Courts & the Law, News

NC Board of Education, Superintendent Mark Johnson to return to court later this week

The North Carolina Board of Education and State Superintendent Mark Johnson will be back in court Thursday.

The three-judge panel that ruled in favor of Johnson in a lawsuit over a transfer of power from the Board will hear a motion for a temporary stay pending the Board’s appeal. According to the motion, counsel for both parties spent six weeks trying to come to an agreement for a temporary stay but were unsuccessful.

“The parties could not have tried any harder to reach an agreement, and the Board commends the SPI, the SPI’s in-house counsel, and the SPI’s outside counsel for their diligence and professionalism throughout the course of these lengthy discussions,” it states.

When the court initially rendered its decision in the lawsuit, the judges stayed it for 60 days. The deadline for that stay is Sept. 12, so the Board will be asking for an extension in court Thursday.

Without a temporary stay pending the Board’s appeal, the law in question that transfers power from the Board to Johnson will move the entire $10 billion public school system under the control of a single individual for the first time in North Carolina history, the motion states.

“This seismic shift will generate enormous disruption for our State’s public schools” the motion adds. “Worse, this seismic shift would occur overnight, without any transition period whatsoever.”

The Board gave examples, including that Johnson would be immediately be empowered to unilaterally fire over a thousand state employees, including key senior policymaking leaders. It said Johnson also could immediately decide whether certain state public school system positions should be exempt from state personnel laws, execute new statewide contracts for the public school system, and jeopardize the Board’s ability to manage more than 150 existing contracts involving tens of millions of dollars.

You can read the full motion here.

The court hearing will begin at 11 a.m. Thursday in courtroom 10C at the Wake County Courthouse.

Courts & the Law, News

Opposing lawmakers debate judicial redistricting ahead of next week’s House committee meeting

Representatives Justin Burr (R-Montgomery, Stanly) and Marcia Morey (D-Durham) debated Thursday night on Capital Tonight about judicial redistricting.

New judicial and prosecutorial maps that would overhaul the state’s court system will be moving full-steam ahead next week as the House judicial redistricting committee meets for the first time.

Rep. Justin Burr (R-Montgomery, Stanly) introduced the maps via Twitter at the end of the long session but things were put on hold through the end of the budgeting process. He was heavily criticized by both Democrats and the legal and judicial community because he created the maps in secret without any input from the judicial branch.

He’s also been accused of politicizing the judiciary through the maps, which would change the way all the state’s judges and prosecutors are elected. It’s been reported that Burr is pushing for redistricting to add more Republicans to the bench.

Rep. Marcia Morey (D-Durham), who is a former longtime district court judge, has been an outspoken opponent of the maps. She has expressed concern about the pace at which judicial redistricting is moving and what such an overhaul would mean for sitting judges and the cases they preside over.

Burr and Morey appeared Thursday night on Spectrum News’ Capital Tonight to debate the issue ahead of next week’s meeting.

Burr took the first question about whether the old judicial maps favor Democrats and said that the last time there was overall judicial reform was about 60 years ago. Since then, he added, changes have been piecemeal, which has led to a “disjointed system.”

He said the old districts were drawn to favor Democratic judges and that the new maps would bring things back to the center, creating a more fair process for voters.

Illustrations by Nelle Dunlap

It moves it back to the center and if that gives it the appearance that it’s more favorable to Republicans, it’s only because we’re cleaning up old gerrymandered districts that disenfranchise the voters of this state,” he said. 

Morey responded that she didn’t buy his argument. She said judges aren’t political in what they do; they’re non-partisan.

This is a huge transformation proposal for our court system and it can’t be done suddenly, tweeting out maps and within 48 hours having a committee hearing,” she said. “Everything will be changed if we adopt these maps.”

She said she’s studied the maps and it will make things in the judiciary much more political. Incumbent judges will be forced to run against each other; half of voters in a district won’t be able to vote for a presiding judge and it will create “tremendous upheaval.”

“I’ve talked to judges all over this state — I know Rep. Burr has — and they are unanimously they are opposed to this,” Morey said.

She agreed with Burr that perhaps some changes were needed but said the process has to be slow and involve all stakeholders.

Burr said he doesn’t think the status quo is acceptable.

How much longer should we wait to fix these districts?,” he asked.

He said his meetings with judges and judicial leaders across the state have gone well and that he’s reviewing some “tweaks” they’ve provided.

Ultimately though, he said, judges are welcome to provide their feedback but the Constitution is clear that the General Assembly establishes judicial districts in North Carolina.

This is a policy decision for the general assembly to make,” he said. “This is a legislative decision. We are the policy-making body.” 

He criticized many of the judges across the state because they had expressed concern about incumbency protection.

