U.S. House committee examines need to expand federal courts

Rep. Deborah Ross, D-N.C.-02, spoke at the House Judiciary Committee on Feb. 24.

Population, caseloads are up, but number of judges remains stagnant

Creating new district and circuit court judgeships is now on the congressional agenda 30 years after the last legislative increase in 1990. While population and caseloads continue to grow at a rapid rate, the U.S. has added only 34 District Court judgeships and no Court of Appeals seats since 1991. A House Judiciary Committee hearing on Wednesday brought judges and law professors to discuss the need for more judges, and how to navigate partisan politics in doing so.

Committee chairman Rep. Jerrold Nadler, D-N.Y., said “Access to justice is a constitutional guarantee, but when this promise meets the reality of an overburdened and understaffed court, too often cases may be delayed or rushed and justice short-changed.”

A bill introduced by Rep. Darrell Issa, R-Calif., in 2018 that sought to add 52 district judgeships after the 2020 election and restructure judicial districts nationwide gained bipartisan support. However, the bill failed to make it out of the committee before the legislative session concluded.

Committee member Rep. Deborah Ross, D-N.C., echoed the call for a change. She noted that North Carolina has had tremendous population growth without any increase of district court judges.

Ross blamed partisan division for the failure to make progress, pointing out that seat on the Eastern District of North Carolina sat vacant for more than ten years because both parties couldn’t agree on a judicial candidate.

Currently, there are five judges at the United States District Court for the Eastern District of North Carolina, eight at the Middle District, and six at the Western District. Special judges and magistrates within each district also serve various terms.

Rep. Dan Bishop, R-N.C.-09, at U.S. House Judiciary Committee hearing on Feb. 24.

Rep. Dan Bishop, R-N.C., raised questions about the necessity of adding judges now, saying he’s worried that “expanding lower courts may be a ploy to render the Supreme Court less able effectively to manage them.”

Marin Levy, a law professor at Duke University, testified that the caseload per judge at the appellate level has risen significantly. Nationally, the figure increased by more than 20% from 237 in 1990 to 284 in 2019, crossing the benchmark of 255 set by the judicial conference.

Nadler said that the United States Court of Appeals handles 50,000 appeals, yet fewer than 100 make it to the Supreme Court, making it the last court for most litigants.

Rep. G.K. Butterfield

In a Feb. 21 New York Times article, Rep. G. K. Butterfield was reported to be urging the Biden administration to pick judges with “a diversity of experience in multiple settings and in multiple areas including experiences outside of the law” as part of the greater push for racially diverse candidates. Butterfield was a state superior court judge and a state Supreme Court associate justice from 2001 to 2002 before he ran and won a Congressional seat representing North Carolina’s First Congressional District.

At Wednesday’s hearing, lawmakers and experts also spoke about the need to split up that the Ninth Court of Appeals District, which encompasses nine westernmost states and pacific islands. Several bills have been introduced during this Congressional session to add more district judgeships in Colorado and Idaho.

State to release 3,500 incarcerated people under new settlement with civil rights groups

Lawsuit challenged constitutionality of their treatment during the pandemic

The North Carolina Department of Public Safety will release 3,500 people early from prison after settling a lawsuit which argued that their constitutional rights were violated by the treatment they have received during the COVID-19 pandemic, according to a press release from the ACLU of North Carolina. The press release described the relief as among “the largest prison releases in the country achieved via COVID-19 litigation efforts.”

These 3,500 people will receive one of the three ways of relief within a 180-day period — some will be awarded lessened sentences, some will serve outside of prison through a program called Extended Limits of Confinement and others will be on post-release supervision or parole, according to a statement from the DPS. Currently, only those who are pregnant, on home or work leave with a release date this year, and others projected to be released this year qualify for the ELC program.

Originally filed in state court in April of 2020, the suit NC NAACP v. Cooper, involves multiple plaintiffs, including three incarcerated people and a family member, the NC NAACP, the ACLU of North Carolina, Disability Rights North Carolina, Emancipate NC, Forward Justice, and the National Juvenile Justice Network. The settlement was approved by Wake County Superior Court Judge Vinston Rozier, Jr.

Click here to view the “consent order for stay” which effectively puts the case on hold for 180 days as the agreement is implemented.

“What’s happening in North Carolina prisons is the convergence of two pandemics both fueled by racism and classism – COVID 19 and an unjust criminal legal system,” Rev. Dr. T. Anthony Spearman, president of the NC NAACP said in the press release.

To date, 47 people have died of COVID-19 in North Carolina prisons, according to DPS press releases compiled by Carolina Public Press reporter Jordan Wilkie.

Rozier issued orders in June and August of last year, asking for a plan from the state and demanding more testing. In an order, Rozier called it necessary “to allow for early release of eligible individuals to the greatest and safest extent possible”.

He also appointed a special master, Thomas Maher, executive director of the Center for Science and Justice at Duke University, to ensure the state follows the rules after finding the state out of compliance with his previous orders.

Besides the initial 3,500 releases, the governor’s office also agreed to monitor and control the prison population, pledging to further send people home early if they were scheduled to be released within 90 days when a prison population grew by more than 10%.

