Courts & the Law

Center for American Progress highlights effects of NC judicial changes on judges of color

Lawmakers are hellbent on changing the judiciary one way or another before the 2018 elections, and though it’s still unknown what exactly will happen, the proposals that have been floated result in a whitewashing of the bench.

Judges of color are already underrepresented on the bench and a recent NC Policy Watch analysis of House Bill 717, which redraws judicial and prosecutorial districts, showed that many would be double-bunked under the proposal. Additionally, there are separate challenges judges of color would face under a merit selection proposal.

The Center for American Progress wrote about the disadvantages changes to the judiciary pose to judges of color.

“The state’s African American judges have found themselves caught in the crossfire of these political battles,” the article states. “People of color are already severely underrepresented in North Carolina state courts, and recent changes could be making the problem worse. Bills pending in the legislature could deepen the disparity and further entrench a conservative, white elite in the state’s judiciary. At a moment of deep divisions and doubts about American democracy, political decisions that could eliminate the few judges of color would only heighten the mistrust among communities of color with respect to the justice system and the political process.”

The article ties voting rights cases to the North Carolina General Assembly’s attacks on the judiciary. You can read it in full here.

Courts & the Law, News

Farm workers, civil rights groups file federal lawsuit over NC Farm Act

Farm workers and civil rights groups announced a federal lawsuit outside the legislature Wednesday over a recently passed law that inhibits farm workers from unionizing. (Photo by Carol Brooke)

North Carolina farm workers and a coalition of civil rights groups filed a federal lawsuit this week challenging a state law that inhibits the ability of farm workers to organize and make collective bargaining agreements with employers.

The lawsuit was brought on behalf of the only farm workers’ union in the state — the Farm Labor Organizing Committee (FLOC) — and two individual farm workers. It was filed by the Southern Poverty Law Center (SPLC), the American Civil Liberties Union (ACLU), the North Carolina Justice Center and the Law Offices of Robert J. Willis.

The suit argues that the North Carolina Farm Act of 2017, Senate Bill 617, impedes farm workers’ First Amendment right to participate in unions, and asserts that the law is discriminatory, as more than 90 percent of the state’s agricultural workers are Latino.

The groups are asking the court to block implementation of the law as litigation proceeds. They gathered Wednesday outside the legislature for a press conference about the matter.

“Politicians that are also growers shouldn’t pass self-serving laws simply because they don’t want their workers to unionize,” said FLOC President Baldemar Velasquez. “With the continuation of Jim Crow-era laws that aim to stop a now almost entirely Latino workforce from organizing, this is an affront to freedom of association and smacks of racism. Companies like Reynolds American should be embarrassed that growers in their supply chains are attacking the very farm workers who make their companies’ wealth.”

More than 100,000 farmworkers provide labor to North Carolina farms, helping to generate more than $12 billion for the state economy, according to the ACLU. The vast majority are Latinos and work seasonally, many under temporary visas.

SB617 bars farm worker unions from entering into agreements with employers to have union dues transferred from paychecks — even if the union members want it, and even if the employer agrees to the arrangement.

(Photo by Carol Brooke)

Because North Carolina is a so-called “right-to-work” state, dues deductions can only occur when individual workers choose to have dues deducted, according to the ACLU. Many of FLOC’s members are guest-workers who lack ready access to U.S. bank accounts, credit cards and other means of making regular union dues payments, and they therefore rely on dues transfer arrangements to pay their union dues. If those arrangements become invalid, the union will be required to divert most of its limited resources to collecting dues individually from each worker.

The law also prohibits agricultural producers from signing any agreement with a union relating to a lawsuit, such as a settlement in which an employer agrees to recognize a union, or a collective bargaining agreement that includes a promise not to sue. FLOC has used such voluntary agreements with employers to secure critical improvements in working conditions at farms, such as higher wages and an end to exploitative recruitment fees and blacklisting.

In addition, FLOC has successfully challenged tobacco giants, such as Reynolds American to acknowledge their responsibility for the conditions workers face in their supply chains. The new law introduces major obstacles to FLOC’s ability to renew its existing agreements and pursue more in the future.

