Courts & the Law, News

Court of Appeals denies legislative request for voter ID hearing with all judges

Previous ruling barring use of voter ID stays in place

The full North Carolina Court of Appeals won’t hear arguments on the state’s new voter photo ID law.

A three-judge appellate panel already ruled unanimously in February to halt the law from taking effect, pending a trial on the merits of the underlying lawsuit, Holmes v. Moore. After that ruling, Republican legislative defendants asked for an en banc hearing, or a hearing before all 15 members of the Court.

There was not a reason given in the Tuesday decision for why judges denied the en banc hearing. Judges Lucy Inman, Phil Berger Jr. and Chris Brook recused themselves from consideration of the case, according to the order.

Lawmakers enacted Senate Bill 824 after North Carolinians passed a vaguely written constitutional amendment to enshrine the use of a voter photo ID. It was passed with 55.4 percent of the vote.

The plaintiffs in Holmes v. Moore filed their lawsuit in state court the day SB 824 became law, and then appealed a lower court’s decision not to issue a temporary ban on voter ID during while litigation was pending.

The Southern Coalition for Social Justice, which represents the five plaintiffs in Holmes, applauded the Court of Appeals’ decision to deny the en banc hearing.

“We believe today’s decision by the full Court of Appeals, which prevents the state’s voter ID law from taking effect until the trial of the case has concluded, continues to send a strong message that the rights of all voters must be protected in North Carolina,” states a news release from the organization.

A federal court has also issued a temporary stay on the state’s voter ID law under a separate lawsuit. The judge in that case wrote a 60-page injunction that noted lawmakers had at least some “discriminatory intent” in passing SB 824.

Courts & the Law, News

U.S. Supreme Court: NC immunity stands in Blackbeard copyright skirmish

Blackbeard

The U.S. Supreme Court ruled unanimously Monday that it could not override a state’s sovereign immunity from certain copyright infringement claims in a North Carolina dispute about footage of the Blackbeard pirate ship, Queen Anne’s Revenge.

Rick Allen’s Nautilus Productions sued the state of North Carolina for posting its photos and videos of the ship online without permission. Queen Anne’s Revenge ran aground in Beaufort in 1718 and was discovered in 1996. The video production company was documenting the salvaging of the shipwreck and Allen had registered the work with the U.S. Copyright Office.

Much of the high court’s opinion, written by Justice Elena Kagan, focuses on technical copyright law. It acknowledges Allen’s broader argument that highlights a history of states stealing copyrighted material and then claiming sovereign immunity as a defense, but points to Congress to solve the issue.

Congress previously passed the Copyright Clarification Remedy Act (CRCA), but Kagan pointed out in the opinion that it likely did not understand certain rules at the time that would have supported Allen’s argument. “But going forward, Congress will know those rules,” the document states. “And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Allen told The Hollywood Reporter on Monday that he was saddened by the decision. “The state of North Carolina routinely and vigorously enforces its own copyrights, yet simultaneously hides behind sovereign immunity when it violates the intellectual property rights of its own citizens,” he told the magazine. “The Constitution and Congress of the United States of America call for a different result.”

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

North Carolina Attorney General Josh Stein said Monday he was pleased with the high court’s opinion. “In today’s ruling, the Court unanimously upheld longstanding precedents recognizing that all States retain certain core aspects of sovereignty, including sovereign immunity from copyright lawsuits,” he wrote in a statement.

“My office looks forward to continuing to work with the North Carolina Department of Natural and Cultural Resources as it continues to recover, preserve, and educate the public about Blackbeard’s historically important shipwreck. I also want to congratulate and thank Ryan Park, who argued this case and has since been appointed North Carolina’s Solicitor General, for all his hard work.” Read the full opinion below.

 

SCOTUS Allen v. Cooper (Text)

Courts & the Law, COVID-19, News

During COVID-19 crisis, officials begin reviewing jail population for early release

Image: Adobe Stock

North Carolina criminal justice officials have begun reviewing the number of people in jail and releasing nonviolent inmates as a precaution to protect against COVID-19, the disease caused by the new coronavirus, which has become a pandemic.

Reports from across the state indicate that Wake, Durham, Alamance, Orange, Chatham, Forsyth, Guilford, Mecklenburg and Buncombe counties have started releasing individuals from jails or delaying intermittent weekend sentences to prevent the spread of COVID-19 in facilities. Other counties could be doing the same, but those listed have been confirmed.