The state will also adopt measures to educate and incentivize staff and residents to receive vaccines, and to strengthen safety measures related to transfers, providing PPE, as well as isolation for positive patients.

“This lawsuit was particularly necessary to protect the lives of incarcerated people with disabilities because we know many disabled people are at highest risk of severe illness or death from COVID-19 due to underlying chronic medical conditions,” Susan H. Pollitt, senior staff attorney at Disability Rights North Carolina said in the press release.

This settlement does not apply to county jails. Other individual petitions and complaints regarding incarceration conditions in jails and prisons are still filed frequently.

Bill to allow concealed carry at churches with affiliated schools advances from committee

Sen. Warren Daniel, R-Avery, Burke, and Caldwell) is one of SB 43’s sponsors.

The state Senate Judiciary Committee advanced a bill on Wednesday that would allow guns to be carried at religious facilities with affiliated schools. The amendment allows anyone with a “concealed carry” permit to bring a handgun during non-school hours on the property. A similar bill passed both the House and Senate last year but was vetoed by Gov. Cooper. Before that, a similar bill was brought up in 2017 and stopped short of Senate approval after passing the House.

One of the sponsors of the bill, Sen. Warren Daniel, R-Burke, said the legislation will exempt places of worship from the ban, even if they have schools onsite. Places of worship without schools on their property can set their own protocols regarding concealed carry under North Carolina state law.

Sen. Natasha Marcus, D-Mecklenburg, opposed this bill at the meeting. She voiced concerns for armed individuals leaving behind their weapons, which could end up in the hands of schoolchildren.

Daniel refused to take up another suggestion made by Marcus to include an amendment prohibiting concealed carry guns in churches that also serve as polling places. Daniel said that there’s no law that currently prohibits concealed carry at polling places and doing so will change the current law.

Marcus later said in an email that the bill was “amended without notice during the committee hearing,” and that committee members were not given adequate time to fully analyze its impact.

She referenced a voter intimidation case in Charlotte in 2020 when a gunman showed up at a polling site. She wrote “to the extent this bill would enable similar situations to happen more frequently, either by design or due to careless drafting, I oppose it.”

Four church leaders spoke in support of the bill at the committee meeting. They cited church shootings in other states as reason to support the legislation. Ron Baity, a pastor at the Berean Baptist Church in Winston-Salem said he’s worried about slow law enforcement response, “If a gunman is in our church, and he’s pulling the trigger, and he’s reloading in 10 minutes — if we don’t take him out, if we’re not able to stop him, he can take out most of our congregations.”

Baity said his church is at a disadvantage to defend congregants when school is not in session.

Other religious leaders disagree. “All churches should be treated equally — no churches should have guns,” Jennifer Copeland, executive director of the NC Council of Churches said in an interview with Policy Watch. The group has long opposed gun violence. Copeland asked faith leaders from different religious groups to sign a letter opposing the bill to key lawmakers.

“The foundation of our faith is, we are people of peace,” Copeland said. “And that’s true for Christians, for sure, but it’s also true for most of the world’s major religions.”

Becky Ceartas, executive director of advocacy group North Carolinians Against Gun Violence told Policy Watch that she’s also concerned that allowing this exception will set a precedent for other schools, especially private ones, chipping away the laws that govern prohibition of firearms in schools under the federal Gun-Free School Zones Act.

Ceartas said the bill potentially puts schoolchildren in danger, noting that numerous studies have shown concealed carry increases gun violence.

The bill will next head to the Rules and Operations Committee of the Senate for review. A similar measure was approved and signed into law in Indiana in 2019 and another divided the Florida committee members along party lines this year.

Attorney General Josh Stein’s office defends state’s “ag-gag law,” appeals previous ruling that it’s unconstitutional

Attorney General Josh Stein

North Carolina’s “ag-gag” law, which curbs watchdogs’ ability to document wrongdoing in “non-public areas” of their places of employment, is again before the Fourth Circuit Court of Appeals.

Last June, federal Chief Justice Thomas Schroeder of the Middle District Court of North Carolina issued his 73-page decision declaring the law unconstitutional because it violated the First Amendment.

Attorney General Josh Stein’s office has appealed that decision on behalf of defendants, the state and UNC Chapel Hill. The NC Farm Bureau Federation had also intervened in the case on behalf of the defense. The plaintiffs then cross-appealed. They include animal rights advocates, including Farm Forward, PETA, Food and Water Watch and the ASPCA. The Reporters Committee for Freedom of the Press also filed a friend of the court brief supporting the plaintiffs.

Passed in 2015, the law was entitled the “Property Protection Act.” It allowed courts to assess civil penalties on employees who took videos or photos of a business’s non-public areas to document alleged wrongdoing, and then passed that information to anyone besides the employer or law enforcement. While bill supporters argued that it protected businesses from the theft of trade secrets, its underlying intent was to thwart animal rights activists from getting hired at farms and research labs and then conducting undercover investigations.

