Recently elected Appeals Court judge fires troubling broadside at former Chief Justice Cheri Beasley

Judge Jefferson Griffin (pictured at left) hasn’t served on the North Carolina Court of Appeals very long — he was only first elected last November along with several other Republicans swept in on Donald Trump’s coattails — but that doesn’t appear to be dissuading him from using his new platform to issue assertive statements that venture into politics and public policy.

Consider, for example, Griffin’s concurring opinion in the case of State of North Carolina v. Kevin Lee Johnson, that was issued yesterday. The case involved a search by an Iredell County Sheriff’s office lieutenant who found cocaine on an individual he stopped for allegedly failing to wear his seat belt. The defendant appealed his trial court conviction on the grounds that the bodily search the officer conducted was unlawful. By all indications, the officer was white and the suspect was Black.

In yesterday’s opinion, all three judges on the panel (including Griffin and fellow recently elected Republican Jeffery Carpenter) agreed that the search was unlawful and that the evidence obtained as a result of it should be suppressed.

What stood out from Griffin’s concurring opinion, however, was not his vote in the case, but a broadside on the issue of racially-biased law enforcement that Griffin decided to launch in the direction of former state Chief Justice Cheri Beasley.

Former Chief Justice Cheri Beasley

Beasley, you may recall, spoke publicly, courageously and quite accurately last year in the aftermath of the murder of George Floyd about the horrific and undeniable reality that has long confronted Americans of color — and, in particular, young Black men — when it comes to policing and criminal justice. As Raleigh’s News & Observer reported on June 3 in the aftermath of protests that rocked the nation:

“We must do better,” she said. “We must be better. Too many people believe that there are two kinds of justice. … In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

Beasley later established a commission to examine the blatant racism that has long permeated the state’s criminal justice system.

Griffin it seems, however, was none to happy with this fact and has apparently been spoiling to vent about if for some time. And when the lawyers for the defendant in the illegal search case raised the issue of race, he seized on that as grounds to attack Beasley.

Indeed, in his concurring opinion — a locale usually reserved for fine legal distinctions — Griffin decided to republish several paragraphs of a speech Beasley delivered last June in which, among other things, she called for “a plan for accountability in our courts” and training judges to “recognize our biases.”

Weirdly and disturbingly, Griffin was and is bothered by such talk, and by the fact that lawyers for a Black defendant would raise it in his case. We know this because he then used the remainder of his opinion to attack Beasley for wrongfully venturing into public policy.

“The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint….We are fortunate to live in the United States of America where the law is applied the same to all citizens.

To which all a body can say in reply is “what planet did this man grow up on?”

The bottom line: Word on the street is that Griffin is an ambitious politician who, despite being one of the youngest and least experienced judges on the Court of Appeals, is already planning a run for a Supreme Court seat in the near future.

Sadly, it appears we already have a strong inkling as to what his campaign will look like.

Breaking: U.S. Supreme Court schedules Dec. 1 oral arguments in major abortion case

WASHINGTON — The U.S. Supreme Court will hear oral arguments on Dec. 1 in a case that threatens to overturn decades of abortion protections established under the landmark 1973 ruling in Roe v. Wade.

The upcoming case, Dobbs v. Jackson Women’s Health Organization, stems from a Mississippi law that bans most abortions after 15 weeks. It has been blocked by a lower federal court.

The nation’s top court announced in May that it would take up the Mississippi case. Since that announcement, the justices also voted in a 5-4 decision against preventing a more-strict Texas law from taking effect.

That Texas law bans abortions once cardiac activity can be detected — typically around six weeks of pregnancy, and early enough that many women still do not know they are pregnant. It also allows private citizens to file lawsuits against abortion providers and anyone who aids an abortion.

Also on Monday, a coalition of attorneys general from 23 states and the District of Columbia filed an amicus brief asking the Supreme Court to deny Mississippi’s request that it declare broadly that there is no constitutionally protected right to an abortion.

That coalition includes attorneys general from Colorado, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, Virginia, and Wisconsin.

They argue in the brief that the Roe v. Wade decision takes into consideration state interests, while also protecting the ability of individuals to “make one of the most consequential, intimate and properly private decisions” they will ever confront.

Congressional Democrats are taking up legislation as soon as this week to enshrine the legal protections from the Roe ruling in federal law. But even if that bill passes the U.S. House, where Democrats hold a slim majority, it’s unlikely to pass in the evenly divided U.S. Senate.

Superior Court permanently enjoins 2018 NC voter ID law

A three-judge panel ruled 2-1 Friday that the state voter ID law enacted by the General Assembly in 2018 is unconstitutional. The law required voters to present a photo ID when casting their ballots, including provisional ones.

Lawmakers approved Senate Bill 824 by overriding Gov. Roy Cooper’s veto of the legislation during a lame duck session  in December 2018.

Represented by the Southern Coalition for Social Justice as well as pro bono counsel from the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, five North Carolina voters sued legislative defendants, including House Speaker Tim Moore in Wake County Superior Court.