“I don’t think that it’s right, but that seems to be the priority of some of them, is how do they protect their cushiony seat that they have,” Burr said. “That’s not my concern; my concern is making sure the judicial system, the judicial branch and these districts are set up for the benefit of the people of this state not for the judges.”

It should be noted that despite Burr’s comment, he voted just weeks ago for Republican lawmakers to use incumbency protection as a criteria when redrawing legislative districts to correct unconstitutional racial gerrymanders. It was a criteria that worked out well for Burr, who was at risk himself of being double-bunked in the new legislative maps — coincidentally though, he was not.

Morey responded to Burr’s argument about incumbency noting that sitting judges were very committed to the judiciary.

The longer you’re a judge, you learn your craft, you interpret the laws, you become better and better and to suddenly have incumbents running against each other, you’re going to lose quality from the bench,” she said. 

She added that there were many disproportionate districts in the new judicial maps that needed to be looked at closer.

I think there’s a very big partisan plot against this, and we’re not thinking judicial, were not thinking the system of justice,” she said. “We’re going into politics.”

You can watch the entire news segment here.

The House judicial redistricting committee is scheduled to meet at 1 p.m. Tuesday in room 544 of the Legislative Office Building. The meeting is open to the public and the audio will be live-streamed here.

The judicial maps are expected to pass the House before the end of the year, but it’s unclear if the Senate will be on board. Senate President Pro Tem Phil Berger has been testing the waters with a merit selection process, which would do away with judicial elections altogether. You can read more about that here.

agriculture, Courts & the Law, Environment

Waterkeeper Alliance sues state agriculture department over public records request


Steven Troxler, commissioner of the NC Department of Agriculture and Consumer Services (Photo: NCDACS)

The Waterkeeper Alliance, known for its role as an environmental watchdog over industrialized hog farming practices, has filed a complaint against the NC Department of Agriculture and Consumer Services for allegedly violating the state’s Public Records Act.

The dispute centers on whether the agency lawfully charged the alliance more than $2,000 to merely inspect public documents. The documents in question were related to potential flood damage from Hurricane Matthew on hog and poultry farms.

A department spokesperson could not be reached for comment, although it is common for agencies to refrain from speaking about ongoing litigation.

The issue dates back to earlier this year, when the alliance filed a public records request on Jan. 20. It asked to inspect “all communications” with the EPA, USDA, FEMA, and any state, city, county government ‘as part of the agriculture’s review, consultation of response to flooding of agricultural operations in North Carolina related to Hurricane Matthew,” which had occurred the previous October.

The alliance also asked to inspect related to the department’s emergency response, proposals and preparedness plans as they related to storm-related flooding of these operations. The group had planned to copy or scan the documents using its own portable equipment.

The group filed a similar request with the NC Department of Environmental Quality, which produced the records in March and allowed the group to inspect them without charging fees.

The records are of interest because when Hurricane Matthew brought historic floods to eastern North Carolina, there were concerns over the integrity of the area’s 3,000-plus hog waste lagoons. Agriculture Commissioner Steven Troxler has maintained no lagoons were breached, but advocates, some of whom flew over the area, said they observed floodwaters topping the brim of some structures.

On March 3,  2017, Tien Cheng, an attorney with the agriculture department, responded that it would require more than 250 hours to fill the request. Cheng estimated that at $18 an hour — the pay rate for a full-time administrative assistant — the alliance would be charged at least $4,000 to inspect the records. However, a week later, a different agriculture department attorney called the alliance and reversed course, saying the group could inspect the records for free.

Cheng went on to write agencies can charge a special service fee when a request requires extensive use of resources. But the term “extensive” has not been defined. And in 2013 and 2014, former Gov. Pat McCrory exploited that vague language to revise public records policy for eight state cabinet agencies. Designed to reduce the number of records requests, those revisions were emblematic of the tension between the McCrory administration and the media and law firms seeking information.

Read more

Courts & the Law, News

NC Supreme Court takes up redistricting, power struggle between Cooper, legislature

The North Carolina Supreme Court heard two major cases this morning — one about redistricting and voting rights and the other about the legislature’s efforts to diminish the Governor’s powers.

In Dickson v. Rucho, a challenge to state legislative and congressional maps, the plaintiffs asked for the case to be remanded back to the trial court for a judgment in their favor.

“We don’t yet have a remedy ordered by a state court,” said one of the plaintiff’s attorneys, Anita Earls, who is Executive Director of the Southern Coalition for Social Justice.

Earls argued that when the court decides federal issues that are contrary to binding precedent from the U.S. Supreme Court, as it did in Dickson and North Carolina v. Covington, the U.S. and North Carolina Constitutions impose a duty to conform its decision to federal law and enter a judgment for the plaintiffs.

