Courts & the Law, News

Court of Appeals sides with lawmakers in Cooper litigation over block grant funding

Gov. Roy Cooper, a Democrat, and the Republican-led legislature have been battling over power since he took office in 2017.

A three-judge appellate panel sided with lawmakers in litigation over whether federal block grant funds are subject to appropriation by the General Assembly or the Governor only.

Cooper v. Berger dealt with three federal block grants in particular that Gov. Roy Cooper argued he was responsible for spending — a substance abuse prevention and treatment block grant, a maternal and child health block grant and a community development block grant. Federal funds for those grants total more than $107 million per fiscal year, according to the state budget.

The Governor submitted his own budget proposing how the funds should be allocated, among other things, but the General Assembly ultimately disagreed with his suggestions and passed a budget with different allocation amounts to the grants.

The three-judge appellate panel released its unanimous decision in the case Tuesday. It was written by Judge Lucy Inman with Judges John Tyson and Donna Stroud concurring.

“The North Carolina Constitution plainly provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,” the court document states. “The federal laws governing the Block Grants identify the State as the beneficiary of the funds, and they do not prohibit their appropriation by our General Assembly — the branch that wields exclusive constitutional authority
over the State’s purse.”

Cooper and the legislature have been involved in separation of powers litigation since the Governor took office in January of 2017. The Republican-led legislature worked to eliminate a number of gubernatorial powers when Cooper, a Democrat, won the election.

Read the full Court of Appeals decision here.

News

U.S. Supreme Court may sidestep a big Second Amendment fight

Demonstrators gathered outside of the U.S. Supreme Court yesterday in support of gun violence regulations – Photo: Robin Bravender

WASHINGTON — A high-profile gun rights case argued before the U.S. Supreme Court on Monday might be dismissed with little fanfare.

The justices heard an hour of arguments in the case that challenges now-defunct New York City gun restrictions. The case has been billed as the biggest gun rights lawsuit in a decade, with the potential outcome of broadly knocking down local gun restrictions.

But the case may be tossed out on procedural grounds, allowing the justices to avoid digging into the thornier legal issues over the scope of the Second Amendment. That would mark at least a temporary victory for gun control advocates wary that the court’s conservative majority could dramatically expand gun rights.

The dispute centers on a New York City regulation banning the transport of licensed, locked, and unloaded handguns to a home or shooting range outside city limits. In the face of legal challenges, the city has since changed its regulations to remove the travel restrictions.

“You’ve got what you want now,” Justice Sonia Sotomayor told the lawyer representing gun owners in court on Monday. She said the plaintiffs were asking the justices to rule in a case where the other side “has thrown in the towel.”

Justice Ruth Bader Ginsburg also questioned, “What’s left of the case?” now that the regulations have been changed.

Paul Clement, the lawyer representing gun owners challenging the rule, insisted that his clients hadn’t gotten everything they wanted. He expressed concerns that the new rule on the books in New York City remains overly restrictive and doesn’t make it clear that his clients could stop for coffee, for example, while transporting their guns. He also warned that his clients could be held responsible for previous violations of the regulation that’s no longer on the books.

Clement accused New York City of struggling to make the case go away by overhauling its regulations after the Supreme Court agreed to hear it, for fear of losing.

Richard Dearing, the attorney representing New York City, said the change to the policy was an example of government working well by responding to concerns brought up in litigation. He told the justices that coffee stops and bathroom breaks were permissible under the new rules.

Chief Justice John Roberts, who could represent the swing vote on the ideologically divided court, asked whether gun owners’ past violations of the previous regulation could be used against them; Dearing assured him that they would not.

Justice Brett Kavanaugh — a conservative nominated by President Donald Trump to replace the centrist Justice Anthony Kennedy — didn’t ask questions in the gun rights case. His confirmation was seen as a significant shift on the court toward limiting gun regulations.

Other conservative justices didn’t appear likely to want to throw the case out on procedural grounds.

“They didn’t get all that they wanted,” Justice Samuel Alito said of the gun owners in the case. “They wanted a declaration that the old law was unconstitutional, period.”

Justice Neil Gorsuch, another Trump appointee, also pointed to concerns about New York City’s new gun regulations. “Why isn’t there a live controversy remaining?” he asked.

Gun rights proponents are anxious about this case in part because the court hasn’t taken a Second Amendment case in over a decade, said Timothy Zick, a professor at William and Mary Law School.