(Photo by Carol Brooke)

“Farmworkers are among the lowest paid and most vulnerable workers in the state,” said Clermont Ripley, a staff attorney with the NC Justice Center’s Workers’ Rights Project. NC Justice Center is the parent organization of NC Policy Watch. “They arguably need a union more than anyone else. In passing the Farm Act, our legislature — staunchly opposed to organized labor and unquestioningly deferential to the interests of big business — has further weakened the ability of farmworkers to protect themselves from unscrupulous employers.”

The law’s primary sponsor was Sen. Brent Jackson (R-Duplin, Johnston, Sampson), who owns Jackson Farming Company and was recently sued for wage theft by Latino farm workers who were helped by FLOC.

Rep. Jimmy Dixon (R-Duplin, Wayne), an owner of Jimmy Dixon farm in Duplin County, was the only legislator to speak in favor of the anti-worker provisions in the bill on the House floor. He said the law was necessary because “there seems to be a growing wave of folks that are interested in farm labor.”

Courts & the Law, News

SCSJ’s Anita Earls to run for NC Supreme Court seat in 2018 election

Anita Earls, a civil rights attorney and founding Executive Director of the Southern Coalition for Social Justice, announced she would run for a seat on the state Supreme Court. (Photo by Melissa Boughton)

A prominent civil rights attorney announced Wednesday morning that she will make a bid to move to the other side of the bench next year.

Anita Earls, who is the Executive Director of the Southern Coalition for Social Justice (SCSJ), will run for a North Carolina Supreme Court seat in the 2018 election, challenging incumbent Justice Barbara Jackson, who is a registered Republican. Jackson’s eight-year term ends next year.

Earls, 57 of Durham, made the announcement at the Democratic Party headquarters on Hillsborough Street.

“In light of recent attacks on the independence of North Carolina’s judiciary, and on the right of all citizens to cast a ballot that is counted equally, it is clear to me that I have to not just talk the talk, but also must have the courage to walk the walk,” she said. “I understand the difference between being an advocate and being a jurist, and I want the opportunity to use my experience to help ensure equal justice for all North Carolinians in a new role.”

Prior to founding SCSJ, Earls was director of advocacy at the UNC Center for Civil Rights and director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, according to her online biographical information. She was a deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice during the Clinton Administration.

SCSJ will continue on, Earls said.

“I am so proud of the Southern Coalition,” she said. “We have strong leadership. The Board is engaging in an appropriate transition process and I’m just excited to see the things that they’ll be able to accomplish in the next 10 years.”

Earls has also served on the Equal Access to Justice Commission and the North Carolina Board of Elections. She has taught at Duke University, the University of North Carolina at Chapel Hill and the University of Maryland.

She is the lead attorney in North Carolina v. Covington, the state’s ongoing racial gerrymandering case, and for the League of Women Voters in a partisan gerrymandering case that went to trial last month in a federal court. She also led a challenge in state court to uphold North Carolinians’ right to vote even without a photo ID.

Earls will phase out her role in the ongoing cases by the end of the year so that she can campaign, she said. She said the qualification she hopes voters will evaluate most is whether she can fairly and faithfully apply the law equally to everyone whose case comes before the Supreme Court.

“I believe my record demonstrates that I have an unflinching dedication to the principle of equality before the law,” she added.

She noted later that she had sued Democrats and Republicans alike in the past.

Former North Carolina Gov. Jim Hunt and current U.S. Rep. G.K. Butterfield released statements endorsing Earls.

“Anita’s service to North Carolina is undeniable,” Hunt said. “She has been at the forefront of the fight for fair maps and voting rights in our state, and she has dedicated her life to achieving fairness, equality, and justice. I look forward to supporting Anita as she seeks to represent all North Carolinians from the bench of North Carolina’s Supreme Court.”

Butterfield said Earls has the intellect and integrity needed on North Carolina State Supreme Court.

“She understands the importance of an independent judiciary and will be a justice that will only make decisions based on the facts and the law,” he added. “As a former N. C. State Supreme Court Justice, I know Anita has the character and work ethic to serve with distinction. Anita will make us proud.”

Lawmakers have been taking aim at the independence of the judiciary in the last year. They passed measures that require judges and justices to run for election using party labels. After Justice Mike Morgan’s win in the 2016 election, the state Supreme Court was tipped to a 4-3 Democratic majority.

There was also a bill passed in the most recent special session that eliminates judicial primaries next year, which means anyone who meets state requirements to run for a Supreme Court seat can be put on the 2018 ballot. Jackson has already established her bid for reelection and Earls is the only other candidate thus far to announce her plans to run for the seat.

