Courts & the Law, News

Forum to focus on bail, court fees, criminalization of poverty

If you’ve been following Policy Watch’s ongoing coverage of the criminalization of poverty through the cash bail system and court fines and fees, you’ll want to mark your calendar for an event this month in Greensboro.

The free, interactive forum, presented by the Greensboro’s city council-appointed Criminal Justice Advisory Commission (GCJAC), will be held from 6 p.m. to 8 p.m. Wednesday, June 26 at Barber Park Event Center, 1502 Barber Park Dr.

Michelle Gethers-Clark, president and CEO of United Way of Greater Greensboro, and Steve Friedland, senior scholar and professor of law at Elon Law School, will lead the discussion.
The conversation will range from bail and court fees can to the results of the 2017 NC Self-Sufficiency Standard Report.

Register for the forum here.

Courts & the Law, News

SCOTUS will take on copyright case about Blackbeard’s pirate ship

The U.S. Supreme Court is bringing a North Carolina copyright case on deck in October to settle a dispute about footage of the Blackbeard pirate ship, Queen Anne’s Revenge, which ran aground in Beaufort in 1718 and was discovered in 1996.

Rick Allen’s Nautilus Productions sued the state of North Carolina for posting its photos and videos of the ship online without permission. The video production company was documenting the salvaging of the shipwreck and Allen had registered the work with the U.S. Copyright Office. At the center of the dispute is whether federal law protects the copyrighted work from infringement and whether states are immune from certain copyright infringement claims under the 11th amendment to the Constitution.

The state initially paid Nautilus a $15,000 settlement in 2013 and agreed not to use the copyrighted material going forward, but eventually began using it again and subsequently passed “Blackbeard’s Law” which converted the work to public record, according to the court documents.

A lower court sided with North Carolina that it was protected from certain private copyright infringement claims under the 11th amendment.

The U.S. Supreme Court petition sheds light on what was described as a frequent problem before Congress passed the Copyright Clarification Remedy Act (CRCA): “states had been flagrantly copying works and threatening to copy others, claiming sovereign immunity as a defense.”

“Those most vulnerable to state copyright infringement are small businesses,” the petition states. “Because small businesses lack the resources necessary to fight state actors effectively and typically need promise of recompense for past infringement before initiating litigation, they currently find themselves largely helpless in the face of state infringement. Absent adequate remedies, authors, performers, composers, and producers will lose their incentive to create, at the expense of the economy and the arts.”

The document argues that the North Carolina infringement at issue “is but the protruding tip of a much larger iceberg of state infringement nationwide” and it presents the best vehicle for the high court to make a definitive decision about the questions before it.

“Not only has the State here infringed Nautilus’s copyrights in the Works, but it frontally attacked the federal copyrights by effectively dragging the Works into the public, unprotected domain under auspices of state law; the upshot very clearly and designedly eviscerates federal copyrights. Such conduct by States profoundly imperils federal protections that are meant to be uniform nationwide and epitomizes what Congress sought to protect against when enacting the CRCA.”

Commentary, Courts & the Law, Defending Democracy, Education, Higher Ed, Legislature, News

The week’s Top Stories on NC Policy Watch

1. Proposed legislation would dramatically weaken state hog farm oversight

A sentence here, a paragraph there. A strike-through, a repeal, a new section.

Individually, the Farm Act and the House and Senate budgets chip away at the incremental yet significant progress the state has made toward regulating industrialized livestock operations.

But taken in total, a half-dozen provisions create a safe house where these operations, particularly swine farms, can clandestinely conduct their business.

“It’s a coordinated and multi-pronged attack,” on laws protecting the environment and public health, said Will Hendrick, attorney for the Waterkeeper Alliance. [Read more…]

Bonus read: The Farm Act, state budget are “erecting a fortress for the hog industry”

2. New app will allow North Carolina students to share anonymous tips about school threats

Middle-and high-school students across North Carolina will have an opportunity to download a new app next school year that allows them to anonymously report threats to school safety.