Durham County District Attorney Satana Deberry said Friday that while community residents are rightly heeding the advice of health officials to stay home and avoid crowds to the extent possible, social distancing for incarcerated individuals is not possible.

For the health and safety of both those incarcerated and employees at the Durham County Detention Facility, Deberry said in a news release that she has worked with defense attorneys and judges to identify people who could be safely released through a modification of release conditions or disposition of their case. Specifically, they have worked to identify individuals who do not pose a public safety risk, people who are over the age of 60, and people with health conditions that put them at high risk of serious illness due to COVID-19.

Durham District Attorney Satana Deberry

“We are also working with local law enforcement to ensure that only those few individuals who do present a danger to our community are brought to the detention facility during this emergency. We ask that defense attorneys notify us if they represent a client who is in custody in Durham and at high-risk of illness.”

The inmate population dropped from 369 a week ago to 332 today, though spokesperson Sarah Willets noted it’s possible some of the inmates could have been released by bonding out or completing a sentence independent of the current push to decarcerate. She didn’t have an exact figure of how many people had been released per that effort.

The News & Observer reported between 2007 and 2018, the average annual jail population at the Durham County Detention Center fell from 629 to 498. It fell to 366 in April 2019.

Jails and prisons are seen as particularly high risk when it comes to COVID-19 because of the close contact inmates have with each other and their limited access to cleaning and sanitizing supplies and medical care.We are concerned about anyone who is incarcerated in any facility across the state. They are incredibly dangerous places at this moment. Click To Tweet

“We are concerned about anyone who is incarcerated in any facility across the state,” said Leah Kang, a staff attorney with the ACLU of North Carolina. “They are incredibly dangerous places at this moment.”

The ACLU of NC along with a coalition of organizations called Thursday for state officials to take action to protect incarcerated people, corrections employees and the general public by reducing the use of imprisonment. They sent letters to Gov. Roy Cooper, the North Carolina Department of Public Safety, the North Carolina Conference of District Attorneys, the North Carolina Association of Chiefs of Police and the North Carolina Sheriffs’ Association.

“We’ve shut down schools, we’ve shut down universities, we need to decarcerate,” Kang said in a phone interview Friday.

*****

Jail facilities are under local control and usually run by counties and or sheriffs’ offices. The populations there are usually shorter term and pre-trial, which means most inmates have been accused but not convicted of a crime. Prisons, by and large, owned and operated by the state or federal government, and most of the populations have been convicted of felony charges.

Leah Kang

Kang said advocates are concerned about populations in both prisons and jails and are asking for relief for both, but she noted a few difference that could put inmates in jails at greater risk of contracting COVID-19.

Jail populations are more transient, meaning more people are coming in and out of facilities, increasing the risk of exposure, and counties are usually less equipped than state and federal governments when it comes to resources because of the shorter-term nature of inmate stays.

Kang was hesitant to point out the differences, though, because COVID-19 could be a death sentence for any incarcerated individuals whether they are in a jail or a prison. She added, however, advocates believe jails should be releasing all pre-trial populations unless there is an identified harm to a specific person that would be exacerbated by their release.

“In the midst of this crisis, there really should not be anyone languishing in jail because the can’t afford bond,” she said. “We need to get people home.”

Wake County District Attorney Lorrin Freeman said Friday her office is working diligently to reduce the number of individuals in jails “while also ensuring that we are maintaining public safety and protecting victims’ rights under the new constitutional amendment.”

“We have notified law enforcement of our preference that individuals be cited as opposed to arrested when appropriate,” she stated in an email.

She added that they are continuing to operate four courts each day to continue to resolve cases involving individuals who are in custody.

We are operating four courts each day for the purpose of continuing to resolve cases of individuals in custody. Those cases include first appearances daily for both misdemeanor and felony cases (as per usual).

As individuals in custody have their first appearances before a judge, we are asking for unsecured bonds in low level non-violent offenses,” Freeman said. “We are working with the Wake County Sheriff’s Office to identify people who are in custody awaiting trial whose bonds can be unsecured. We will continue to review cases of people in our local jail to determine if release is appropriate.”

