Courts & the Law, News

Superior Court judges hire lobbyists; merit selection plan could be unveiled by end of October

Tracy Kimbrell and Nathan Babcock

The North Carolina Conference of Superior Court Judges hired two lobbyists this week to be their “eyes and ears” in Raleigh.

The lobbyists are Nathan Babcock and Tracy Kimbrell, both of the Parker Poe law firm. The president of the Conference, Superior Court Judge Joe Crosswhite, who serves district 22A in Alexander and Iredell counties, said the lobbyists weren’t hired in response to any particular bill or policy decision.

“There’s a lot of talk in Raleigh, and we just needed somebody to be our eyes and ears,” he said in a phone interview Wednesday. “Our judges, we’re out working all the time.”

He added that the Conference hired the lobbyists on a short-term basis, through the end of October. When the group, which has about 120 members, meets again next month, it will decide how to proceed.

The move comes a little over a month after the North Carolina Association of District Court Judges hired two well-known lobbyists, Charles Neely Jr. and Richard Zechini, of the Williams Mullen law firm. That group hired lobbyists in reaction to a judicial redistricting bill that is currently making its way through the House.

Crosswhite said House Bill 717 was part of the reason for the Conference hiring lobbyists, “but that was not all of it at all.”

Before joining Parker Poe, Babcock was the political director for the North Carolina Chamber, where he successfully lobbied for comprehensive legislative priorities including education, tax reform, tort reform, unemployment insurance reform and transportation funding modifications, according to his biography.

Kimbrell served as general counsel for Senate President Pro Tem Phil Berger from 2010 to 2013. In 2012, she served as the acting chief of staff in the Senate leader’s legislative office.

She also previously worked at the General Assembly in the office of the Senate Minority Leader, researching and monitoring legislative matters on behalf of the Senate Republican Caucus. She later worked on a Republican gubernatorial campaign.

Kimbrell confirmed in an email Wednesday afternoon that she and Babcock did register as lobbyists for the Conference and said neither had a comment to offer at this time.

Judicial redistricting isn’t the only courts-related agenda action item on the General Assembly’s schedule this year. The Senate has been floating a potential merit-selection plan to various groups over the last couple months.

Crosswhite confirmed Wednesday that the Conference is scheduled to meet with Berger’s chief of staff, Jim Blaine, next week to hear a presentation on merit selection. He said it’s something the Conference has talked about but wanted to wait for a lobbyist to get on board before meeting with Blaine.

He also praised the Senate for having a candid process as merit selection is considered.

“They have been very responsive and very helpful and very willing to sit down and talk with us about it,” Crosswhite said.

The Conference has not yet adopted a position on merit selection and Crosswhite said it will wait to see what the actual proposal is before doing so. He added that it’s expected the Senate will unveil its merit selection process by the end of October.

Rep. Justin Burr (R-Stanly, Montgomery) indicated last week that the General Assembly could pass new judicial maps and put a merit selection constitutional amendment on the ballot, which would allow voters to decide which process would go into effect.

Crosswhite reiterated that the Conference is not a political organization.

“We needed help and that’s what this is,” he said of hiring lobbyists. “October will be an active month.”

Courts & the Law, News

Board of Education asks Court of Appeals to pause transfer of power to Superintendent

Superintendent Mark Johnson (left) and State Board of Education Chairman Bill Cobey (right)

The State Board of Education has officially asked the Court of Appeals to stop Superintendent Mark Johnson from taking the reigns of the Department of Public Instruction until the appeal process is complete.

The motion for temporary stay and writ of supersedeas was filed late Tuesday afternoon. A three-judge Superior Court panel ruled for Johnson in a lawsuit over the transfer of power but issued a 60-day stay to prevent its ruling from going into effect right away.

The Board’s attorneys used those 60 days to try to negotiate with Johnson’s attorneys but were unsuccessful, so they went back to the panel to ask for another stay. The panel gave the Board 30 more days, which ends at 5 p.m. Monday, October 16.

Now, the Board is asking the appellate court to step in and extend the stay to preserve the status quo while litigation continues.

“Here, a stay of the trial court’s decision during the appeal is warranted because it is necessary to preserve the Board’s constitutional power and duty to supervise and administer the State’s public schools — a nearly 150-year-old responsibility,” the court document states.

The Board’s argument is that its power is derived — and has been for 150 years — from the N.C. Constitution.

“In stark contrast to the broad, sweeping powers and duties that the North Carolina Constitution confers on the Board, the North Carolina Constitution has always confined the [Superintendent of Public Instruction] to a limited role,” it states.

