Courts & the Law, Defending Democracy, News

Voting rights advocates respond to latest voter ID ruling

A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit may have voided a District Court ruling that put a preliminary hold on the General Assembly’s latest effort to require North Carolinians to produce a photo ID in order to vote yesterday, but it’s far from the end of the story according to voting rights advocates.

As both the North Carolina NAACP and Democracy North Carolina pointed out in statements released after the ruling was handed down, the groups had always anticipated that the matter would proceed to a full trial (which is the next step in the case) and remain confident that they will prevail in the end. The advocates also noted that a separate state court lawsuit on the matter continues to move forward as well.

This is from the NAACP statement:

“…this preliminary ruling does not mean that the state of North Carolina is now authorized to implement its proposed strict photo voter ID requirement. The injunction from a state case challenging S.B. 824 (Holmes v. Moore) remains in place. Both the Holmes matter and NAACP v. Cooper are set to go to trial in 2021 for a final resolution on the merits.

Attorney Irv Joyner, counsel representing the NC NAACP plaintiffs, made the following statement today: ‘NC NAACP is reviewing this decision and we are considering all appellate options. We steadfastly believe that the Honorable Judge Biggs’s findings and determinations were correct at the preliminary injunction phase.  Nonetheless, under the reasoning of the decision today, NC NAACP Plaintiffs’ evidence will also prevail at trial on the full merits and we look forward to the fight for justice ahead.’

…SB 824 is being challenged on the grounds that the law was passed with a discriminatory intent and will produce discriminatory results on African-American and Latinx voters. The law is being challenged under Section 2 of the Voting Rights Act, the 14th Amendment of the U.S. Constitution, and the 15th Amendment of the U.S. Constitution. S.B. 824 requires registered voters to show one of a limited number of photo identification cards in order to cast a ballot and have it counted in a North Carolina election. This requirement will disproportionately injure African American and Latinx voters, who are less likely than other members of the electorate to possess the required forms of identification and who also face disproportionate burdens in obtaining such identification. As a result, African American and Latinx voters are more likely than other North Carolina voters to have their votes denied, diluted, or abridged by S.B. 824.”

And this is from Democracy NC:

“Strict photo voter ID requirements have faced scrutiny in North Carolina since 2013, when legislators passed a similar bill that the Fourth Circuit later held discriminated against Black voters with ‘surgical precision.’ The law at issue in this, S.B. 824 is being challenged on the grounds that the law was passed with a discriminatory intent and will produce discriminatory results on Black and Latinx voters. NAACP v. Raymond challenges S.B. 824 under Section 2 of the Voting Rights Act, the 14th Amendment of the U.S. Constitution, and the 15th Amendment of the Constitution. The plaintiffs in this case are the North Carolina State Conference of the NAACP, Chapel Hill-Carrboro NAACP, Greensboro NAACP, High Point NAACP, Moore County NAACP, Stokes County NAACP, and Winston-Salem Forsyth County NAACPs. In their statement earlier today, the plaintiffs anticipated the case proceeding to a full trial. A separate suit remains active in the North Carolina state court system, where an injunction blocking the ID requirement’s implementation remains in place.

Voting rights advocacy group Democracy North Carolina will continue to gather data and stories to showcase the requirement will ultimately disenfranchise thousands of NC Black and Latinx voters by limiting their access to the ballot. This type of legislation deprives eligible voters of their right to vote and reduces overall participation in the democratic process.

Tomas Lopez, Executive Director of Democracy North Carolina states, ‘We will continue to fight racially discriminatory voting laws that hinder Black and Latinx voters’ fundamental right to access the ballot. Despite today’s ruling, a state court injunction blocking the photo voter ID requirement remains in place, and both the federal and state cases remain active.'”

Courts & the Law, News

Advocacy groups announce partial settlement in lawsuit over hospital discrimination against blind patients

Nash Hospitals, Inc. agrees to pay $150,000, plus attorney fees; suit continues against UNC Health Care

Two years ago, the National Federation of the Blind, Disability Rights North Carolina and individual blind patients sued UNC Health Care System and Nash Hospitals, Inc. (which does business as “Nash UNC Health Care”) for systematic discrimination.

