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.

Courts & the Law, Defending Democracy, News

North Carolina redistricting litigation: What the heck is going on?

Less than 24 hours after the U.S. Supreme Court blocked some of a special master’s districts from being implemented, plaintiffs in a similar racial gerrymandering case have asked a state court to get involved.

And a little more than an hour after the new challenge was announced, Rep. David Lewis (R-Harnett) called a press conference to complain about all the redistricting litigation.

“Here we go again,” he said. “These liberal dark money groups financed and controlled by allies of the Democratic party are determined to use and abuse the court system to achieve unprecedented chaos. In short, it appears that they will sue until North Carolina is blue despite what the people, despite what the voters want.”

It does seem like there’s been a lot of redistricting litigation going on, but it hasn’t just been Democrats taking advantage of their legal options — the GOP has also filed their fair share of documents, including a number of emergency pleas to higher courts when they don’t get the ruling they want.

There’s a saying about glass houses, but instead of getting into that, check out this breakdown of the most recent redistricting case:

  • When the U.S. Supreme Court upheld that 28 House and Senate districts were racially gerrymandered, lawmakers redrew the districts.
  • The plaintiffs — voters harmed by the unconstitutional gerrymandering — challenged 12 of those redrawn districts alleging state and federal constitutional violations.
  • A federal three-judge panel appointed a special master to evaluate and potentially redraw those districts. Stanford Law Professor Nathaniel Persily agreed they were unconstitutional and redrew the districts.
  • After briefings and a hearing on Persily’s maps, the panel ordered they be enacted over lawmakers’ redrawn plans for this year’s elections.
  • Lawmakers immediately filed an emergency request for the U.S. Supreme Court to block the ruling and announced they planned to appeal. One of the points they made was that the federal court should not have ruled on state constitutional issues (a ban on mid-decade redistricting), as was the case with House districts in Wake and Mecklenburg counties. “Any state-law challenge to HD36, HD37, HD40, HD41, and HD105 thus must be filed in state court, where state judges familiar with the state constitution can address the unsettled question of how N.C. Const. art. II, §5(4) applies when a federal court invalidates a duly enacted map.”
  • The U.S. Supreme Court issues a split order: some of the special master’s maps can be used in this year’s elections and some can’t, at least temporarily pending an appeal. The districts that can’t be used are the ones that involve questions of state law.
  • The plaintiffs in a racial gerrymandering case that challenged legislative maps at the state level filed a court document asking state judges to order new districts into effect in Wake and Mecklenburg counties, where they accused lawmakers of violating the mid-decade redistricting ban.
  • Lewis calls a press conference to criticize plaintiffs for filing more litigation.
Courts & the Law, Defending Democracy, News

NC Twittersphere responds to U.S. Supreme Court ruling re: special master

The U.S. Supreme Court issued a split order Tuesday evening: Some of a court-appointed special master’s legislative districts can be used in this year’s elections and some can’t, at least temporarily.

Voters, elected officials and experts took to social media right away to express their reactions. Here are a few of the highlights:

Courts & the Law, Defending Democracy, Education, News

Today: NC Supreme Court to hear Board of Education, Superintendent power struggle

The North Carolina Supreme Court will hear a dispute today between the State Board of Education and Department of Public Instruction Superintendent Mark Johnson.

The Board sued Mark Johnson after the legislature transferred its power to the newly-elected Republican. Arguments today will center on the constitutionality of that measure, House Bill 17.

Even though Johnson prevailed in the lower court, he has not yet been able to take over in the role set out for him in HB17 because of a temporary order during litigation.

The Supreme Court will likely determine whether the Board or Johnson will be in control of the state’s public school system, it’s 1.5 million students and $10 billion budget.

The state’s high court will also hear another lawsuit from the Board over whether it has to submit its rules to a panel for review. Argument in that case begins at 9:30 a.m. Argument in the dispute between the Board and Johnson are set to begin at 10:30 a.m.