The New York case represents a vehicle for getting an answer to the question: “How are lower courts supposed to be deciding gun regulation cases?” Zick said.

The justices’ line of questioning on Monday suggests that at least four justices and maybe more were thinking this may not be the right case to answer that question, he added. But “even if this case is mooted — and we may not find that out for a while — they’re likely to take another gun case. … There are plenty of cases right behind it in the pipeline.”

The court will issue an opinion in the case, New York State Rifle & Pistol Association, Inc. v. City of New York, before the term ends next summer.

Robin Bravender is the Washington bureau chief for the States Newsroom Network, of which NC Policy Watch is a member.

Commentary, News

Calling UNC’s $2.5 million Silent Sam payout a “sham” is too kind. It’s an outrage.

Calling the UNC Board of Governors’ sly announcement last week of a $2.5 million settlement with the Sons of Confederate Veterans a “sham” — as the McClatchy editorial board team did Monday — is overly kind.

It is a disgrace. It is an embarrassment. It is an outrage. It is, frankly, appalling the leadership of North Carolina’s esteemed university system would quietly negotiate an accord with an organization like the SCV with no public vetting, and to release the terms of said deal the afternoon before Thanksgiving.

No one in North Carolina should forget our history, which is precisely why the university system should not be kowtowing with an organization with such a fantastical version of it, one in which slavery is reduced to a bit part in the Civil War.

The university and the people of North Carolina can be thankful that the racist statue no longer stands at UNC’s grassy McCorkle Place, but they shouldn’t have to do so while stomaching a payment to a group like this. Both sides should explain how they arrived at this deal, which seemed to arrive concurrently or even before the Sons of Confederate Veterans filed their suit, as the Durham attorney T. Greg Doucette elucidated on Twitter last week. How? Why?

At this moment, the board’s words and deeds continue to speak loudly, and not in the right way, about this supposedly silent statue.

Read part of the McClatchy editorial below:

For more than a year, the University of North Carolina’s Board of Governors has tried to resolve a problem that didn’t really exist: What should it do with Silent Sam? The Confederate statue with its racist roots had been topped by protesters on the UNC-Chapel Hill campus in August 2018. Agree with the method or not, Silent Sam no longer was a safety hazard or a source of pain and controversy to the school community.

But instead of merely giving the statue away or keeping it closeted, the board decided last week to pay millions of dollars to a Confederate sympathy group to take the statue off the UNC System’s hands. In a whisper-like announcement the afternoon before Thanksgiving, the UNC system said it had agreed to settle a lawsuit involving Silent Sam by giving $2.5 million to the North Carolina division of the Sons of Confederate Veterans.

The resolution “does what is best for the university,” said BOG member Jim Holmes. In reality, it’s a resolution that brings new problems and new shame to the UNC system, and it comes with new questions about the money and timing of the agreement.

First, the timing. UNC’s announcement Wednesday began: “This morning a judge entered a consent judgment in a lawsuit involving the Confederate monument known as Silent Sam.“ But documents show that the lawsuit was both filed and settled on Wednesday, the same day as the UNC announcement. The odd timing was discovered by attorney and former BOG member Greg Doucette, who noted that the board met at 10 a.m. Wednesday to approve a settlement that clearly had been agreed to before a lawsuit had even been filed. The board should address what was behind that legal maneuvering, including what legal standing the off-campus Sons of Confederate Veterans had, if any, to bring a lawsuit regarding the statue.

As for the $2.5 million, the university says that it will not come from state money, but from the interest earnings of the UNC system’s privately funded endowment. That’s money, however, that might be used to fund worthy and urgent needs that fit the UNC system’s core mission of educating students. Instead, it will go to an organization that promotes a revisionist history overwhelmingly rejected by serious historians, an organization that hosted a distasteful “secession ball” in South Carolina less than a decade ago and continues to propagate the historical fiction that the Civil War was not fought over slavery.

It’s also a group that chooses to ignore the distress that symbols of the Confederacy bring to many of its fellow Americans. Now, that group will raise Silent Sam and bring the same pain to another North Carolina community, and it will do so with millions of the University of North Carolina system’s dollars. It’s an inadequate and clumsy resolution, a washing of hands that continues to stain our state.

News, Policing

ICYMI: NC joins the rest of the nation in trying teens as juveniles (podcast)

It was years in the making, but staring this month 16 and 17-year-olds will not automatically be charged as adults for low-level felonies and misdemeanors in North Carolina.

