Courts & the Law, News

Another day, another bill introduced to change governor’s judicial appointment powers

Sen. Justin Burr (R-Montgomery, Stanly) has introduced another bill taking aim at Gov. Roy Cooper’s judicial appointment powers.

Cooper currently has the power to appoint anyone he sees fit to fill district attorney vacancies and vacancies on the Supreme Court, Court of Appeals and Superior Court.

House Bill 335 would change his power to require that he appoint from a list of three recommendations comprised by an executive committee of the political party with which the vacating member was affiliated when elected.

For example, if a Republican judge retires or resigns, a Republican executive committee would recommend three people to replace that judge. Cooper would be required to pick one of them.

Burr has already introduced two other bills that would strip Cooper of some judicial appointment power altogether. House Bill 240 takes his power to appoint District Court vacancies to the General Assembly. House Bill 241 takes his power to appoint to special Superior Court judgeships and also gives it to the General Assembly.

He also introduced House Bill 239 which would reduce the Court of Appeals from 15 judges to 12, taking away Cooper’s power to fill vacancies over the next two years as three Republican judges face mandatory retirement.

House Bills 239, 240 and 241 have already passed the House along party lines and been referred to the Senate. On Tuesday, the body referred the three bills to the Committee on Rules and Operations of the Senate.

Burr has insisted the bills are not politically motivated despite never consulting with the courts and never being asked by stakeholders to propose the changes.

Courts & the Law, Environment, News

Richmond County Commission’s public comment policy has violated First Amendment — for 20 years

Clockwise from front: Members of Concerned Citizens of Richmond County Kim McCall, the Rev. Leo Woodberry, the Rev. Cary Rodgers and Loretta Slater. In the background behind the front door is County Commissioner Kenneth Robinette. The demonstration was co-organized by the Dogwood Alliance and the Blue Ridge Environmental Defense League. (Photo: Lisa Sorg)


A s Richmond County Commissioner Kenneth Robinette walked to the administration building for his monthly meeting, he passed about a half-dozen demonstrators who had assembled near the steps outside. It was their only opportunity to be publicly heard by Robinette, because once inside, they would not be allowed to speak.

Since 2008, the Richmond County Commissioners have restricted public comment during their monthly meetings, which is unconstitutional. According to the county’s “public appearance policy,” each meeting provides a 30-minute “open forum.” But it isn’t really open: Citizens are forbidden from discussing any item that appears on that meeting’s agenda.

“This is institutional denial should be concerning for every citizen in Richmond County,” said the Rev. Cary Rodgers, also a member of the Blue Ridge Environmental Defense League. “This is a systematic, institutional oppression of voices.”

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Reached by email, Jonathan Jones, director of the Open Government Coalition at Elon University, said the county’s policy “clearly violates the First Amendment.”

Under North Carolina law, counties and cities are required allocated time in their meetings for public comment at least monthly. This time is known as a “limited public forum,” said Jones, who is a First Amendment scholar. And in limited public forums, officials can’t single out a category of class or speech to prohibit.

“There’s almost no getting around that,” Jones added.

Government officials can require people to speak from a podium and they can place time limits on the comments. “But they can’t really regulate the content,” Jones said. That includes comments “deemed inappropriate,” even if they are slanderous or libelous. While those comments could be the subject of a separate defamation suit, it is not the commission’s prerogative to legally enforce restrictions on that speech.

A few courts have ruled that within these “limited public forums,” a government body can narrow the scope of comments to topics that are germane to that unit of government. For example, city councils have no control over school funding; that falls to the county and the state.

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Courts & the Law, News

House Republicans, Democrats face off over changes to judiciary

House lawmakers passed three bills Thursday that will greatly affect the judiciary. The courts had no say in the matters.

“We didn’t consult with the courts; we are the policy makers,” said Rep. Justin Burr (R-Montgomery, Stanly), who is a sponsor of each of the three bills.

House Bill 239 would reduce the size of the current state Court of Appeals from 15 to 12 judges, preventing Gov. Roy Cooper from filling upcoming vacancies. House Bills 240 and 241 take appointment power away from Cooper and gives it to the General Assembly for District Court judicial vacancies and special Superior Court judgeships.

Democrats expressed concern on the House floor about the bills’ lack of vetting. They said there weren’t any  requests from stakeholders to modify the judiciary and they were worried about the political motivation behind dabbling with an independent branch of government.

Republicans criticized Democrats for expanding the court unnecessarily in 2000, and Rep. Sarah Stevens (R-Surry, Wilkes) alluded to a bigger plan to eventually expand the state Supreme Court.

Part of HB239 would allow class action certification appeals to bypass the Court of Appeals and go directly to the state Supreme Court, reducing some of the caseload on appellate judges.

“The Supreme Court doesn’t have enough work to do, so by cutting back on some of the Court of Appeals work, we’re going to continue to send more cases directly to the Supreme Court,” Stevens said. “You may see us back here adding more to the Supreme Court load next year or the year after for that very reason. We are trying to equalize the loads between the two.”

During a whirlwind of special sessions in December, there were rumors that the General Assembly would try to pack the state Supreme Court by adding justices to counter Democrat Mike Morgan’s election to the bench. The justice’s election swung the court to 4-3 Democratic control.

The Court of Appeals currently has an 11-4 Republican majority but three Republicans are approaching mandatory retirement, which will mean Cooper could appoint to fill their vacancies.

Democratic Leader Rep. Darren Jackson said the political motivation behind adjusting the judiciary was obvious. He said there was no formal study or workload analysis to justify the reduction in judges and introduced a motion to send the bill back to a committee for further study — the motion failed.