She also argued that the state trial court needed to address state constitutional violations, whereas the federal court could not. Earls called the trial court’s finding erroneous and said the plaintiffs deserved a remedy after their rights were impacted by the unconstitutionality of the maps.

“A violation has been shown, it’s now time for remedial proceedings,” she said.

The attorney for legislative leaders, Michael McKnight, argued that the plaintiffs don’t have the ability to file for a remedy because the case is moot.

“There is no case or controversy right now with regard to the 2001 maps they’re challenging,” he said, noting that those maps can’t be used again because of the federal courts’ rulings.

McKnight added that if there is a problem with the new districts once enacted, the plaintiffs would have to file a new lawsuit.

Special Deputy Attorney General Alec Peters argued for the state that the case should be remanded back to the state trial court for a judgment in favor of the plaintiffs.


The state Supreme Court judges also heard argument in Cooper v. Berger over the General Assembly’s changes to the State Board of Elections and State Ethics Commission, now knows as the State Board of Elections and Ethics Enforcement.

Jim Phillips, the attorney for Gov. Roy Cooper relied on the Separation of Powers clause of the North Carolina Constitution.

He said it is “crystal clear” after an examination of the functions and duties of the Bard that it is executive in nature. Because of that, Cooper should be able to appoint a majority of the Board so that they share his views and priorities.

A provision of the law creating the new Board allows for former Gov. Pat McCrory’s Board of Elections appointment Kim Westbrook Strach to remain Executive Director over the new Board.

Members of the new Board are to be split evenly between Republicans and Democrats, whom Cooper would be required to choose from a slate of people approved by the heads of each party. Phillips said given the choice, Cooper wouldn’t appoint anyone from the list already released.

An example Phillips of an executive function that the Board carries out is early voting. He said Cooper has said he wants to expand early voting, but a Board that doesn’t share his views and priorities could prevent that from happening.

Noah Huffstetler III, who represents legislative leaders, said the General Assembly has the final decision making role in the Governor’s role with respect to the Board.

He said the restructuring of the Board was to better ensure its independence and quasi-judicial nature. He added that Cooper’s argument was “stunning” in that he wants to control people so that they are “robotically inclined to follow his views and priorities.”

“That was not the legislative intent of that statute,” he said of the Constitution.

Phillips said the case was not about a challenge to the the legislature’s restructuring of the entire board.

“The Governor’s challenge is to the General Assembly’s appointment of the Executive Director and the taking from him the ability to appoint a majority of members who share his views and priorities.”

He added that if the Supreme Court remanded the case back to a lower court, they would only end up arguing again back at the high court.

Courts & the Law, News

Local Jones County election process to change after federal Voting Rights Act lawsuit settlement

As part of a lawsuit settlement over a Voting Rights Act violation, Jones County Board of Commissioners will be elected in single member districts instead of at large.

Today is a new day in Jones County, according to a plaintiff in the first federal Voting Rights Act case filed this year.

A settlement was reached Wednesday in a lawsuit filed on behalf of four Jones County residents against the Jones County Board of Commissioners, its members and the Jones County Board of Elections.

The lawsuit alleges that the at-large voting system the Commissioners have long been elected under violates Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices. The system has the effect of denying the African-American voters of Jones County an equal opportunity to elect candidates of their choice, according to the suit.

The settlement will require Jones County to move to a single-member voting system that splits the county into seven areas, which includes two districts in which African-American voters constitute a majority of the voting-age population.

“For too long we have felt like we didn’t have a voice in our local government,” said lifelong Jones County resident Elaine Strayhorn, one of the plaintiffs. “We love this place because it’s our community, so we deserve to have our voices heard too. As a community, we welcome this change.”

Under the current voting system, five Commissioners are elected at-large to four-year terms. An African-American candidate has not succeeded in winning a seat on the Board since 1994.

African-American residents make up about one-third of the county’s total population and about one-third of the voting age population.

The election changes will take place in 2018, and Jones County is enjoined from conducting any elections for the Board using the existing at-large system. In drawing the districts, boundaries were to be compact and not in derogation of traditional redistricting principles, according to the settlement.

As part of the agreed remedy, Jones County will also pay the plaintiffs $10,000 to absolve them from any future claims arising from the matter.

An attorney for the plaintiffs, Jonathan Blackman, of Cleary Gottlieb, said Jones County expressed an interest early on in the litigation process to an agreed resolution.

“This settlement is one that really remedies a longstanding violation of the Voting Rights Act in Jones County,” he said during a teleconference about the settlement.

The complete details of the settlement and the makeup of the seven new districts can be found here.