The last time a judicial primary was eliminated for a North Carolina Supreme Court seat was in November 2004. Justice Paul Newby won over seven other candidates with 22.59 percent of the vote, according to the State Board of Elections and Ethics Enforcement.

The candidate filing period for all 2018 judicial offices is from noon on June 18 to noon on June 29.

There are other changes that could be made before next year’s elections, including a potential merit selection plan that the Senate has been touting. Earls said the voters will ultimately make the decision about how judges are selected.

“I think it is so important that voters decide who our judges are, not politicians,” Earls said.

Courts & the Law, News

Special master in racial gerrymandering case releases first round of redrawn legislative districts

A special master appointed almost two weeks ago by a federal court to examine and potentially redraw parts of the state House and Senate maps released his proposed plan to correct unconstitutional racial gerrymanders.

Stanford Law professor Nathaniel Persily’s maps redraw Senate districts in Cumberland, Hoke and Guilford counties and House districts in Sampson, Wayne, Mecklenburg, Guilford and Wake counties.

The legislature already redrew state House and Senate districts to correct areas found by the court to be unconstitutional racial gerrymanders. The court, however, remained concerned about the constitutionality of several districts and ordered Persily to further examine and possibly redraw them.

His report is due to the court by Dec. 1. He wrote in the order released Monday that he released his plans early to “give the parties time to lodge objections and to make suggestions, as to unpairing incumbents or otherwise, that might be accommodated in the final plan to be delivered to the Court by December 1.”

Persily did not take account incumbency in the “draft plan” he released because the plaintiffs and legislative defendants only just released their incumbent lists last week — there are two lists because of a dispute about whether Larry Bell (D-Duplin, Sampson, Wayne) is an incumbent. He signed a declaration to the court that he is not running for reelection.

Both lists are the same with the exception of Bell’s name, which is included in the plaintiffs’ list but not the legislative defendants’.

The parties in North Carolina v. Covington are asked to “propose alterations” to the draft plan to incorporate incumbency. However, the final plan will only accommodate such changes if they do not degrade the courts’ specific orders to correct constitutional violations, Persily’s order states.

“Underlying the Court’s prohibition on examining election returns or prioritizing incumbency is reliance on a bedrock principle that the Special Master’s Plan shall be constructed in a nonpartisan fashion,” the document states. “This is not to say that the plan will not have partisan, incumbency-related, or other electoral effects — all redistricting plans do. Rather, the principles that guide the production of the plan must be nonpartisan in nature and the changes to the districts must be explainable on that basis. The Special Master’s Draft Plan was drawn without consideration of the location of incumbents’ residences, so that the incorporation of incumbency in the final plan can be achieved on a nonpartisan basis.”

Pictured are the special master’s proposed plans for Senate districts 19 (Cumberland) and 21 (Hoke) compared to GOP enacted redraws.

At first glance, Persily’s maps are obviously different than GOP lawmakers’ initial redraw with more compact districts and less squiggly lines. He explains the changes in each district in the Monday order.

In Senate districts 19 (Cumberland) and 21 (Hoke), Persily moved Hoke County north and took in all of Spring Lake “and just enough of Fayetteville so as to comply with one person one vote.” He wrote that by drawing the districts in that way, it avoided “the jutting arm into Fayetteville.”

In Guilford County, Persily wrote that his lines were more compact.

“The newly drawn district is contained almost completely within the city (CDP) of Greensboro, and is made up of whole precincts,” the order states.

Persily smoothed out the border in House district 21, which contains Sampson County, “thereby avoiding the selective inclusion of heavily African American precincts that characterized the 2011 and 2017 versions of the district. The District continues to retain its configuration in Wayne County, which is principally defined by the boundaries of Goldsboro.”

Pictured is the special master’s plan to redraw House district 57, Guilford County.

He moved House district 57, Guilford County, north and west to create a compact district in north Greensboro, the order states. Previously, the district retained “a backwards ‘L shape’ along the eastern side of Greensboro, according to the Court, it perpetuates the racial predominance of its predecessor district by over-concentrating the African American population in the area.”

Unlike the other House districts, areas in Wake and Mecklenburg counties were redrawn to comply with a state Constitution provision that prevents lawmakers from mid-decade redistricting.