The lawsuit, which was brought under the terms of the Americans with Disabilities Act, the Rehabilitation Act, and the Patient Protection and Affordable Care Act, alleged that blind patients did not receive critical communications in alternate formats — such as Braille, large print, or electronic documents — but only in standard print. This failure caused financial and personal hardships for blind patients and prevented them from keeping their medical information private.

Today, the advocacy groups announced that a settlement had been reached with one of the defendants in the case. This is from a news release distributed this morning:

“Nash Hospitals, Inc. will pay $150,000 in damages and attorneys’ fees to settle legal claims by a blind Rocky Mount, NC man whom Nash General Hospital refused to provide written materials in Braille. The National Federation of the Blind, America’s civil rights organization of the blind, and Disability Rights North Carolina also agreed to not pursue further litigation against Nash Hospitals, Inc. for its past failures to provide written materials in formats accessible to the blind.

John Bone received emergency medical care at Nash General Hospital. Mr. Bone’s claims stemmed from his inability to read bills and other communications from Nash relating to his medical care because they were not provided to him in Braille, either at all or on a timely basis, resulting in collection agencies pursuing him for debts that he was unaware he owed. Importantly, these debts are also being forgiven as part of the settlement.”

The announcement went on to say that while Nash Hospitals, Inc. is no longer part of the lawsuit, the litigation against UNC Health Care System, will continue:

“Timothy Miles, Mr. Bone, the National Federation of the Blind, and Disability Rights NC allege that UNC Health Care System systematically discriminates against blind people by failing to provide them written information in formats they can access, such as large print, Braille, and accessible electronic formats, that enable them to participate in their care and make timely payments on their medical bills.”

National Federation for the Blind President Mark Riccobono

According to Mark Riccobono, President of the National Federation of the Blind, it ought not to be that difficult for UNC to accommodate blind patients. “With today’s technology, providing bills, medical records, and treatment instructions in alternative formats, such as Braille and large print, is readily achievable,” he said. “We are happy to work with healthcare entities who want guidance in providing medical information in accessible formats.”

Disability Rights NC executive director Virginia Knowlton Marcus said she hoped the settlement would send a message to health care providers. “Sighted people count on receiving printed bills from their healthcare providers, reviewing the charges, and negotiating with medical providers and the insurance company if they believe they were charged incorrectly,” she said. “Blind patients like Mr. Bone should not have to wrangle for their right to billing information in a format they can access, or live in fear of building up late fees and damaging their credit due to bills that are impossible for them to read.”

Commentary, Courts & the Law, News

Second Chance Act, which will open opportunities for those with criminal records, takes effect today

Major provisions of the transformative Second Chance Act, which breaks down barriers to jobs, housing, and more for those with criminal records, go into effect today. Nearly 1 in 4 North Carolinians has a criminal record; this landmark piece of bipartisan legislation will allow hundreds of thousands of people with criminal records to have their records expunged, thereby granting them access to opportunities they were previously denied.

“Those with criminal records can often face devastating collateral consequences. They may have difficulty securing employment or finding a place to live, making their reentry infinitely more difficult,” said Laura Holland, Staff Attorney for the Fair Chance Criminal Justice project at the North Carolina Justice Center. “The implementation of the Second Chance Act is an important step toward ending the exclusion of those with criminal records from their communities and could be life-changing for many North Carolinians.”

Hundreds of thousands of people will become eligible for expunction under the new law, including those with multiple misdemeanor convictions from seven or more years ago. Those with a felony conviction can now petition to expunge dismissed or ‘not guilty’ charges, and district attorneys can petition for expunction of dismissed and ‘not guilty’ charges on behalf of a person. On December 1, 2021, dismissed and not guilty charges will be expunged through an automated process. A provision that allows for the expunction of certain juvenile convictions obtained before December 1, 2019, is already in effect.

The law could be especially significant for Black people and other communities of color who are disproportionately impacted by the criminal justice system because of entrenched racism.