Lawmakers also argued about the appointment power that is supposed to fall to Cooper. Rep. Henry Michaux Jr. (D-Durham) said the bills, if passed, would surely lead to more litigation.

Two Democrats tried to introduce compromise amendments to give appointment powers to chief judges, instead of the General Assembly or the governor, but both efforts failed.

Jackson tweeted after the session, “Days like today when u have 2 sit & watch your profession take it on chin for partisan reasons, just sucks. We are destroying our [court] system.”

Courts & the Law, News

N.C. House expected to vote today to reduce Court of Appeals judges, take appointment power from Cooper

In another display of power grabbing, the N.C. House will take up three bills today that would reduce the size of the state’s appellate court and take away judicial appointments from Gov. Roy Cooper.

The bills were passed in a House judiciary committee Wednesday in a 7-6 vote along party lines. Rep. Justin Burr (R-Montgomery, Stanly) introduced all three of the bills.

He faced questions from Democrats about his motives and said he’d long been working on making changes to the judiciary.

“It’s simply a matter of pushing for a process I believe is better,” he said.

House Bill 239 would reduce the size of the current state Court of Appeals from 15 to 12 judges, preventing Cooper from filling upcoming vacancies. It comes as three Republican judges on the court near mandatory retirement.

Former Appellate Court Judge Martha Geer, a Democrat who stepped down in May, spoke against the bill during the public comments. She expressed concern that legislators had not spoken with the chief judge about their changes.

“This will impact the citizens,” she said.

She said there has been a growing workload and backlog at the court and that reducing judges will surely add to current delays.

A recent study shows that each judge on the Court of Appeals writes more than 100 opinions per year. By contrast, state Supreme Court justices wrote an average of six opinions per year in 2015 and 2016.

The workload of the Court of Appeals would justify increasing the size of the court from 15 to 18, in keeping with periodic workload-based additions since the Court of Appeals was created in 1967. The legislature increased the number of judges from 6 to 9 in 1969, 9 to 12 in 1977 and 12 to 15 in 2000.

House Bills 240 and 241 would take appointment power from Cooper to fill District Court vacancies and special Superior Court judgeship and give it to the legislature.

Burr said that the N.C. Bar Association would be able to give the General Assembly five recommendations for District Court judges, but those recommendations would not be binding — lawmakers could choose whomever they wanted to be a judge.

Burr said he believed more North Carolinians would be able to weigh in if the General Assembly had the appointments as opposed to the governor, who is “only one person in the executive branch.”

When asked by a Democrat if there were problems with the current process to warrant the change, Burr didn’t have an answer and instead repeated his beliefs about it being a better process.

The House is expected to vote on the bills today. Stay tuned for updated coverage.

Courts & the Law, News

Bipartisan lawmakers announce bill to raise the age of juveniles prosecuted as adults

The time is now. A bipartisan group of lawmakers, advocates and officials gathered Wednesday morning to introduce a bill that would raise the juvenile age of prosecution in the adult criminal system.

North Carolina currently is one of only two states that prosecutes 16- and 17-year-olds as adults.

“North Carolina must not be last,” said Judge Marion Warren, Director of the N.C. Administrative Office of the Courts.

He joined several lawmakers from both political parties and both the House and Senate in announcing House Bill 280, the Justice Juvenile Reinvestment Act.

Warren said the most difficult part of the jobs he’s had over the years as a lawyer, an advocate, a judge and a prosecutor, has been witnessing the damaging effects of prosecuting teens as adults.

“You have someone that commits an offense that you see is from the sheer folly of youth and lack of maturity, and that offense carries with them the rest of their lives,” he said. “We put an Albatross or a millstone around the youth of our state when we give them an adult conviction.”

Among other things, HB 280 would raise the age of juvenile jurisdiction to include 16- and 17-year-olds, except in the case of certain violent felonies. The primary bill sponsors are Representatives Chuck McGrady (R-Henderson), David Lewis (R-Harnett), Duane Hall (D-Wake) and Susan Martin (R-Pitt, Wilson).

McGrady said that when the General Assembly passed the Justice Reinvestment Act in 2011 to reform the adult criminal justice system, it reaped major benefits.

He said the policies led to the lowest prison population in a decade and saved the state nearly $165 million from 2012 to 2015, adding that he believes HB 280 will bring similar benefits.

“Aside from it being the right thing to do, it’s fiscally the right thing to do,” he said.  “Over a long period of time, this bill will save us some money; short term, we’re going to have to make some investments in the juvenile justice system.”

He said staff was still working on a fiscal note for the bill but estimated it would require several hundred million dollars in a three to five year span.

“Overall though, it’s a quick payback,” McGrady said.

William Lassiter, deputy commissioner of Juvenile Justice in the Division of Adult Correction and Juvenile Justice, explained some cost-benefit analyses that showed a range of benefits for the state from $7 to $50 million per year.

The lower number, he said, was an actual dollars benefit, whereas the larger number included actual dollars and benefits to juveniles. Just by keeping teens in the juvenile criminal system, as opposed to the adult system, is shown to reduce recidivism by 8 percent, Lassiter said.

Over time, that means there are less kids growing up and going to prison and less adults who have to be on probation or require supervision — the number one cost-saving benefit, he said.

Hall also spoke about his support for the bill, and said that in recent years, only 3.3 percent of juveniles were shown to have committed violent crimes. Prosecuting juveniles as adults, he said, means that small offenses have “enormous long-term consequences.”

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