In his order, Persily requests that the parties in Covington submit their proposed objections and revisions by the end of this week with replies due by Nov. 21.

GOP legislative defendants objected to Persily’s appointment. The state of North Carolina was ordered to pick up his tab at $500 per hour, or half his usual rate.

The federal judges presiding over the case in the U.S. District Court for the Middle District of North Carolina are U.S. District Court Judge Catherine Eagles and Thomas Schroeder and 4th Circuit Court of Appeals Judge James Wynn. Eagles and Wynn were appointed by former President Barack Obama and Schroeder by George W. Bush.

agriculture, Courts & the Law, Environment

In a setback to Murphy-Brown, hog nuisance suits can go on, federal judge rules

Ham produced by Smithfield, which is part of Murphy-Brown (Photo: Amazon)

This story is part of a larger series on the national pork industry that NC Policy Watch is co-publishing with Environmental Health News. The series, Peak Pig, begins at EHN today.

On Wednesday, Policy Watch will examine the history of nuisance suits, plus swine waste-to energy technologies, and more.

The 26 nuisance lawsuits against hog giant Murphy-Brown can proceed to trial, a federal district court judge ruled last week. While the decision marks a brief victory for the residents living near the industrialized hog farms, the litigation might be the last of its kind in North Carolina.

In his 33-page ruling, Senior US District Court Judge Earl Britt undercut some of Murphy-Brown’s arguments, while allowing others: Britt did seal several pieces of evidence because it purportedly contained confidential business information. And he agreed to hear a motion in December that would separate the cases.

That strategy could make the lawsuits more expensive for the plaintiffs. And should one plaintiff lose, legal precedents might arise in court that could then jeopardize future rulings.

Mark Anderson, attorney with McGuire Woods, which is representing the pork producer, did not return an email seeking comment.

But Britt did set a tone that partially favored the plaintiffs. He discounted Murphy-Brown’s contention that their farms are immune from nuisance litigation under the state’s Right to Farm law. That law essentially shields industrialized livestock operations from nuisance suits if the plaintiffs have “moved to the nuisance”; in other words, precedence generally goes to whoever was there first, the residents or the farm.

In this case, many of the plaintiffs are living on land that has been in their families for generations.

“Their land use had been in existence well before the operations of the subject farms began,” Britt wrote. “The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court’s analysis.”

These lawsuits against Murphy-Brown — the nation’s largest pork producer — prompted the creation of House Bill 467. Now law, the controversial measure prohibits plaintiffs who win nuisance suits from being awarded compensatory damages, including money to pay for medical treatment related to a farm’s odor, flies and noise.

Instead, winning plaintiffs can recover only damages that cover the devaluation of their property. Given that their property values could already be decreased because of the proximity to an industrialized farm, that amount of money would likely be negligible in comparison. Plaintiffs can still be awarded punitive damages, but those claims are much harder to prove.

The justification, lawmakers said, was that the number of lawsuits would supposedly financially hobble the billion-dollar agribusiness.

“Industry can’t sustain this,” said Sen. Brent Jackson during a debate on the bill. “Without livestock there would be tumbleweed rolling down city streets.”

Considering the political and financial muscle of Murphy-Brown, that scenario is unlikely.

At one point this year, it was uncertain if the 26 lawsuits could even go on. Under the original version of HB 467, the litigation would have been tossed. That’s because the bill language would have applied the law retroactively, to cases that had already been filed. The suits were filed in 2015.

The retroactive provision threatened the bill’s viability, so it was struck. Nonetheless, earlier this fall Murphy-Brown tried to halt the lawsuits by arguing that the state legislature intended to include the retroactive language, but didn’t. Britt’s ruling doesn’t address that motion specifically, but by allowing the cases to go to trial, he appears to discount it.

Britt’s decision also undercuts some state lawmakers’ arguments that the courts needed clarity from the legislature. “North Carolina law is not clear on these kinds of nuisance issues,” said State Rep. Jimmy Dixon during a committee debate.

“Judge Britt could deduce from existing precedent” the legal remedies available for the plaintiffs,” said Will Hendrick, staff attorney for the NC Pure Farms Pure Waters Campaign, this week. “He didn’t need guidance.”

Judge Britt will hold a hearing on several motions on Dec. 4, at the federal courthouse in Raleigh.


Hog Order Britt Nov by Anonymous B0mRtPKjko on Scribd