Courts & the Law, News

State Board of Education will appeal constitutional challenge decision favoring Superintendent

The State Board of Education announced today that it will appeal a court decision handed down last week that allows newly elected Superintendent Mark Johnson to be in control of the state’s public education system.

A three-judge panel issued its ruling Friday that the Board of Education did not meet its burden of proof when arguing that lawmakers were unconstitutional when transferring power from the Board to Johnson.

Bill Cobey, the chairman of the State Board of Education, said earlier this week that he was disappointed about the court’s ruling but couldn’t speak further about it until after the Board’s meeting.

When asked about the appeal, he responded, “I can’t guarantee anything because I’m only first among equals.”

Although the panel ruled in favor of Johnson, it left in place a stay preventing the law from taking effect for 60 days to allow for an appeal.

Courts & the Law, News

ICYMI: Judges rule Board of Education failed to meet burden of proof in challenge to transfer of power case

DPI Superintendent Mark Johnson

The State Board of Education did not meet its burden of proof recently when arguing that lawmakers were unconstitutional when transferring power to newly elected Superintendent Mark Johnson, according to a three-judge panel.

The panel that heard arguments in NC State Board of Education v. State of NC and Mark Johnson at the end of June issued its ruling Friday in favor of the state and Johnson, although a stay preventing the law from taking effect will remain in place for 60 days to allow for an appeal.

In its memorandum, the panel cited two cases that allowed for “great deference to the acts of the General Assembly.”

“Acts of the General Assembly are presumed constitutional, and courts will declare them unconstitutional only when ‘it [is] plainly and clearly the case,'” the court document states. “The party alleging the unconstitutionality of a statute has the burden of proving beyond a reasonable doubt that the statute is unconstitutional. … Where a statute is susceptible of two interpretations, one of which is constitutional and the other not, the courts will adopt the former and reject the latter.”

The panel cited some of the arguments Johnson’s attorney made; one being the final clause in Article IX, Section 5 that state’s the Board’s powers are “subject to laws enacted by the General Assembly.”

Many of the provisions of the law transferring Johnson the Board’s power “simply shift the details of day-to-day operations, such as hiring authority,” the panel wrote.

“The court further concludes that those aspects of the legislation appear to fall well within the constitutional authority of the General Assembly to define specifics of the relationship between the State Board of Education and the Superintendent of Public Instruction,” the document states.

The panel states that the statute continues to provide that the Board supervise and administer the public schools and make all necessary rules and regulations to carry out that function, which limits the Superintendents’s duties. Because of that, the Board failed to show the legislation violates the Constitution, they added.

You can read the full memorandum here.

Courts & the Law, News

Three-judge panel sets hearing to decide timeline, special election in racial gerrymandering case

A federal three-judge panel has set a July 27 hearing to consider a timeline for North Carolina lawmakers to redraw unconstitutionally racially gerrymandered maps.

The panel will also consider ordering special elections as a remedy to the constitutional violation, according to the order issued late Thursday night.

The U.S. Supreme Court affirmed the lower court’s ruling that 28 State House and Senate districts were illegally racially gerrymandered in North Carolina v. Covington. It sent back the remedial order for special elections to be reconsidered.

The three-judge panel at the U.S. District Court for the Middle District of North Carolina said in the Thursday order that it would consider all briefs and evidence submitted and gave a July 21 deadline for any other documents filed.

The hearing is scheduled to begin at 10 a.m. in Greensboro. Each party in the case will be given 90 minutes to present testimony and may call witnesses. If a party chooses to call witnesses, their identities have to be disclosed by July 21.

Courts & the Law, News

Trump taps local GOP attorney to fill long-time federal judicial vacancy in eastern NC

Thomas Farr

President Donald Trump announced today that he plans to nominate local GOP attorney Thomas Farr to fill the nation’s longest running federal judicial vacancy, located in the U.S. District Court for the Eastern District of North Carolina.

The federal judgeship has been vacant for over 11 years and long been referred to as a judicial emergency. Former President Barack Obama nominated two different women to fill the vacancy and N.C. Sen. Richard Burr blocked both nominations.

Here’s Trump’s announcement about Farr:

“If confirmed, Thomas Alvin Farr of North Carolina, will serve as a District Judge on the United States District Court for the Eastern District of North Carolina. Tom Farr is currently a shareholder in the Raleigh office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., where his practice focuses on employment matters and constitutional law. Prior to entering private practice, Mr. Farr was an attorney with the National Right to Work Legal Defense Foundation and counsel to the U.S. Senate and Labor Human Resources Committee. Mr. Farr also served as a law clerk to Judge Frank W. Bullock, Jr., of the United States District Court for the Middle District of North Carolina. He received his B.L.S., summa cum laude, from Hillsdale College, where he was co-salutatorian. He received his J.D. from Emory University and an L.L.M. in labor law from Georgetown University.”

Farr was nominated to fill the same vacant seat in 2006 by President George W. Bush but never got a vote from the Senate.

A Raleigh based attorney, Farr frequently represents the state’s Republican party in voting rights cases. He has been lead counsel for the GOP in redistricting cases and in the voter identification law challenge.

Obama had nominated both Jennifer May-Parker, the Chief of the Appellate Division at the United States Attorney’s Office in the Eastern District of North Carolina, and Patricia Timmons-Goodson, a former state Supreme Court justice and vice chairwoman of the U.S. Commission on Civil Rights. If either had gotten the judgeship, they would have been the first federal judges of color in North Carolina history for years.

Courts & the Law, News

NC NAACP asks for independent redistricting process, special elections in racial gerrymandering case

The North Carolina NAACP filed a motion in the state’s recent racial gerrymandering case asking for the three-judge panel to assign an independent entity to redraw the unconstitutional maps and to order special elections this year.

The group’s proposed amicus curiae brief (the document must be approved by the court) also asks the court to prevent the General Assembly from convening and enacting any further legislation until new members are elected under a new map.

“This bad faith, all-white caucus created by racist maps must be stopped,” said the Rev. Dr. William Barber II in a statement. “If the current unaccountable and unrepentant General Assembly is allowed to continue to act in the name of North Carolina, the consequences are dangerous for people of color, for those living in poverty, for women, for immigrant communities, for the LGBT community, for workers, and for our children. There can be no further question about whether this General Assembly is illegitimate.”

Irv Joyner, legal redress chair for the NC NAACP, said the court document asks the three-judge panel to take the redistricting process out of the hands of the people who racially gerrymandered the maps in the first place.

“The appointment of a Special Master and a judicial remedy will ensure the possibility of a non-discriminatory election in 2017 to start to renew the trust of North Carolinians in our state’s representative democracy,” Joyner said.

The NAACP is a plaintiff in similar racial gerrymandering challenges. You can read the group’s full court filings in North Carolina v. Covington here.