However, the law was broad enough that it could have applied to any employee:

  • Law enforcement officers who documented abuses by fellow officers — but didn’t have faith in their supervisors to act — could have also been penalized had that information been passed to outside parties.
  • Workers at nursing homes or meatpacking plants who wanted to document sanitation practices during COVID-19 and pass the photos or video to the media could have been penalized.
  • Reporters who asked workers to document alleged offenses were also subject to the law.

The civil penalties were steep: up to $5,000 per day, plus attorney’s fees.

In court filings, Stein’s office argued that the First Amendment doesn’t apply because the Property Protection Act governs how the material is collected — by trespassing — not its content.  The Act bars individuals from “breaching a duty of loyalty to an employer,” which is not a constitutional issue, court documents read. “The First Amendment does not protect unlawful information gathering,” court documents read. “Truthful information sought to be published must have been lawfully acquired.”

However, the duty of loyalty clause is usually construed to guard against the theft of trade secrets or the use of one employer’s inside information to benefit a second employer.

In many watchdog cases, the undercover activity is intended to publicly expose wrongdoing, not to give a competitive advantage to another company.

Attorneys for the plaintiffs argued that in fact, the Act does regulate speech based on its content.

“It is focused on restricting anti-employer speech,” court documents read. On the other hand, it’s unlikely that an employer would file a complaint against someone capturing footage or photographs that show the workplace in a positive light.

At that time, Rep. Jonathan Jordan, an Ashe County Republican, said he co-sponsored the bill because he had “family and friends who are in the restaurant industry and he wished to prevent embarrassment to them from people revealing what goes on,” according to court documents. Jordan acknowledged the bill could affect news gathering “but stated this was justified because he was convinced that the media can do its job in other ways.”

Plaintiffs’ attorneys noted that “non-public areas” are not necessarily private. While they are off-limits to the general public, other people — employees, contractors and delivery personnel — can access them.

In its brief, the Reporters Committee for Freedom of the Press argued the district court’s ruling should stand in order to ensure that journalists “are able to report on matters of public concern without facing unconstitutional impediments to their newsgathering activities. If whistleblowers (and other would-be sources) are punished for documenting evidence of dangerous, illegal, or unethical activity that they encounter, journalists will not be able to do their jobs effectively.  … Interference with newsgathering activities was not only the law’s result, but also it was the law’s intent.”

Several media organizations also filed briefs supporting the plaintiffs, including the NC Press Association and the Society of Professional Journalists. Policy Watch and its reporters are members of the NCPA; Lisa Sorg is also a member of SPJ.

Day One of trials for Alamance protesters: dismissed charges and/or no penalties

Protesters at a June 2020 “March for Justice & Community” in Graham – Photo: Anton L. Delgado

Trials of protesters who demonstrated in Graham last fall in support of the Black Lives Matter movement got underway on Wednesday, with the prosecutor dropping charges against two people, and the judge affirming misdemeanor charges against another individual without imposing a penalty.

The Alamance County town was the scene of multiple protests on a variety of topics in 2020. Triad City Beat tallied more than 70 charges filed against protesters last year from June through November, including those whose trials took place Wednesday. Among the events that gave rise to arrests:

  • a June 27 “Black Lives Matter” protest,
  • a July 25 NAACP “Call to Action” speaker meeting,
  • a Sept. 8  protest against the county jail’s COVID response,
  • a Sept. 26 “We Are Still Here” march around the courthouse where a Confederate monument stands, in which nine were arrested,
  • an Oct. 31 “march to the polls” in which law enforcement officers pepper-sprayed marchers and charged some people with failure to disperse on command.

In August, a  federal judge issued a preliminary injunction prohibiting a ban on protests around the courthouse that the sheriff’s office had sought to impose.

Judge Lunsford Long, a retired judge who is sometimes recalled to hear cases, presided over this week’s trials. An Alamance trial court coordinator told Policy Watch that Long will hear all the remaining protest cases.

Dionne Liles, the first to appear on Wednesday, was among dozens of protesters who showed up at a parking lot on Sept. 8, said Deputy Sheriff J. Giannotti. Liles said at the hearing that she and other demonstrators were “amplifying the voices of the people that were incarcerated” after COVID outbreaks were reported at the county jail and asking the Alamance County Sheriff’s Office to provide more PPEs to staff and inmates.

Liles represented herself. Judge Long dismissed the charge of assault on government officials or employees. Giannotti testified that Liles struck him with a sign, which she denied.

“My intentions were not… malicious, but to keep my eyes on what was happening to my friend,” Liles defended her reaction, “He is a man of color that was tackled by three officers, possibly more to the ground.”

While Long found Liles guilty of trespassing and resisting a public officer, the judge offered her a “prayer for judgment,” a unique North Carolina disposition for defendants where they won’t have the judgment entered against them. Her other charge of failure to disperse during the Oct. 31 protest will be resolved later in March.

Assistant District Attorney Kevin Harrison then dropped charges for two other cases where protesters were charged with impeding traffic in the “We Are Still Here” march. Harrison concluded that there was insufficient evidence after law enforcement officers testified.

Other demonstrators’ cases that involve the Sept. 8 and Oct. 31 protests will continue and roll over to the following court sessions. More than 20 additional protest-related trials are scheduled every Wednesday from March 3 to April 7, according to court calendars released by Alamance County District Court.