling in the case, when it declared that the State Constitution guarantees every child “an opportunity to receive a sound basic education,” according to the article.

“After two decades of litigation, the plaintiff school districts and the state agreed to nominate an independent, “non-party” consultant to the court by Oct. 30, or, if they can’t agree on one, they’ll nominate three possibilities.

If the court concurs, the consultant will work to come up with a specific plan for meeting the court’s 2002 mandates in its second Leandro ruling – a well-trained, competent teacher in every classroom, a well-trained, competent principal in every school and enough resources that every child has an equal opportunity for education. Those mandates were upheld by the state Supreme Court in 2004.

It’s unclear what influence, if any, the consultant would have in the legislature, which allocates funding for education.”

Gov. Roy Cooper also announced today in a press release that he has signed an executive order to establish the Governor’s Commission on Access to a Sound Basic Education to help North Carolina meet its duties under the state constitution as underscored by the landmark rulings in Leandro and Hoke County Board of Education v. North Carolina.

“No matter where North Carolina students live or go to school in our state, they all deserve access to a quality education that prepares them for the jobs and opportunities of the future,” Cooper said in the release. “That is their right as children of North Carolina and we must not let them down.”

The Commission will assess North Carolina’s ability to staff schools with competent, well-trained teachers and principals and its commitment to providing adequate resources to public schools, according to Cooper’s Office.

Seventeen representatives will be appointed in the coming weeks by Cooper from the fields of education, business, local government, law, health care, early childhood development, psychology and counseling, and public safety. The first meeting is expected to be in the fall.

Commission leaders will work with the independent consultant appointed in Leandro to help with their review and assessment.

Courts & the Law, News

Racial gerrymandering plaintiffs to argue lawmakers actions after Supreme Court opinion are void

When the U.S. Supreme Court ruled that 28 State House and Senate districts were unconstitutionally racially gerrymandered, the North Carolina General Assembly and its actions became illegal.

That’s the argument the plaintiffs in North Carolina v. Covington plan to make next week, according to court documents filed Friday.

“Arguably, under State v. Lewis and Van Amringe v. Taylor upon issuance of that mandate the members of the illegally constituted General Assembly lost the protection of the de facto doctrine and became usurpers unauthorized to act to protect the health and [safety] of all North Carolinians,” the document states. “It is entirely possible that any legislative actions they take without being elected from legal districts could be subject to challenge under state law. This risk is not merely speculative.”

A usurper is someone who takes a position of power illegally or by force. The de facto doctrine is designed to validate the past acts of public officers illegally in office, according to the court document.

A court hearing is set Thursday in the U.S. District Court for the Middle District of North Carolina. A three-judge panel will decide a timeline for state lawmakers to redraw the illegal district maps, in addition to deciding whether a special election will be ordered to remedy the constitutional violations.

All parties in the case had to file any extra briefs or arguments and witness lists by midnight Friday.

Attorney General Josh Stein, who is representing both the state of North Carolina and the State Board of Elections, plans to call witness Kim Westbrook Strach, Executive Director of the Bipartisan State Board of Elections & Ethics Enforcement.

Strach’s husband, Phillip Strach, is one of the attorneys representing the legislative defendants, which means he could potentially cross-examine her at the hearing.

The legislative defendants did not file a brief or witness list. They did file one exhibit they plan to use in court: the North Carolina Supreme Court’s dismissal in Cooper v. Berger of Gov. Roy Cooper’s request to stop the Bipartisan Board.

The lawsuit is over Senate Bill 68, which merges the functions of the State Board of Elections and State Ethics Commission, along with campaign finance and lobbying functions.

The dismissal of the motion for temporary stay states that the court must preserve the status quo of the Bipartisan Board during its expedited consideration of the case and that the parties are prohibited from taking further action regarding the unimplemented portions of the act.

The exhibit document does not state why legislative defendants plan to use the dismissal in their Covington arguments.

The plaintiffs in Covington plan to call six witnesses: Milo Pyne, a plaintiff; Rep. Grier Martin (D-Wake); Rep. Robert T. Reives II (D-Chatham, Lee); Gary Bartlett, former Executive Director of the State Board of Elections; George Gilbert, former director of the Guilford County Board of Elections; and Rep. David Lewis (R-Harnett).

The plaintiffs also filed a brief to support their request to give the General Assembly two weeks to redraw the unconstitutional maps and to order special elections for March 2018.

The brief lays out the argument that the General Assembly became illegitimate when the U.S. Supreme Court made its ruling in Covington. It includes an exhibit declaration from Derb Stancil Carter Jr., Director of the Chapel Hill office of the Southern Environmental Law Center (SELC).

In the declaration, Carter says it is the position of SELC that the General Assembly no longer has the authority to override gubernatorial vetoes, and will not have that authority until constitutional districts are drawn and a legal, de jure legislature is elected.

