Courts & the Law, News

ICYMI: Cooper files lawsuit against legislative leaders over Court of Appeals reduction, Industrial Commission appointments

The power struggle between Gov. Roy Cooper and legislative leaders continued Friday when he filed another lawsuit accusing them of writing laws that impede on his powers.

The 42-page lawsuit challenges House Bill 239, a measure passed into law that reduces the Court of Appeals from 15 judges to 12. Cooper vetoed the bill but Republican lawmakers overrode his veto.

Cooper alleges in the suit that the bill violates the North Carolina Constitution because it shortens the terms of three Court of Appeals seats to fewer than eight years.

HB239 also purports to limit Cooper’s power to make vacancy appointments to the bench, the suit states. Legislators claimed the workload of the court had been reduced, “but that is an obvious pretext without any factual basis.”

“Upon information and belief, the true purpose was to prevent the Governor from having the ability to fill three vacancy appointments in the next three years for seats in which incumbent judges will reach the statutorily mandated retirement age,” the suit states.

Cooper is also challenging part of Senate Bill 4, which was passed during a special session in December. He alleges that part of the law allowed former Republican Gov. Pat McCrory to make unconstitutional appointments to the North Carolina Industrial Commission (NCIC).

The lawsuit explains further:

“On December 16,2016, the day Session Law 2016- 125 was signed into law, Governor McCrory appointed [Yolanda] Stith, the spouse of his chief of staff, to fill an already-existing vacancy on the NCIC. The vacant seat on the NCIC had a term scheduled to end on April 30, 2019. See N.C. House Joint Resolution 978 (April 27, 2016). Stith’s appointment was approved by Defendants on the same day. See N.C. House Joint Resolution 24 (December 16, 2016).

Accordingly, as soon as the vacancy on the Industrial Commission was filled — for a nine-year term running through April 30, 2025 — the language of Section 97-77(al) reverted to its original form. As with the appointments prior to this one, any future vacancies on the NCIC will be filled by an appointment only for the remainder of the unexpired term.

Thus, the net result of the NCIC Privilege is that Section 97-77 (al) was left unchanged, but Stith — and, by statutory design, only Stith — received the exclusive privilege of a nme-year term on the Industrial Commission valued at more than $1 million.”

Cooper said the law violates the Separation of Powers clause of the Constitution.

Senate President Pro Tem Phil Berger’s spokeswoman, Amy Auth, told the News & Observer that the lawsuit only benefits Cooper.

“In his State of the State Address, Gov. Roy Cooper said, ‘In Raleigh, partisan battles, power struggles and lawsuits might grab the headlines, but we have to work together where we can, to look beyond ourselves to see what’s right for the state, regardless of who’s in power’ — so we don’t understand why he feels suing three times in less than six months is a good way to accomplish that goal,” she told the newspaper.

Courts & the Law, News

House committee debates, approves bill that would create delay for asbestos victims seeking recovery

Sen. Michael V. Lee (R-New Hanover) discusses a bill he sponsors that would affect asbestos-related cases. (Photo by Melissa Boughton)

North Carolina lawmakers are dipping into federal issues of civil law to help national stakeholders gain momentum in delaying asbestos cancer victims from getting recovery funds.

Members of the House II Judiciary Committee voted 6-4 along party lines to advance Senate Bill 470, which would require plaintiffs in asbestos claims to disclose information about bankruptcy trust claims in personal injury actions, including the amount of monies awarded “or reasonably expected to be awarded.”

There was about an hour of debate, which mostly consisted of lawmakers asking questions of Greensboro attorney Janet Ward Black, an opponent of the bill, and Raleigh attorney Kirk Warner and D.C. attorney Mark Behrens from the U.S. Chamber Institute for Legal Reform, both proponents of the bill.

Sen. Michael Lee (R-New Hanover) carried the bill and also tried to answer some questions. He told committee members that the bill received broad bipartisan support in the Senate and that it promotes transparency on behalf of asbestos victims to the court.

Black said the law is a paper tiger — there aren’t any asbestos cases filed in North Carolina state court. By the state passing such a law, it helps the asbestos industry, which is behind the law, gain momentum to get it passed in states where there is pending litigation.