The document contends that a constitutional amendment would be required to flip-flop the Board’s and the SPI’s constitutionally mandated roles.

Without the appellate court issuing a stay, the legislation in question will move the entire $10 billion public school system under the control of a single individual for the first time in North Carolina history, according to the court document.

“This seismic shift will generate enormous disruption for our State’s public schools,” it states. “Worse, this seismic
shift would occur overnight, without any transition period whatsoever. As part of this disruption, the SPI would be immediately empowered to take drastic actions that could not be undone.”

Board’s Motion for Temporary Stay and Petition for Writ of Supersedeas by NC Policy Watch on Scribd

Courts & the Law, News

Appellate panel in Rules Commission case: Board of Education power subject to General Assembly laws

While litigation involving a transfer of power from the State Board of Education to Superintendent Mark Johnson, a three-judge appellate panel has ruled in another case that rules made by the Board are subject to statutes enacted by the General Assembly.

The Board sued the state of North Carolina and the NC Rules Review Commission over a separation of powers argument: review of the Board by the Commission encroaches on its constitutional authority.

Judge Lucy Inman wrote in the opinion, released Tuesday, that the appeal of a lower court’s ruling in favor of the Board presents a question of first impression.

“Does the North Carolina Rules Review Commission, an agency created by the General Assembly, have the authority to review and approve rules made by the North Carolina State Board of Education, whose authority is derived from the North Carolina Constitution?” she wrote. “For the reasons explained in this opinion, we conclude the answer is yes.”

The Rules Commission was created in 1986 and the Board took legal action in November 2014.

“The Board’s complaint sought a declaratory judgment preventing the Commission from exercising any authority over the Board and, specifically, controlling the Board’s enactment of rules,” the appeal states.

In Inman’s ruling, she gives historical context about the Board, its creation and evolution. It helps explain how the court reached its conclusion.

“We hold that the review and approval authority delegated to the Commission is an appropriate delegable power and that the General Assembly has adequately directed the Commission’s review of the Board’s proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the APA,” the appeal states. “By providing adequate guidelines for rules review, the General Assembly has ensured that the Commission’s authority as it relates to the rules promulgated by the Board is not ‘arbitrary and unreasoned’ and is sufficiently defined to maintain the separation of powers required by our state constitution.”

Judge John Tyson dissented from Inman’s opinion, in which she was joined by Chief Judge Linda McGee.

“By establishing a Board of Education with the specific constitutional authority to promulgate its own rules and regulations, the framers of Article IX and the People, upon ratifying the Constitution, vested the authority to administer and supervise public education to the State Board, not the RRC,” Tyson wrote. “This intention is clearly set forth in the plain language of the Constitution in Article IX.”

That’s an argument the Board’s counsel has used to oppose the transfer of their power to Johnson. Johnson’s attorneys have said that the General Assembly has the power to transfer that power.

A three-judge Superior Court panel sided with Johnson but an appeal is pending at the state Court of Appeals. It’s expected to go to the state Supreme Court.

Courts & the Law, News, Tracking the Cuts: The Dismantling of Our Public Schools

State, not local government, to blame for poor school conditions, Appeals Court rules

The local government in one eastern North Carolina county can’t be held responsible for “serious problems” with chronically underachieving local schools, a state appeals court ruled Tuesday.

Responsibility for Halifax County’s lagging district falls instead on North Carolina’s state legislature and its executive branch, judges argued.

That ruling comes after five students in the county and their parents or legal guardians accused Halifax County commissioners of unequal funding for the county’s three school districts, slighting two districts largely composed of minority students.

It’s a pivotal ruling related to the state’s long-running Leandro case, which began in 1994 when plaintiffs in several low-wealth counties, including Halifax, argued students were not afforded the same chance to succeed as their peers in more affluent North Carolina counties.

In the Leandro case, the court found the state has a constitutional obligation to provide a “sound basic education” to students.

The plaintiffs in Tuesday’s ruling said decisions made by local county commissioners infringed on that right, although two out of three judges found that the local board of commissioners cannot be solely blamed for the districts’ myriad issues with facilities, supplies and performance listed in the case.

Mark Dorosin, an attorney with the UNC Center for Civil Rights who represented the Halifax County plaintiffs, called the decision “disappointing.”

“The court’s ruling in the Halifax case really tries to narrow the scope of the constitutional right to a sound basic education in a way that I don’t think the court that decided the Leandro case intended,” said Dorosin.

Issues in Halifax’s minority-dominated districts include flagging test scores, deteriorating facilities and marked difficulty in hiring quality, experienced teachers—all in contrast with a third, primarily white local school district.