A tremendous amount of work has gone on behind the scenes since the Raise the Age legislation was passed in 2017. And last week, Billy Lassiter, Deputy Secretary of Juvenile Justice for the Department of Public Safety sat down with Policy Watch’s Rob Schofield to discuss the impact of the legislation, efforts to reduce recidivism rates, and what additional fine-tuning the law may need in the future.

Click below to hear our podcast with Lassiter:

Learn more about Raise the Age in this FAQ produced by the UNC School of Government.


 

agriculture, Environment

Durham officials tighten loopholes on illegal dumping near Falls Lake, but enforcement remains lax

For a year, state officials have ordered Jim Puryear, the owner of 101 Southview Road in Durham, to plant vegetation on his land to curb erosion after an illegal dumping operation polluted a stream and wetlands near Falls Lake. This photo, taken Dec. 1, 2019, shows nothing has been planted. (Photo: Lisa Sorg)

Years of illegal dumping near Falls Lake finally prompted Durham County officials to strengthen rules on what constitutes “beneficial fill” — used to improve farmland — and what is merely trash disguised as dirt.

Durham County Commissioners last week approved changes to the Unified Development Ordinance that require more accountability from landowners who want to use beneficial fill. 

The commission passed the amendment by a 3-1 vote. James Hill voted no; Brenda Howerton was absent from the meeting.

Durham City Council had already approved the changes earlier in November. 

Durham County Commissioner Wendy Jacobs: “This is very serious.” (Photo: Durham County)

Landowners who want to use beneficial fill now have to apply to the county, said Ryan Eaves, Durham County’s Stormwater Control and Erosion manager. They must detail their proposed activity, including the source of the fill material, and how long the disposal will occur.

“Sedimentation sounds benign,” said Commissioner Ellen Reckhow. But when dirt accumulates in waterways it leads to more flooding. Contaminants can also hitchhike on the sediment particles, further polluting the waterways. 

“iI’s an environmental issue and a safety issue,” Reckhow said.

However, several people who live near the lake and the illegal dump sites objected to the amendments, saying they are still insufficient to protect the water supply for a half million people downstream and those on neighboring private drinking water wells.

“The proposed changes aren’t going to stop the environmental abuse,” Ruth McDaniel, a farmer and soil scientist who lives on Benny Ross Road, adjacent to a former illegal dump site, told the commission. “It’s are not the best that our community can produce, and I ask that changes not be enacted until there is more stakeholder input.”

State law defines beneficial fill as dirt, asphalt and concrete, whose purpose is “to improve land use potential or other approved beneficial reuses.” 

Dumping has occurred at these five addresses near Falls Lake. With the exception of 2817 Baptist Road, the other locations have been shut down by either county or state officials — or both. Russell Stoutt is responsible for the illegal dumping at Kingsmill Farm, Benny Ross Road and Southview Road, according to state and county documents.

But at least one illegal dumper has outmaneuvered county officials for three years. Policy Watch previously reported on three parcels — 550 Benny Ross Road, 101 Southview Road and 201 Southview Road — where hundreds tons of dirt infiltrated with trash and other unknown substances had been dumped under the guise of beneficial fill.

All of the sites lie within a half-mile of Falls Lake; the acreage is also veined with streams that flow into the drinking water reservoir.

Russell Stoutt owns the eight-acre Benny Ross Road property. The county and the NC Department of Environmental Quality together fined him nearly $100,000 for erosion and water quality violations. However, Stoutt has yet to pay the penalty, and the case is in litigation.

McDaniel told the commission that the county has not enforced existing regulations regarding illegal dumping. For example, after county officials ordered Stoutt to stop dumping on Benny Ross Road, he continued for another four months, McDaniel said. 

“We were calling for inspections because it hadn’t stopped,” she said. “Russell knows we’re watching him. It just starts somewhere else.”

After the county forced Stoutt to stop dumping on Benny Ross Road, he began hauling dirt and trash to the Southview Road parcels, which are owned by Jim Puryear of Wendell. Stoutt filled in parts of wetlands and streams that contribute to the environmental health of the Falls Lake watershed. 

Because property owners are responsible for activity on their land, Puryear was fined $22,000 by DEQ for the Southview Road violations. For nearly a year state officials have ordered Puryear to plant grass or other vegetation to keep the erosion in check. As of Dec. 1, there was none — just packed mud after a recent rain.

New language also limits the height of dirt stockpiles. At Benny Ross Road, Stoutt had piled dirt 40 feet high, with steep slopes that threatened to collapse.  Read more