Greensboro attorney Janet Ward Black speaks Tuesday at a House committee meeting against a bill that would affect asbestos cases. (Photo by Melissa Boughton)

“They would like to color in North Carolina on that map,” she said, referencing a map that Lee showed committee members of other states that passed similar laws.

The real end result of the bill, Black said, is to delay dying people from getting the money they are owed for recovery.

“This hurts people who are dying of asbestos disease because it is an effort by companies to complicate the process and delay, delay, delay,” she said.

Cases involving North Carolinians who have asbestos disease are filed in federal court and are very isolated, according to Black. There are about 50 cases currently pending in federal court — an estimate on the high side.

North Carolina is a “contributory negligence” state that does not require companies to pay recovery funds to victims who made a decision not to protect themselves from asbestos and requires a bigger burden of plaintiffs to prove wrongdoing.

Warner and Behrens said SB470 would prevent current asbestos victims from robbing future victims of recovery funds, insinuating the current system makes it easier for double-dipping.

Debate, at times, got very deep into complicated tort law and civil procedure.

The bill was successfully amended by Rep. Joe John (D-Wake), to make it so it wouldn’t affect pending claims, and Rep. Pricey Harrison (D-Guilford), to eliminate Section 2, which requires plaintiffs to provide the amount of consideration paid for a release or covenant not to sue, including any monies awarded or reasonably expected to be rewarded from a bankruptcy trust.

Courts & the Law, News

Court of Appeals 50th anniversary celebrates current, former judges

Current state Court of Appeals judges, Supreme Court justices and former judges gathered for a picture Thursday at a ceremony celebrating the appellate court’s 50th anniversary. (Photo by Melissa Boughton)

The people’s working court turned 50 this year and current and former judges and staff gathered Thursday to celebrate their accomplishments.

Walking through the halls of the Court of Appeals before and after the ceremony was just like being at a family reunion. Judges who gathered for the event were smiling and laughing, hugging old friends and making new ones and sharing stories.

“There is much for us to celebrate today,” said former Chief Judge John C. Martin.

He was one of three former chief judges who spoke to a full room during the ceremony. He pointed out the judges’ portraits on the wall and said he was reminded of the great judges who led the way for the Court of Appeals to become what it is today.

He spoke about the work of the court and about the collegiality and professionalism among the judges.

“Most judges left their differences at the doorstep,” he said. “They came together to work as colleagues, as judges, not as male or female, not as Republican or Democrat, not as black or white.”

Martin said their work together led to the court being recognized as one of the most efficient intermediate appellate courts in the country at a time when the judges were some of the lowest paid in the country.

He added that no matter what the challenge was over the years, the court overcame, and “now, it appears that the court’s efficiency will face another challenge.”

Martin was referring to the General Assembly’s recent decision to reduce the Court of Appeals from its current 15 judges to 12. He was the only speaker who referenced the law specifically, though a number of the other speakers subtly addressed it.

“But even in the face of that, I have no doubt this court will rise to whatever challenge,” Martin said.

State Supreme Court Chief Justice Mark Martin said over the past 50 years, the Court of Appeals has exceeded every expectation.

State Supreme Court Chief Justice Mark Martin made remarks Thursday at the Court of Appeals 50th anniversary event. (Photo by Melissa Boughton)

The court through its judges, law court and staff, he said, handles approximately 2,300 appeals per year and each judge writes over 100 opinions per year. The court renders the final decision in about 95 percent of all appeals, he added.

“We really appreciate your work ethic and being such effective guardians of the rule of law,” he said. “This court’s workload is even more impressive when you consider how few judges we have when compared to other states of similar populations.”

Martin pointed out that the Michigan Court of Appeals has 28 judges, Tennessee appellate court has 24 and Ohio’s has 69.

“For those who are challenged at math, I want you to observe that there are 15 judges up here for the ninth most populous state in the country, and I find that to be an amazing statistic,” he said.