The Second Chance Act was made possible by a broad range of stakeholders, especially people with criminal records, their family members, and other members of the NC Second Chance Alliance. Learn more about the act on their website.

Anyone who thinks they may be eligible for a record expunction under the Second Chance Act should download the 2020 Summary of NC Expunctions for guidance.

For more information on this topic, contact Laura Holland, Staff Attorney, Fair Chance Criminal Justice Project, [email protected] or Andrea Dreier, Communications Specialist, andre[email protected].

Andrea Dreier is a communications specialist with the North Carolina Justice Center (parent organization to NC Policy Watch)

agriculture, Courts & the Law, Environment, News

In damning opinion, federal appeals court rules against Murphy-Brown in hog nuisance suits

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

Punitive damages will be recalculated, but court sides with plaintiffs on all other arguments 

This is a developing story.

Update 6:25 p.m.: Smithfield issued a statement saying they have “resolved these cases through a settlement that will take into account the divided decision of the court. Information about the terms of the settlement will not be disclosed.”

Murphy-Brown lost nearly every legal argument it posed before the Fourth Circuit Court of Appeals, which, in a damning opinion issued this afternoon reaffirmed a jury verdict awarding monetary damages to 10 neighbors who had filed nuisance suits against the world’s largest pork producer.

After 10 months since the oral arguments, the Fourth Circuit affirmed a decision issued by the District Court that Murphy-Brown’s operation of its industrialized hog operations — open lagoon and spray field systems, “dead boxes” and all-hours truck traffic — unduly harmed neighbors’ quality of life. The only point that Murphy-Brown prevailed on was the role of executive salaries and parent company profits in calculating punitive damages.

The case centered on neighbors of the Kinlaw Farm in Bladen County, a contract grower for Murphy-Brown/Smithfield Foods. However, the suit was filed in 2018 against Murphy-Brown, which controls every aspect of the farm, from the type and amount of feed, to the number of hogs raised, to the lagoon-and-sprayfield waste management systems.

After more than two weeks of hearing testimony, a jury awarded each plaintiff  $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount.

Punitive damages can be awarded if a jury finds a defendant “committed fraud,”  “acted in malice” or in “wanton neglect.”

There will be no new trial, the appellate court ruled, only a rehearing on the amount of punitive damages that can be awarded to neighbors without considering the parent company or executives’ financial information. Compensatory damages are unaffected.

At the district court level, the neighbors were represented by Wallace & Graham, based in Salisbury, who had hired Michael Kaeske of Texas to argue the case. McGuireWoods in Richmond, Va., represented Murphy-Brown.

In the 144-page opinion, appeals court judges disarmed Murphy-Brown’s many defenses, including its major points:

  • Murphy-Brown had tried to reel in Kinlaw Farms as a responsible party, even though the pork producer dictates the terms of the operation. Had Murphy-Brown succeeded in its argument, the company could have further buttressed its claim that the nuisances suits, of which there are dozens, harmed family farmers. In fact, Murphy-Brown is responsible for the damages.
  • The company had claimed that the Right to Farm Act of 2017, which sharply limited the amount of damages neighbors could recover in case they won in court, was retroactive. (Gov. Cooper vetoed the bill, but lawmakers overrode it.) By the time that legislation was enacted, dozens of nuisance suits had been filed in federal court against the company. Even though the text of the bill said it would be effective when it “became law and after that date,” Murphy-Brown and several lawmakers said it merely “clarified” previous farm acts and should apply retroactively.
    Original bill language did say it should apply retroactively, but was removed over concerns it could not pass constitutional muster.
    The appellate court disagreed, saying “we have nothing to conclude that the 2017 Right to Farm Act amendments should apply retroactively. … If made retroactive it would reward powerful defendants who faced with a possible judgment against them could escape responsibility by raising a specter of doubt about something the state’s courts have long made available.”
  • Murphy-Brown also lost its claim that the expert testimony of Shane Rogers should be struck. Rogers is an environmental engineer who testified that hog feces had been found on neighbors’ homes. He based these findings on Pig2Bac, a technology that can determine the fingerprint of fecal material. Although the technology had not been peer-reviewed, the court said that fact was only one consideration of its reliability.