Signed by Democratic Judges Michael O’Foghludha and Vince Rozier, Jr., the majority opinion held that the law was passed with discriminatory purpose or intent. Plaintiffs’ expert Kevin Quinn, a University of Michigan professor, performed an analysis in which he matched voter files to databases that track the rates at which various groups possess the required ID and unearthed disparities between voters of different races.

According to the ruling, “When restricting [Quinn’s] analysis to active voters—those who voted in the 2016 and 2018 elections—African American voters were over twice as likely to lack qualifying ID than white voters.”

Therefore, the majority opinion said, the burden of obtaining qualifying ID, including free ID, would fall more heavily on Black voters, who more often lack a form of qualifying ID required under SB 824 and encounter more barriers to obtaining such IDs compared to white voters.

In his dissenting opinion, Republican Judge Nathaniel Poovey wrote that plaintiffs failed to prove that legislative defendants acted with discriminatory intent.

“Senate Bill 824 was a bipartisan bill that was supported along the way by multiple African American legislators and enacted after the people of our State approved a constitutional amendment calling for voter-photo-ID requirements,” Poovey wrote. He said that SB 824 should not be declared unconstitutional.

Three-judge panels, composed of three superior court judges from different judicial districts, are a common form of arbitration for constitutional challenges to state laws. The Holmes v. Moore decision came after a three-week trial in April.

In 2019, the Wake County Superior Court denied plaintiffs’ request for a preliminary injunction, which was granted later by a Court of Appeals panel in 2020.

In response to today’s ruling, Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs issued a statement lauding the judges’ action:

Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs

“We applaud the three-judge panel’s decision and hope it sends a strong message that racial discrimination will not be tolerated. Should legislative defendants appeal today’s ruling, we’ll be prepared to remind them of what this court and the state’s constitution mandate: every vote matters.”

A separate federal lawsuit on the voter ID law is ongoing. As Policy Watch previously reported, Senate President Pro Tem Phil Berger and House Speaker Tim Moore sought to intervene in that suit, but were rebuffed in that effort by the Court of Appeals for the Fourth Circuit. Berger and Moore are seeking review of that issue by the U.S. Supreme Court. In response to today’s ruling, Moore’s attorney promised an appeal, saying in  a statement “We look forward to appealing this partisan ruling on behalf of the people of North Carolina.”

This is not the first time North Carolina pushed for a stricter photo ID requirement. After the U.S. Supreme Court’s landmark Shelby County v. Holder ruling, the Republican-controlled North Carolina General Assembly voted to pass HB 589, which only allowed one of eight forms of voter ID for in-person voters. That bill also included other restrictive measures such as ending pre-registration for 16- and 17-year-olds and forbidding voters from casting ballots outside of their precincts.

The Fourth Circuit of Appeals said in the decision striking down the law, that the General Assembly was “eager to rush through the legislative process the most restrictive voting law North Carolina has ever seen since the era of Jim Crow.”

Quinn’s analysis shows that though SB 324 added a few eligible IDs to the eight types of acceptable IDs under HB 589, it added only a “minuscule number” of voters.

Policy Watch will publish additional updates on this case as they become available.

Federal court strikes down NC law that barred farmworkers from seeking union representation via lawsuit settlements

A federal district court judge on Wednesday entered a permanent injunction against a provision from the North Carolina Farm Act of 2017 that invalidated lawsuit settlements in which parties agree to recognize union representation of farmworkers as part of the agreement. The challenged provision was passed by the General Assembly and signed into law by Gov. Roy Cooper in July of 2017 as part of an omnibus 24-page bill.

Farmworkers and civil rights groups announced a federal lawsuit outside the legislature in 2017. (Photo by Carol Brooke)

Advocacy groups filed suit challenging the anti-union provision in the U.S. District Court for the Middle District of North Carolina in November of 2017 on behalf of two farmworkers and the state’s only farmworker union, the Farm Labor Organizing Committee (FLOC).

[Note: NC Justice Center, the parent organization of Policy Watch, was among the organizations and law firms representing the plaintiffs in the suit.]

Plaintiffs claimed that FLOC had been deprived by the law of at least one opportunity to “assist members who have potential employment claims to negotiate with their employer for a prefiling settlement of such claims.”

In the complaint, counsel for the plaintiffs argued that the ban on making union representation a part of settlements strips farmworkers from securing settlement terms in their best interest, a right enjoyed by other private sector employees.

In reviewing and approving the decision of the Magistrate Judge to which the case was initially assigned, U.S. District Court Judge Loretta Biggs previously held that the challenged provision violates the First Amendment and first-amendment-related protections of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On Wednesday, she permanently enjoined the state from seeking to enforce it.

The plaintiffs argued that the law not only infringed on workers’ First Amendment rights to form and participate in in unions, but it also violated the Equal Protection Clause of the Fourteenth Amendment, as most of the state’s farm workers are Latino.