The “Say Something” reporting system will be offered to tens of thousands of students via a partnership between the N.C. Department of Public Instruction and Sandy Hook Promise, a national nonprofit based in Newtown, Connecticut that’s led by people who lost loved ones in the tragic 2012 Sandy Hook school shooting that left 28 people dead.

“Students play a critical role in helping to keep schools safe,” State Superintendent Mark Johnson said during a press conference Thursday. “They may see and hear concerns that adults need to know about but may be reluctant to report it.” [Read more…]

3. Teachers would get 3.5 percent pay raise under proposed N.C. Senate budget

Teachers would get an average 3.5 percent pay raise over the next two years under a biennium spending plan released Tuesday by state Republican leaders.

The plan calls for spending $23.9 billion during the 2019-20 fiscal year, and it increases spending on public education by $1.3 billion over the next two years.

Senate leaders told reporters the pay increase would raise the average teacher salary to $54,500 per year over the biennium.[Read more…]

4. Senate budget writers to their “Trump country” constituents: “Drop dead”

In case you missed it, there was new confirmation this week that the people being disproportionately harmed by the refusal of North Carolina Republican senators to include Medicaid expansion in the budget bill they plan to adopt today are — wait for it — their own constituents.

It’s been common knowledge for a long time that lower-income rural communities are among the areas that suffer most from having high rates of uninsured residents, but a recent news story from our neighboring state of Virginia really brings this fact home.

This is from a Tuesday story in the Virginia Mercury entitled “Trump Country sees majority of new enrollees under Va.’s Medicaid expansion”:[Read more…]

Bonus video: Senate ignores Medicaid expansion in budget; Berger says it ‘disincentivizes folks to go to work’ (video)

5. Five basic truths to remember this week about the state budget

It’s one of the great and maddening ironies of the state lawmaking process in North Carolina that the single most important piece of legislation each year is perhaps the most poorly reported and one of the least well-understood.

Every year, as the fiscal year winds down toward its June 30 conclusion, state lawmakers birth a new state budget bill that runs to hundreds of pages and includes all sorts of fundamental decisions about state funding priorities and tax policy, not to mention scores of so-called “special provisions” (i.e. law changes unrelated to the budget that may or may not have been debated previously as the subject of another bill).[Read more…]

6. Hofeller files: GOP mapmaker helped develop Trump’s citizenship Census question

The master mapmaker behind North Carolina’s most contentious and allegedly gerrymandered voting districts apparently also played a role in developing the citizenship question proposed for the 2020 Census by the Trump administration.

Thomas Hofeller’s daughter, Stephanie Hofeller Lizon recently turned over several of his hard drives and digital files to voting rights group Common Cause as part of discovery in their North Carolina state partisan gerrymandering case Common Cause v. Lewis. The news released Thursday about Hofeller’s involvement in the 2020 Census question is the first bit of data released publicly from the “Hofeller files.” [Read more…]

Bonus Read: ACLU notifies US Supreme Court of new evidence in citizenship question case

7. Not so open: Critics say UNC Board of Governors excludes the public from its “public” meetings

Hoping to hear some discussion of the future of the “Silent Sam” Confederate monument, Lindsay Ayling and a few other UNC-Chapel Hill students attempted to attend last week’s meeting of the UNC Board of Governors.

Attempted, as it turns out, was the operative word.

Before the meeting began, while most of the seats in the board room were still empty, Ayling and two other students were told there was no room for them. All the chairs in the room – even the ones that appeared to be empty – were reserved in advance, they were told by campus police.[Read more…]


8. State budget, new scientific tests shine a light on NC’s growing drinking water pollution problem

PFAS contamination found in both Jones and Orange counties

Maysville, which sits on the rim of the Croatan National Forest in Jones County, is home to 1,000 people — about half of whom rely on the town’s sole drinking water well.

And that well, according to a brief sentence in the both the House and Senate versions of the state budget, is contaminated.

But the budget doesn’t say contaminated with what, only that Maysville needs $500,000 to construct a new public supply. [Read more…]

9. Weekly Editorial Cartoon:

Courts & the Law, Defending Democracy, News

ACLU notifies US Supreme Court of new evidence in citizenship question case

The ACLU informed the U.S. Supreme Court on Thursday that new evidence about deceased mapmaker Tom Hofeller’s involvement in creating the 2020 Census citizenship question ran contrary to the Trump administration’s testimony in a recent hearing.