The state Court of Appeals is currently comprised of Chief Judge Linda McGee and Judges Wanda Bryant, Ann Marie Calabria, Rick Elmore, Donna Stroud, Robert Hunter Jr., Chris Dillon, Mark Davis, Richard Dietz, John Tyson, Lucy Inman, Valerie Zachary, Philip Berger Jr., Hunter Murphy and John Arrowood.

Gov. Roy Cooper signed a proclamation declaring Thursday the official 50th anniversary of the Court of Appeals. (Photo by Melissa Boughton)

Gov. Roy Cooper thanked the current judges and the former ones in the audience for their commitment to public service. He said it was his deep honor to attend the ceremony and signed a proclamation recognizing the day as the 50th anniversary of the State Court of Appeals.

“I think all of you know and appreciate what a strong, fair, independent judiciary means to our system of government,” he said. “It makes us the greatest country in the world and I believe the greatest state in the country.”

The former judges who spoke recalled how much they loved serving on the court and spoke fondly of the camaraderie on the Court of Appeals.

“My service on this court has been a singular honor, a professional high point,” said former Chief Judge Sidney Eagles Jr. “I enjoyed almost all the work and all the friendships.”

Former Chief Judge S. Gerald Arnold said he learned a lot during his time on the court and spoke of the importance of collegiality and judicial decorum.

He added of the ceremony honoring themselves, “I do think we are entitled to brag on ourselves a little bit.”

There was a documentary about the Court’s history shown at the ceremony, and Walter Brock Jr., the son of the late former Judge Walter Brock, was the last to make remarks.

Brock said he has a personal connection to both the history and the future success of the court, which was not and is not inevitable.

His hopes for the future include that the court remains accessible, friendly and helpful to the Bar, that all the judges, regardless of the size of the court and the workload, make time to enjoy the camaraderie and that the relationship between the Court of Appeals and the state Supreme Court remain solid.

The ceremony ended with a dedication of a new judges’ portrait wall.

Courts & the Law, News

Majority of House lawmakers pass raise the age bill after debate about money, crimes included

House lawmakers voted Wednesday 104-8 to pass legislation to raise the age of juvenile prosecution from 16 and 17 years old to 18 years old. (Photo by Melissa Boughton)

House lawmakers overwhelmingly passed “Raise the Age” legislation Wednesday afternoon after a little over an hour of debate.

The vote for House Bill 280 was 104 to 8. The Representatives who voted against it are James Boles Jr. (R-Moore), Mark Brody (R-Anson, Union), George Cleveland (R-Onslow), Jeff Collins (R-Franklin, Nash), Jeffrey Elmore (R-Alleghany, Wilkes), Carl Ford (R-Cabarrus, Rowan), Larry Pittman (R-Cabbarus) and Sarah Stevens (R-Surry, Wilkes).

The bill raises the age of juvenile prosecution from 16 and 17 years old to 18 years old for misdemeanors and low-level felonies, or F through I felonies. Juveniles who commit violent felonies or traffic violations would still automatically be transferred to the adult court system.

District attorneys, under HB280, would otherwise be able to petition judges to transfer teens to adult court if necessary.

North Carolina is currently the only state in the nation that punishes 16 and 17 year olds as adults.

The two biggest concerns discussed on the floor were that the bill includes low-level felonies — offenses that include involuntary manslaughter and and assault on an executive, legislative or court officer — and felonies.

“I came to Raleigh to try and protect our citizens and defend their rights; I don’t believe we can do that by going soft on crime,” Pittman told his peers.

He told a story about his stepfather being targeted by a group of teenagers who vandalized an older home that he was fixing up, and how he didn’t believe they were punished harshly enough and how some time after everything, the house was “mysteriously” burned to the ground and nobody was ever charged for that.”

“This case is a good example of what’s wrong with this bill,” Pittman said. “We will be telling the victims of crime that it’s no big deal, just because the perpetrators are under 18. That’s ludicrous.”

New Rep. Marcia Morey (D-Durham), a former District Court judge, said HB280 was by no means soft on crime.

“[Juvenile court] is much more intense, they have to come back month after month; the family is involved, home electronic monitoring can be involved,” Morey explained. “They’re supervised, they get treatment; the recidivism rate in our juvenile system is three times less than if they come in front of me for two minute and I slap a fine and suspended jail time on them.”