“We continue to believe this law was crafted to block farmworkers from fighting for these rights with the help of the Farm Labor Organizing Committee negotiating on their behalf,” said Julia Solórzano, a staff attorney with the Southern Poverty Law Center’s Immigrant Justice Project representing the plaintiffs, in a press release. “These efforts to undermine the rights of these workers must not stand, and we will fight until they are defeated.”

The suit also challenged another portion of the law that prohibits agricultural producers from entering voluntary enforceable agreements to deduct union dues from farmworkers’ paychecks.

Despite striking down the settlement provision as unconstitutional, Judge Biggs, allowed the dues checkoff ban to remain in place.

As Policy Watch previously reported, many farmworkers in North Carolina are present in the state on a temporary visa for guest workers and don’t have credit cards or access to U.S. bank accounts, hence few other means to pay for union dues other than relying on dues transfer arrangements.

Plaintiffs are appealing the portion of the decision that upheld the dues checkoff provision to the Fourth Circuit Court of Appeals in Richmond, Va.

“We are confident that the Fourth Circuit will determine that farmworkers are entitled to the same rights as other North Carolina workers to freely choose for themselves whether to have union dues deducted from their paychecks,”  legal director for the ACLU of N.C. Kristi Graunke said in the press release.

NC House Democrats to file petitions to discuss gun control bills that stalled

At a press conference Thursday, four North Carolina House Democrats announced their plans to file petitions to discharge, or to directly bring two bills onto the House floor, for discussion next week.

The two bills would introduce a system to temporarily restrict access to firearms and to require a purchase permit for long guns. They were sent to the House rules committee but never heard in a judiciary committee.

Rep. Marcia Morey (D-Durham) described the discharge petition as “the only way that someone in the minority can try to get a bill out of committee, and put onto the floor and have a debate and a discussion.” No discharge petitions has been successful in the past few years, Rep. Julie von Haefen (D-Wake) said. But she maintained that legislators need to use the procedure now.

Morey and von Haefen said the measures are imperative given the rise in gun violent and recent school shootings, including one that resulted in the death of a student in Winston-Salem.

“In 2019, 511 people were killed by guns in our state,” said von Haefen.  “But that number increased significantly in 2020 when 670 people were killed by guns, a 31% increase in gun-related deaths in just one year.”

Rep. Marcia Morey, D-Durham speaks at a Sept. 9 press conference announcing her plan to discharge legislation that would promote gun control.

“There have been about 21 bills filed in the House in the Senate on gun laws, most of them to expand gun rights, to take away limitations to remove pistol permitting, that there are God-given gun rights,” Morey said. “But today we are demanding a response to the carnage, with two sensible gun safety pieces of legislation.”

Morey introduced House Bill 525, which would establish rules to temporarily restrict a person’s access to firearms through Extreme Risk Protection Orders. The bill would enable family members, a current or former spouse or partner, law enforcement officers and health care providers to file a petition to court to issue these orders, which would last for up to a year.

Morey recalled her meetings with with five families that lost their children to gun violence last week. She said, “And for the next years, not only will they grieve the loss of their children, or navigate funeral and medical bills, and they will wait and wait and wait for years for a court system to slowly grind to give them a day in court.”

Indeed, she said, it’s time for North Carolina to join more than 20 other states to enact such a “red flag law” that would help prevent harm and deaths caused by people who shouldn’t possess firearms.

Rep. von Haefen filed HB 623, which would require a permit to purchase long guns and rifles. Currently, federally

Rep. Julie von Haefen

licensed dealers are required to run background checks on potential buyers of long guns. But no state permit is required.

Becky Ceartas, executive director of North Carolinians Against Gun Violence, said at the press conference that the federal background checks have major loopholes.

“Our federal background check system, it only applies if you’re buying a gun from a federally licensed dealer,” Ceartas said. “That means if you’re a domestic violence abuser, a minor in my experience you experiencing a mental health crisis, you can go to a gun show or online and buy a gun, no questions asked.”

Von Haefen said she proposed a purchase permit because it helps protect lives. Ceartas said the state pistol permit closes the federal loophole for handguns; those wanting to purchase a handgun needs to obtain a pistol permit or concealed carry permit from the sheriffs’ offices, which perform their own background checks. A bill aimed at eliminating the state pistol purchase permit won approval at the Republican-controlled General Assembly, but was vetoed by Gov. Roy Cooper in August.

Rep. Evelyn Terry, D-Forsyth

Rep. Evelyn Terry, D-Forsyth, said the recent shooting at Mt. Tabor high school and discovery of a handgun at Parkland High School in her district sound an alarm for the threat of lax regulation on guns.

“The guns… are in the community…in the trunks of people’s cars… that are going into the hands of children who absolutely have no business getting them at all.”

Rep. Allison Dahle (D-Wake), called on her fellow gun owners to take responsibility that comes with possessing weapons. “There’s nothing wrong with asking a law abiding citizen to get a permit,“ Dahle said. ”It’s not a difficult process to go through.”

“We don’t want your gun; We’re not going to take your gun… We’re asking that you’d be responsible,” Dahle said.