The high court is set to rule later this month on the legality of the Census question. The new evidence arose after Hofeller’s death, when his daughter Stephanie Hofeller Lizon turned over his hard drives and other digital files to the plaintiffs in Common Cause v. Lewis, a North Carolina partisan gerrymandering case making its way through state court.

The ACLU’s letter states that a district court hearing in the matter is set for June 5, but it wanted to let the high court know it asked for an order to show cause whether sanctions or other appropriate relief are warranted in light of the new evidence.

“The new evidence reveals that Dr. Thomas Hofeller, a longtime redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ and that Petitioners obscured his role through affirmative misrepresentations,” the letter states.

It’s not exactly clear if the new evidence can or will have an impact on the Supreme Court’s decision, but Election law expert Rick Hasen, Professor of Law and Political Science at UC Irvine, has speculated it won’t change the conservative votes on the court.

“Those justices, who are usually hostile to the Voting Rights Act, took at face value the government’s assertion that the question was necessary to protect Hispanic voters, despite uncontradicted evidence that voting rights advocates don’t need the census data to defend their cases and despite the Trump administration not bringing a single Voting Rights Act Section 2 case defending Hispanic voters,” Hasen wrote for Slate. “They pointed to foreign practices despite an aversion to citing other countries’ cases in opinions. Most disingenuously, some of the conservative justices rejected the uncontradicted scientific evidence—some offered by those working for the Census Bureau itself—that adding the question will depress turnout, especially among Hispanics.

These justices signaled that they were willing to defer to agency decision-making even when they have questioned such deference in other contexts. Never mind Ross’ real reason for including the citizenship question if Congress gives him broad discretion over how to craft the questionnaire.”

Hasen also discussed timing on Twitter — Census forms need to be printed in July, and the Supreme Court doesn’t typically consider evidence that’s not in the district court record.

“It doesn’t usually take evidence,” he tweeted about the court. “But this case is already unusual given the press of time. There was no opinion (as there usually would be) between the district court opinion and [the Supreme Court from second circuit]. If there WERE time, the Court could dismiss the case and send it back for more fact-finding in the district court, upon a motion from the plaintiffs. It would then consider whether to take the case again. But there’s no time for this.”

He tweeted that he was hard-pressed to think of another situation in which newly-discovered evidence would bear directly on an issue before the court with no time to remand the case back to a lower court.

An inaccurate Census county would have significant consequences not only because the data is used in drawing electoral districts but it also puts hundreds of millions of federal dollars at risk that are allocated based on the same data.

A spokesperson from the Justice Department has denied to media the accusations of Hofeller’s involvement in the developing to Census citizenship question. In one statement reported by the Associated Press, the Justice Department said “these eleventh-hour allegations by the plaintiffs, including an accusation of dishonesty against a senior Department of Justice official, are false.”

“That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census,” it said. “The Department looks forward to responding in greater detail to these baseless accusations in its filing on Monday.”

In the meantime, members of Congress and North Carolina officials are starting to weigh in on social media:

This is a case that North Carolina and the rest of the country appears to be keeping a close eye on.

In a sort-of unrelated hearing Thursday — attorneys in Common Cause v. Lewis participated in a teleconference to sort out some discovery issues. The Republican Party was asked by the plaintiffs to respond to a subpoena and they only did so today, at least a month after the deadline.

The Democratic Party was asked by the legislative defendants to turn over support scores. The Party refused and told a three-judge panel Thursday they didn’t think that information was pertinent to the case. The defendants argued the information was probative and necessary and they were entitled to it.

The panel took all matters under advisement to make a decision at a later time.

The trial in that case is set to begin July 15. There is a hearing in the district court level citizenship question case set for June 5. Read the ACLU letter here.