She added that the bill is simple.

“It is saying 16 year olds and 17 year olds are still children,” she said. “In almost every other aspect of our laws, if you’re under 18, you’re a minor. You can’t get a contract, you can’t vote, you can’t drink, you can’t get a library card without your parent’s permission.”

Rep. Carla Cunningham (D-Mecklenburg) explained that sometimes when juveniles commit crimes, there are a lot of other things in their life that are out of their control. She gave a heartfelt speech about the time she spent as a “floater child” between homes and schools.

Rep. Carla Cunningham (D-Mecklenburg) spoke Wednesday about her experience as a juvenile. (Photo by Melissa Boughton)

“Most of you in this chamber really don’t know me,” she started. “I wasn’t raised by my father, never met him; I wasn’t raised by my mother. It was a village that raised me. By the time I graduated high school, I had been to 22 schools. I was what you call a floater child, not a foster child. I floated between relatives. By the time I was 13 years old, I had juvenile issues. I don’t want you all to think differently of me than what you do, but I did. I was out of control — numerous reasons, numerous issues, poverty and other issues. But it happens.”

Cunningham said if they were doing what they were supposed to be doing on the preventative side, helping kids, a lot of whom have mental health issues, and helping their families, it would keep kids out of the criminal justice system.

“We all make mistakes, young and old, but there’s one thing that has been scientifically proven: it’s that the brain has not been fully developed until after 21 years old,” she said. “This is a good start.”

Rep. Chuck McGrady, who is carrying the bill as one of the sponsors, tried to quell his colleagues’ concerns about money, promising to work with them as legislation moves forward. He said the juvenile justice system has already cut from its budget over the years.

“Where’s the money going to come from? It’s going to come from the budget,” he said.

After the bill passed, he took to social media to thank the bill co-sponsors and former legislator Marilyn Avila, who has carried past bills.

Raise the age legislation has been in the works for a long time but it hasn’t had the kind of bipartisan support in the past that HB280 has garnered. That’s partially because of a recommendation from N.C. Supreme Court Chief Justice’s Mark Martin’s Courts Commission, which studied the issue and worked to compromise with many stakeholders.

The ACLU of North Carolina commended the House lawmakers for passing the bill.

“Sending kids into the adult criminal justice system puts their safety and future at risk and harms North Carolina’s communities in countless ways,” said Susanna Birdsong, Policy Counsel for the organization. “This bipartisan House vote is a hugely important step toward fixing a long overdue injustice that now exists only in North Carolina. We stand with a broad coalition of North Carolinians in urging the Senate and Governor Cooper to pass this much-needed measure into law and finally do the right thing for North Carolina and its young people.”

The bill will now head to the Senate, where its expected to drum up a similar debate about whether it should include some felonies or only misdemeanors.

Courts & the Law, News

Hearing set for end of June in State Board of Education lawsuit

A three-judge panel will hear arguments in the State Board of Education’s lawsuit against North Carolina and Superintendent of Public Instruction Mark Johnson at 10 a.m. June 29.

The notice of hearing was filed Monday in the Wake County Superior Court.

The State Board of Education sued North Carolina just before the New Year over legislators’ action transferring power from the Board to Johnson, a recently elected Republican.

House Bill 17 is in conflict with Article IX, Section 5 of the North Carolina Constitution, which expressly confers certain “powers and duties” on the Board.

Because of the conflict with the Constitution, experts have said that the State Board of Education’s argument is strong and they expect them to prevail.

The State Board of Education has requested a summary judgment and preliminary injunction in the case, and the state has requested to dismiss the case. Johnson has also requested a summary judgment.

State Supreme Court Chief Justice Mark Martin appointed Martin appointed the following judges to preside over the case: Judge Forrest Donald Bridges, who is registered to vote as a Democrat and presides in Cleveland and Lincoln counties; Judge James F. Ammons Jr., a former Democrat now registered as unaffiliated who presides in Cumberland County; and Judge Martin B. McGee, a Republican who presides in Cabarrus County.

The hearing will be held in the courtroom of the North Carolina Court of Appeals building at 1 West Morgan Street in Raleigh.