Courts & the Law, News

Judicial primaries are cancelled…again

The 4th Circuit Court of Appeals has cancelled North Carolina’s judicial primaries. Again.

A three-judge panel ordered that the state’s primary elections for appellate judicial seats should remain cancelled after U.S. District Court Judge Catherine Eagles reinstated them as part of a preliminary injunction.

The decision was not unanimous. Judge Stephanie Thacker, a Barack Obama nominee, and Paul Niemeyer, a George H.W. Bush nominee, agreed to stay the preliminary injunction. Judge Diana Motz, a Bill Clinton nominee, would not have granted the stay.

The North Carolina Democratic Party sued lawmakers and the state for eliminating judicial primaries this year alleging the measure infringed upon their First and 14th Amendment rights to Freedom of Association, or the rights of groups to take collective action to pursue the interests of its members.

Attorneys representing the legislature and the state argued, among other things, that the initial decision to cancel primaries this year was made because they could be rendered moot if judicial redistricting or merit selection passes both chambers.

It should be noted that neither such judicial reform proposals have come to fruition at the legislature yet.

John Wallace, an attorney who represents the Democratic Party, said Friday afternoon that they were considering available options after the 4th Circuit’s ruling. They could request the U.S. Supreme Court make a final decision in the case.

Candidate filing for the appellate judicial primaries that Eagles reinstated was set to begin Monday. Now, barring any further action by the courts, the judicial candidate filing period will run from June 18-29, according to the State Board of Elections and Ethics Enforcement.

Courts & the Law, News

Three-judge panel to hear more Cooper v. Berger challenges today

Attorneys for Gov. Roy Cooper and GOP legislative leaders will be back in state court today.

A three-judge panel will take up motions to dispose of two issues in the separation of powers case, Cooper v. Berger. The first issue involves House Bill 239, a measure that reduced the Court of Appeals from 15 judges to 12, and the second involves a voucher mandate in the budget bill, Senate Bill 257.

Cooper argues that Section 1 of HB239 purports to shorten three appellate judicial terms to fewer than eight years. He asks the court to declare it unconstitutional and therefore “void and of no effect.”

The rest of that bill deals with different types of appeals and court workload.

As for the voucher mandate, Cooper argues that it’s unconstitutional because the General Assembly mandated what he could include in his base budget.

“By mandating what the Governor must include in his proposed budget, the General Assembly is exercising core executive power in violation of separation of powers,” the complaint states.

The three-judge panel designated to hear the challenges are Judges Henry Hight, a registered Democrat who serves Franklin, Granville, Vance, and Warren counties; Jay Hockenbury, a registered Republican serving New Hanover County; and Nathaniel Poovey, a registered Republican serving Catawba County.

The hearing begins at 10 a.m. and will be held in Courtroom 303 at Campbell University School of Law.

Courts & the Law, Defending Democracy, News

New hybrid bill includes revision of Ethics, Elections merge

The North Carolina Supreme Court recently struck down a General Assembly law merging the State Board of Elections and State Ethics Commission, and lawmakers are trying to pass a fix before heading back to the lower court.

House Bill 90 addresses education issues, Atlanta Coast Pipeline funds and the Cooper v. Berger decision from the Supreme Court.

The measure adds one seat to the State Board of Elections and Ethics Enforcement for someone who is not affiliated with either of the political parties with the most registered affiliates.

That means the Board would consist of four Republican members, four Democratic members and one unaffiliated member. Cooper can appoint all nine members of the new board — eight from a list of names compiled by the majority parties and one from a list of two names compiled by the other eight appointed members.

“The purpose of this legislation is to implement the decision of the North Carolina Supreme Court … to give the Governor executive control over the Bipartisan State Board of Elections and Ethics Enforcement and to provide for representation on the State Board by unaffiliated and third-party voters,” the bill states.

Cooper’s office has not yet responded to a request for comment.

Courts & the Law, News

South Carolina article highlights issues with legislative judicial appointment

The Post and Courier in Charleston, South Carolina, published a story yesterday about lawmakers considering a change in the practice of spouses or other family members tied to legislators getting judgeships and other state posts.

South Carolina is one of two states where legislators elect judges. North Carolina is considering a form of judicial merit selection that critics have described as “window dressing” for a legislative appointment process.

“I have a problem with legislators putting their spouse on college boards and judicial seats,” Rep. Mike Burns, R-Taylors, said after Wednesday’s joint House-Senate voting session of the South Carolina Legislature, according to the Post and Courier.

The article gives examples of perceived nepotism in recent judicial races.

It states that Burns intends to co-sponsor legislation already in the works that would bar current legislators’ immediate family members from running in a legislatively elected race.

Lawmakers in North Carolina have not made public the substantive details of a merit selection plan its considering, though a basic structure has been discussed. There is also a judicial redistricting proposal on the table that could change the way judges and prosecutors across the state are elected.

You can read the full Post and Courier article here.

Courts & the Law, Education, News

Supreme Court evaluating who has power over public schools — Board of Education or Mark Johnson

Determining who prevails in the power struggle between the State Board of Education and the Department of Public Instruction Superintendent will boil down to semantics.

The state Supreme Court heard arguments yesterday in the lawsuit challenging the constitutionality of House Bill 17, a GOP measure that transferred power from the Board to Superintendent Mark Johnson, a newly elected Republican.

There was a lot of discussion about what certain words or phrases in the state constitution and in House Bill 17 meant. Hardy Lewis, attorney for Johnson, hung his hat on the phrase “subject to laws enacted by the General Assembly” to show that lawmakers had power to reallocate power.

“The General Assembly has significant power to revise and limit even the expressed powers in the constitution,” he said.

Bob Orr, a former state Supreme Court justice who represents the Board, said the General Assembly was seeking “unlimited and unprecedented control.”

“The General Assembly cannot give constitutional powers; it cannot reallocate powers,” he said.

Supreme Court justices asked a lot of questions about how far the General Assembly’s powers could go and what the real issue of the case was.

“I think the question that really is before the court is who is really the authority of the public school system?” Lewis said. “Is it the Board, are they the fourth branch of government? Or are there other equal and superior entities?”

Orr said he thought the core constitutional power of the board was to supervise, make rules and administer funds — it delegates to the superintendent, who is the chief administrative officer of the board.

“The whole concept was that the General Assembly couldn’t parcel out to whatever entity it chose or may create the powers that are supposed to be consolidated under the State Board,” he said.

Deputy Attorney General Olga Vysotskaya de Brito argued on behalf of the state and said HB17 didn’t take away the Board’s power. She explained that HB17 gives the Board “general” powers of supervision and Johnson has “direct” day to day powers of administration.

Each of their powers are to be as prescribed by law, she added.

“The General Assembly does not have the power to abolish the core functions of the Board but it does have the power to revise and limit,” she said.

Andrew Erteschik, another attorney for the Board, disagreed and said the HB17 was “not a nuanced piece of legislation.”

“The Board is in charge of the public school system,” he said. “HB17 says that the Board is not in charge of the public school system and that the Superintendent is in charge of the public school system.”

When asked about lawmaker’s legal presumption of constitutionality when it passes laws, Erteschik added that it was “out the window” when they copied and pasted a constitutional statute from one entity to another.

Supreme Court justices will decide the case at a later time. Chief Justice Mark Martin did not hear the case after previously recusing himself.