Courts & the Law, Defending Democracy, News

Hofeller files: GOP mapmaker helped develop Trump’s citizenship Census question

The master mapmaker behind North Carolina’s most contentious and allegedly gerrymandered voting districts apparently also played a role in developing the citizenship question proposed for the 2020 Census by the Trump administration.

Thomas Hofeller’s daughter, Stephanie Hofeller Lizon recently turned over several of his hard drives and digital files to voting rights group Common Cause as part of discovery in their North Carolina state partisan gerrymandering case Common Cause v. Lewis. The news released Thursday about Hofeller’s involvement in the 2020 Census question is the first bit of data released publicly from the “Hofeller files.”

The documents reveal for the first time the secret role played by Hofeller in orchestrating the addition of the citizenship question and the Justice Department’s Voting Rights Act rationale for it. The documents further show that Hofeller concluded in an unpublished 2015 study that the citizenship question would significantly harm the political power of Latino communities and be “advantageous to Republicans and Non-Hispanic Whites.”

“In his 2015 study, Dr. Hofeller concluded that adding a citizenship question to the 2020 Census was essential to using only citizens of voting age in redistricting, in lieu of the traditional practice of using total population,” a news release from Common Cause states. “He further found that adding the citizenship question, by facilitating the use of only citizens of voting age in redistricting, would cause heavily Latino legislative districts to lose population and allow Republican mapmakers to pack more Democratic voters into those districts.”

Private plaintiffs filed the documents outlining this information Thursday in the federal action challenging the addition a citizenship question to the 2020 Decennial Census, Department of Commerce v. State of New York, according to the voting rights group.

“The documents filed today further show that, in 2017, Dr. Hofeller helped ghostwrite a letter from the Department of Justice to the Department of Commerce requesting the addition of the citizenship question to the 2020 Census, supposedly to support the Justice Department’s enforcement of the Voting Rights Act,” their news release states.

The New York Times reported about the new development even before Common Cause did early Thursday morning in a significantly researched story the citing court documents that were filed the same day. The reporter there also talked to Hofeller’s daughter, who described how she came across his digital files and why she decided to turn them over to the plaintiffs in Common Cause v. Lewis.

“Sorting through Mr. Hofeller’s personal effects, looking for items she had asked her father to save for her, Stephanie Hofeller came across a clear plastic bag holding four external hard drives and 18 thumb drives, backups of data on Mr. Hofeller’s Toshiba laptop. Her mother gave Ms. Hofeller the backups, which turned out to hold some 75,000 files — family photographs and other personal data, but also a huge trove of documents related to Mr. Hofeller’s work as a Republican consultant.

Late last year, Ms. Hofeller said, she contacted the Raleigh office of the advocacy group Common Cause, seeking its help in finding a lawyer unconnected to her father to help settle his estate. Only after several conversations with a staff member there did she mention the hard drives in passing, she said, remarking almost jokingly that an expert on gerrymanders might find a lot in them that was of interest.

‘My understanding was that anything that would be on these hard drives was duplicative of things that had already been hashed out’ in court challenges to Mr. Hofeller’s maps, she said.”

The U.S. Supreme Court is set to rule on the legality of the citizenship question in just a few weeks — it’s not clear if and how these new documents could affect that ruling.

“This new evidence shows there was plan to undermine the integrity of our Census, manipulate redistricting and rig the elections for partisan advantage,” said Kathay Feng, national redistricting director of Common Cause. “Hofeller knew that adding the citizenship question to the census would erase millions of Latinos and other Americans from redistricting. Now that the plan has been revealed, it’s important for all of us – the courts, leaders, and the people – to stand up for a democracy that includes every American voice.”

Hofeller’s role in proposing the citizenship question is just one example of the type of information contained in the Hofeller files, which will likely continue to have far-reaching affects in more states than North Carolina. NC Policy Watch was the first media outlet to report the existence of the Hofeller files.

There is an unrelated hearing today at 1 p.m. in Common Cause v. Lewis. Check back with NC Policy Watch for updates about that hearing or follow @mel_bough on Twitter for live updates. The trial is set for July 15.

Read the Thursday filings below.



2019 05 30 Letter Motion Dckt 587 0 (Text)