She said her office is also awaiting a report from the prisons on incarcerated individuals aged 60 and older to review to see if any of them would be appropriate for early release.

*****

Some counties, like Alamance, have delayed all intermittent sentences until May 1. Those individuals, who serve their sentences intermittently on weekends or weekdays were ordered there not to report for jail before then.

Attorneys with the North Carolina Justice Center’s Fair Chance Criminal Justice project said they are seeing a large range of jail policies being implemented, and while the efforts are laudable in a time of panic, many are only a first step to preventing and controlling a COVID-19 outbreak in jail and prison facilities. The NC Justice Center is the parent organization for NC Policy Watch.

“Across counties, law enforcement, district attorneys and judges should prioritize the safety of incarcerated people and staff working inside of jails by limiting charges to non-arrestable offenses and issuing citations in lieu of arrest, moving for immediate release of all people held on secured bond except in instances of high safety risk, and suspending all intermittent sentences for people on probation,” wrote Quisha Mallette, a project attorney, in an email.

Daryl Atkinson

The North Carolina Division of Prisons suspended visitation to all the state’s prisons Monday to minimize the health risks from the spread of COVID-19. Todd Ishee, Commissioner of Prisons, also announced a number of screening measures they’ll implement as a precaution.

Daryl Atkinson, Co-Director of Forward Justice, called on Gov. Roy Cooper to do more for the state prison population.

“Just as Governor Cooper has taken bold action to limit public gatherings, he must also take bold action to reduce the number of vulnerable people held in our state’s prisons by utilizing his clemency powers and expediting release and parole to the elderly and chronically ill in our prisons,” he said. “For the sake of our communities, to every extent possible our prisons should not needlessly keep people incarcerated who are especially vulnerable to COVID-19. The lives of these people are quite literally in the governor’s hands.”

Courts & the Law, COVID-19, News

Courts issue new COVID-19 guidance as NC cases continue to grow

Image: Adobe Stock

The North Carolina Administrative Office of the Courts issued new guidance Sunday night in the wake of the spread of COVID-19, which includes postponing foreclosures, small claims hearings and evictions.

In a memo released Sunday, North Carolina Supreme Court Chief Justice Cheri Beasley asked judicial officials to drastically reduce operations in courthouses throughout the state. The memo updated several directives delivered in her Friday order limiting court systems operations. She stressed that while courthouses must remain open, officials must drastically curtail trips to local courts to help reduce community transmission of COVID-19, the disease that is caused by the new coronavirus, and further protect employees of the courts who must still interact with the public.

“Put simply, it cannot be business as usual for our court system,” she stated in the memo. “Non-essential court functions that cannot be accomplished through the use of remote technology must be postponed.”

As of Sunday night, the North Carolina Department of Health and Human Services was reporting 32 positive coronavirus cases – 14 cases in Wake, four in Mecklenburg, two each in Johnston, Harnett and Forsyth, and one each in Wayne, Chatham, Durham, Brunswick, Onslow, Craven, Cabarrus and Watauga counties.

North Carolina officials and agencies have been announcing various orders and guidance to stop the spread of the virus as the numbers continue to climb. Gov. Roy Cooper ordered Saturday that all public K-12 schools close beginning today for at least two weeks. On Sunday, governors across the nation announced shutting down restaurants and large gatherings, and California ordered anyone over the age of 65 to self-isolate. A short time later, the Centers for Disease Control and Prevention issued new guidance calling for the cancellation of in-person events of 50 or more people for the next eight weeks to try to prevent the spread of the coronavirus.

“Events of any size should only be continued if they can be carried out with adherence to guidelines for protecting vulnerable populations, hand hygiene, and social distancing,” the CDC website states. “When feasible, organizers could modify events to be virtual.” The guidance does not apply to the day-to-day operation of organizations such as schools, higher education institutions or businesses. “This recommendation is made in an attempt to reduce introduction of the virus into new communities and to slow the spread of infection in communities already affected by the virus,” the site states. “This recommendation is not intended to supersede the advice of local public health officials.”