The court also found that Murphy-Brown knew that its farms were causing problems for the neighbors, even without formal complaints. “Murphy-Brown’s own collection of media articles reporting conditions associated with its farming practices and policies, as well as its knowledge of studies detailing the effects of lagoon and spray field operations and types of effective remediation,” showed that the company was fully aware of the odor, flies, buzzards and truck traffic. “Yet despite this knowledge,” the court wrote, Murphy-Brown “persisted in practices it knew were reasonably likely to result in injury to neighboring properties.”

Nor did the court buy the company’s argument that the Kinlaw farm operated legally and with required permits, and thus should not be found liable for nuisance. “This is beside the point,” the court wrote. “Lawful enterprises can constitute a nuisance ….”

During the trial, Murphy-Brown executives testified that the company had taken steps to reduce impacts on neighbors. This included changing the type of feed to decrease odors from the manure. However, the court determined that these steps “were motivated by profit or efficiency of operations as oppose to concern for neighbors. … The fact that Murphy-Brown policies expressly encouraged growers to avoid spraying at times neighbors were known to be outside demonstrates that [the company] knew its spray field operation was still likely to interfere with use and enjoyment of their property.”

The neighbors, wrote the court, “presented clear and convincing  evidence that Murphy-Brown knew about the likely harms, denied their existence and fought for them not to come to light.”

Courts & the Law, Legislature, News

Racial Task Force recommendation: Decriminalize small amounts of marijuana possession

Photo: Getty images.

North Carolina’s Task Force for Racial Equity in Criminal Justice has adopted recommendations that include decriminalizing possession of small amounts of marijuana, and further studying the  potential legalization, cultivation, and sale of marijuana.

The task force, established last July by Gov. Roy Cooper,  is co-chaired by Attorney General Josh Stein and state Supreme Court Justice Anita Earls.

“You cannot talk about improving racial equity in our criminal justice system without talking about marijuana,” said Stein in a statement from his office.

“White and Black North Carolinians use marijuana at similar rates, yet Black people are disproportionately arrested and sentenced. Additionally, it is time for North Carolina to start having real conversations about a safe, measured, public health approach to potentially legalizing marijuana.”

North Carolina’s Task Force for Racial Equity in Criminal Justice met virtually and voted on the recommendations Wednesday.

“Data made available to the Task Force shows that 63 percent of the more than 10,000 convictions for simple possession of marijuana last year in North Carolina are people of color even though they are only 30 percent of the population and research documents that marijuana use is at roughly equal percentages among Black and white populations,” said Justice Anita Earls.

Earls said the recommendation is intended to help alleviate long-standing racial disparities in North Carolina’s criminal justice system.

Last year there were more than 31,000 charges and 8,520 convictions for possession of up to ½ ounce of marijuana. Sixty-one percent of those who were convicted were nonwhite.

Other recommendations that will be presented to Governor Cooper in a report December 15th include:

  • The Task Force further recommends that North Carolina convene a Task Force of stakeholders, free from conflict of interest, to study the pros and cons and options for legalization of possession, cultivation and/or sale, including government or not for profit monopoly options. The study should be guided by a public safety, public health, and racial equity framework.
  • Improve drug enforcement data collection and reporting by:
    • Requiring every law enforcement agency to participate fully in the NIBRS system
    • Requiring every law enforcement agency to publish drug enforcement data on its department website in easy searchable fashion, including number of arrests and citations by drug, quantity, race, gender, and reason for search. This may necessitate providing additional resources to law enforcement agencies, especially smaller agencies.
  • Deemphasize (or make the lowest drug law enforcement priority) felony drug possession arrests for trace quantities under .25 grams in non-ABC permitted locations.
  • Deemphasize (or make the lowest drug law enforcement priority) marijuana possession arrests in non-ABC permitted locations.
  • Prosecutors should immediately deprioritize marijuana-related prosecution in non-ABC permitted locations.

The North Carolina General Assembly will convenes for the long 2021 session on January 31. It’s unclear if they will move forward with these recommendations.