The majority sided with an earlier trial court dismissal in the case, finding “serious problems in the schools in Halifax County, but because this defendant—the Halifax County Board of Commissioners—does not bear the constitutional duty to provide a sound basic education, we affirm the trial court’s order dismissing this action.”

Instead, the court found that responsibility rests with state leaders in the N.C. General Assembly and the executive branch, including Gov. Roy Cooper, the State Board of Education and the N.C. Department of Public Instruction.

However, one dissenting judge, Chief Judge Linda McGee, wrote in her opinion that local governments have a “role to play” when it comes to the financial backing of the public schools.

Because one judge dissented, the plaintiffs will have the right to appeal their case to the state Supreme Court. Dorosin said Tuesday he would be speaking to his clients in the coming days to discuss further appeal.

Look for more on this pivotal case later this week from Policy Watch.

Courts & the Law, News

After plaintiff objection, redrawn legislative maps now in hands of federal court

The plaintiffs in North Carolina’s recent racial gerrymandering case already made clear to lawmakers’ that their new legislative maps were flawed but filed an official objection Friday with the federal court.

The filing states that while the court found 28 state House and Senate districts to be unconstitutionally racially gerrymandered, lawmakers altered 116 districts and the plaintiffs in North Carolina v. Covington object to 12 of them.

They allege federal and state constitutional violations in the 12 newly drawn districts and filed remedial alternative maps.

“What we filed today is no different from what we told the General Assembly before they passed these new districts,” said Anita Earls, Executive Director of the Southern Coalition for Social Justice (SCSJ) and lead attorney for the plaintiffs. “They failed to cure the illegal use of race in several areas of the state. It is now the Court’s responsibility to fix the problem. Further, the legislature violated the North Carolina Constitution by redrawing districts in Wake and Mecklenburg counties that should not have been touched.”

The plaintiffs also contend that racial gerrymanders were not cured in four districts: Senate districts 21 (Hoke County) and 28 (Guilford County) and House districts 21 (Wayne and Sampson counties) and 57 (Johnston County).

They aren’t challenging, however, all districts with high Black voting age populations.

“Plaintiffs’ objection to these four districts is not based solely on the racial composition of the districts but rather includes circumstantial evidence including the shapes of the districts and the populations contained within them,” states a media release from SCSJ. “While the implications of this data may be contested, the facts themselves, the compactness scores, the district lines and the census data, are not contested.”

In their objection, the plaintiffs also state that five districts in Wake and Mecklenburg counties were unnecessarily redrawn, which exceeds the court-ordered authority given to the General Assembly.

The plaintiffs asked the court to adopt part of the Senate and House districts and part of their alternative maps to remedy the violations pointed out in the objection. In the alternative, the plaintiffs request that the court sustain their objections and order a special master to redraw those districts.

“We are asking the court to step up and do what the legislature has continually failed to do — give North Carolinians fair districts that do not discriminate or violate the state constitution,” Earls said.

*****

Several voting rights organizations filed amicus briefs in the case in support of the plaintiffs. Democracy NC and League of Women Voters of North Carolina filed its brief together. They urge the court to take full control of “any further map drawing, protect the public’s interests, and bestow no more generosity upon Defendants.”

In the brief, the organizations take issue with the public hearing process and allege that lawmakers did not use any input from citizens with regard to the new maps.

“Ironically, Defendants blamed the Court’s scheduling for their inability to select better venues and disclose their maps well ahead of the hearings. Instead of pursuing what the Court called a ‘commendable goal of obtaining and considering public input,’ Defendants’ actions demonstrated a fundamental disrespect, if not contempt, for the
public’s involvement and, indeed, for this Court’s decision to grant them extra time. Amici Democracy NC and LWV NC believe that it’s important for this Court to receive a detailed description of these actions and the deep disappointment the public feels about the public hearing process.”

The NC NAACP also filed in amicus brief with the court to “highlight the constitutional inadequacy in the General Assembly’s treatment of race in constructing a remedial redistricting plan for North Carolina Senate and House seats.”

“While the General Assembly’s process was riddled with numerous deficiencies that render the maps an inadequate remedy for the egregious constitutional violation at issue in this case, the critical error in the treatment of race is sufficient, by itself, to justify this Court’s rejection of the General Assembly’s submitted maps,” it states. “To cure the constitutional violation created by their 2011 racially-gerrymandered districts, the General Assembly should have examined race data in concert with other traditional redistricting principles to ensure that the purposeful unconstitutional racial gerrymander that has deprived black voters of their voting rights for six years is fully remedied and to draw fair districts that comport with federal and state constitutions and laws.”

You can read the full brief here.