North Carolina officials have been working since January to try to curb community spread of COVID-19. The memo sent jointly by Beasley and AOC Director McKinley Wooten directed the following for court systems across the state:

  • In-person meetings must be postponed or cancelled to the fullest extent possible.
  • When cases or hearings cannot be postponed for the next 30 days, remote technologies should be utilized as authorized by law and to the fullest extent possible.
  • Involuntary commitment hearings, guardianship hearings, and pressing estate administration matters should be conducted, but other matters before the clerk, such as foreclosures and other special proceedings, must be postponed.
  • Magistrates must conduct initial appearances and, subject to health precautions, should continue to perform weddings, but small claims proceedings, including evictions, must be postponed.
  • All civil and criminal district and superior court matters must be postponed unless they are absolutely essential for constitutional or public safety reasons.

Beasley’s Friday order already directed that all superior and district court proceedings be postponed for at least 30 days, with limited exceptions, including proceedings necessary to preserve the right to due process of law and proceedings for the purpose of obtaining emergency relief (e.g., a domestic violence protection order, temporary restraining order, juvenile custody order, etc.). “Preventing the spread of #coronavirus is requiring us to take unprecedented steps to curtail court operations,” Beasley tweeted Sunday night. “We appreciate the patience and support of lawyers and litigants as we work together through challenging times.” Read Beasley and Wooten’s full memo from Sunday below.

 

Court Coronavirus Memo (Text)

Courts & the Law, COVID-19, News

Most NC district, superior court cases to be postponed at least 30 days in COVID-19 response

North Carolina Supreme Court Chief Justice Cheri Beasley announced a “thoughtful, bold and innovative” response Friday to combating the spread of COVID-19, the disease caused by a new coronavirus, in crowded court houses: local courts will postpone most cases in district and superior court for at least 30 days with limited exceptions.

“Our state courts play a vital role in protecting the public health and safety,” Beasley said during a press conference. “We settle disputes civilly and promote healthy, secure communities by administering fair and impartial justice accessible to all. Unfortunately, in the moment we are facing, we must weigh the benefits of our court services against the need to protect North Carolinians from exposure to coronavirus.”

Her emergency directive to reschedule hearings goes into effect Monday. The district and superior courts will remain open to the public, but Beasley encouraged people to only go when absolutely necessary.

The exceptions to rescheduling hearings include:

• the proceeding will be conducted remotely;
• the proceeding is necessary to preserve the right to due process of law (e.g.,?a first appearance or bond hearing, the appointment of counsel for an indigent defendant, a probation hearing, a probable cause hearing, etc.);
• the proceeding is for the purpose of obtaining emergency relief (e.g.,?a domestic violence protection order, temporary restraining order, juvenile custody order, judicial consent to juvenile medical treatment order, civil commitment order, etc.); or
• the senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding can be conducted under conditions that protect the health and safety of all participants.

This directive does not apply to any proceeding in which a jury has already been empaneled or to any grand juries already empaneled. It also does not prohibit a judge or other judicial officer from exercising any in chambers or ex parte jurisdiction conferred by law upon that judge or judicial officer, as provided by law.

Additionally, the superior courts and district courts are encouraged to liberally grant additional accommodations to parties, witnesses, attorneys, and others with business before the courts who are at high risk of severe illness from COVID-19.

“Thousands of people enter our courthouses every day, most often because they have been summoned to be there and will risk legal consequences if they do not appear, and, while the work of our courts must continue, my first priority is the health and safety of the public that we serve and of the employees who provide those services in our courthouses,” Beasley said. “We must be proactive in taking steps to prioritize the health and safety of our fellow North Carolinians while also maintaining the integrity of our judicial system.”

All counties will post a notice at all court facilities directing any person who has likely been exposed to COVID-19 to not enter the courthouse, according to the North Carolina Administrative Office of the Courts (AOC). Any person who has likely been exposed and has business before the courts should contact the clerk of superior court’s office by telephone or other remote means for further instruction.

As the courts work to postpone thousands of cases, court officials will notify parties and their attorneys of new hearing and trial dates.

The Judicial Branch will be providing continuous updated information and answers to frequently asked questions on its website, NCcourts.gov.?The public is encouraged to visit the website as a first resort to determine if a question can be answered without calling the local courthouse.

Online court services are available for handling some court business, including citation services, paying tickets, court payments, signing up for court date notifications and reminders, eFiling court documents for certain courts and case types, and more.

Read Beasley’s emergency directive below. Follow NC Policy Watch for up-to-date information about COVID-19 throughout the day and in the coming week.



SC Emergency Directive (Text)