He also states (and wrote a letter to the Governor and legislative leaders) that if lawmakers attempt to override the veto of House Bill 576, entitled “Allow Aerosolization of Leachate,” at the scheduled Aug. 3 or Sept. 6 legislative sessions, they could be sued.

The other exhibit the plaintiffs submitted to the court is a proposed schedule for the redrawing of maps and a special election to be held March 6.

The schedule would require that new maps be enacted by Aug. 11 and the candidate filing period would take place from Sept. 11 through Sept. 25. It leaves time for a 40-day absentee voting period for the primary, a primary on Dec. 5 for legislative districts in impacted districts and a 51-day absentee voting period for the general election.

The court, the brief states, should order lawmakers to enact remedial districts immediately and conduct special elections before their next session to remove the risk that their acts as usurpers will be challenged as void.

Courts & the Law, News

Republican legislative leaders dismiss lawsuit against Cooper over Medicaid expansion

Legislative leaders announced Thursday that they were dismissing their federal lawsuit against Gov. Roy Cooper because he didn’t follow through on “threats” to expand Medicaid.

Senate President Pro Tem Phil Berger said they were told by the federal Centers for Medicare and Medicaid Services that the Governor had not followed through on attempting to expand Medicaid.

“We are pleased Gov. Cooper abandoned his plan to defy state and federal law and unilaterally expand Obamacare in North Carolina, but remain prepared to take swift legal action if he tries to make this unlawful move again,” Berger said in a joint statement with House Speaker Tim Moore.

The 20-page lawsuit was filed in January.

Cooper’s spokesman, Ford Porter responded to the news:

“We’re glad that Republican legislative leaders have dropped their case against bringing health care to millions of North Carolinians. Expanding health care is the right thing to do for North Carolina’s people and our economy, and it would allow tax dollars already being paid by North Carolinians to help right here at home instead of going to other states. Legislators should never have filed this suit in the first place and it’s a shame it took them this long to figure that out.”

Courts & the Law, News

State Supreme Court dismisses Cooper’s request to halt already merged Elections, Ethics Board

Gov. Roy Cooper speaks at a press conference.

The state Supreme Court agreed to take on Gov. Roy Cooper’s appeal over the State Board of Elections and State Ethics Commission merger but it will not grant a temporary stay to halt the new agency from operating.

Newly elected Justice Michael Morgan wrote the order dismissing Cooper’s motion for temporary stay as moot. The court, he wrote, must preserve the status quo during the expedited consideration of the case.

“The status quo as of the date of this order is to be maintained,” Morgan wrote. “Therefore, until further order of this Court, the parties are prohibited from taking further action regarding the unimplemented portions of the act that establishes a new ‘Bipartisan State Board of Elections and Ethics Enforcement.'”

The state’s highest court on Wednesday announced it would expedite Cooper v. Berger, bypassing a review from the State Court of Appeals. The case is set for oral argument at 9:30 a.m. Aug. 28.

The lawsuit is over Senate Bill 68, which merges the functions of the State Board of Elections and State Ethics Commission, along with campaign finance and lobbying functions.

You can read the court’s order dismissing the motion for temporary stay here.

Cooper’s spokesman, Ford Porter, released the following statement after the dismissal:

“We’re pleased the Supreme Court agrees with Governor Cooper that this legal process needs to be allowed to play out and that members should not be appointed to the proposed new board while that happens. This ruling puts on hold any further actions to merge the elections and ethics boards until these critical issues get decided, and we look forward to making our case on August 28 to stop this backdoor effort to suppress voters.”

Courts & the Law, News

State Supreme Court takes on Cooper’s lawsuit over Board of Elections, Ethics merger

The North Carolina Supreme Court agreed Wednesday to expedite Gov. Roy Cooper’s appeal over the General Assembly’s law merging the State Board of Elections and the State Ethics Commission.

The state’s highest court will hear arguments at 9:30 a.m. Aug. 28 in Cooper v. Berger, et al. The Supreme Court’s decision to take the case bypasses a review by the State Court of Appeals.

A three-judge panel in Wake County Superior Court has heard the case twice; once ruling mostly in favor of the Governor and once dismissing the case altogether.

Senate Bill 4 was passed during a special session in December, and the three-judge panel struck down much of that law. Instead of appealing their ruling, Republican legislators rewrote the law this session and passed it as SB68, the law the Supreme Court will review.

Both bills abolish the longstanding State Board of Elections and State Ethics Commission and merge the two agency’s functions, along with campaign finance and lobbying functions. The difference between the two bills is that the eight-member “bipartisan” board under SB68 would require a five-member quorum (a simple majority) for election issues. SB4 required a six-member quorum. Ethics issues would still require a six-member quorum under the law in SB68.

The other difference is that Cooper will be able to appoint all eight members of the new board with recommendations from the two majority political parties. Members of the new board will be split between Democrats and Republicans. Cooper would not be able to choose the executive director of the Board.

Cooper has not yet appointed members to the new Board.