2013: 10 for the courts

by Sharon McCloskey, NC Policy Watch, December 26, 2013.

If 2013 is remembered as the year when a conservative supermajority rolled into Raleigh and turned North Carolina’s moderate reputation on its head, it must also be appreciated as a time when those affected by the overreach remembered that they still had a place for recourse:  the courts.

Voters, teachers, environmentalists, same-sex marriage proponents, women’s health advocates, death row inmates – just a few of the groups who looked to our state and federal courts for some help righting the ship.

And as battered and overburdened as they are, those courts will nonetheless have the last word about much of the conservative agenda pushed through during the General Assembly’s long session.

Here in no particular order are some of the highlights.

1.  Voting Rights  Lawmakers opened the long session with a flurry of bills affecting voting rights – to the surprise of no one.   When they unveiled the long-anticipated Voter ID change in April, GOP leaders promised to seek voter input through a series of “public hearings.”

In retrospect, though, the hearings just bought proponents time. Once the U.S. Supreme decided Shelby County v. Holder in late June, effectively gutting the preclearance requirement of the Voting Rights Act, all bets on legislative restraint were off.

“Now we can go with the full bill,” said Senator Tom Apodaca, referring to an omnibus voting bill that would capture most of the proposed changes, including voter ID, shortening of the early voting period and the elimination of same-day registration.

And go they did, passing what many observers called one of the most restrictive voting laws in the country.

Voters reacted quickly.  On the same day in August that the governor signed the bill into law, ninety-two year-old Rosanell Eaton and the state NAACP filed suit in federal court in Greensboro.  And just minutes later, the League of Women Voters and others filed a second suit there, alleging that the voting law changes violated the U.S. Constitution and the Voting Rights Act.  The Department of Justice followed with its own complaint in late September.

Trials are not scheduled until summer 2015. But in July 2014 the court will consider requests to block changes from taking effect in time for the November 2014 elections.

2.  Redistricting  The challenge to the state’s latest redistricting plan got underway in earnest in February, when a three-judge panel held hearings over whether the legislature improperly used race when drawing new voting lines in 2011.

After a request for additional argument in April, the panel upheld the plan in June, finding that lawmakers were right to create districts in order to avoid liability under the Voting Rights Act – a holding that voting experts criticized as unrealistic and incorrect.

“Where you have high enough levels of polarized voting and minority-supported candidates cannot win, then you need to use the VRA as an effective tool,” Washington, D.C.- based redistricting attorney Jeff Wice said. “But where you don’t have these levels of polarized voting, you don’t necessarily need the VRA.”

That ruling is now before the justices of the state Supreme Court – including Justice Paul Newby, who won re-election in 2012 with close to a million dollars in help from the Republican State Leadership Committee, a principal architect of the challenged plan. Plaintiffs have twice asked Newby to remove himself from hearing the appeal given that connection – to no avail.

Argument is set for January.

3.  Racial Justice  It didn’t take long for Gov. Pat McCrory to make good on his campaign promise to repeal the Racial Justice Act – the landmark law allowing death row inmates to have their sentences commuted to life without parole upon a showing that racial bias played a role in those sentences.

But a quick return to executions in North Carolina did not follow.

Most if not all of the 152 inmates then on death row had already filed requests for relief under the Act, and four had in fact had their sentences commuted. The state has appealed those cases to the Supreme Court in two separate appeals.

And a challenge to the constitutionality of the state’s lethal injection protocol is pending in the Court of Appeals, although proceedings there have been delayed while the parties review the state’s newly-adopted lethal injection protocol.

4.  Consumers lose  If there’s one opinion from the notably few issued this past year by the state Supreme Court (just 30) that says it all about where the majority stands when it comes to protecting consumers, it’s Bumpers v. Community Bank of Northern Virginia.

In a confounding decision written by Justice Paul Newby and joined by the other conservative justices and Chief Justice Sarah Parker, the court took a fairly obvious piece of consumer deception – charges for services that were never delivered – and turned it on its head.

The result?

Here’s Justice Cheri Beasley in her dissent:

Under the majority‘s reasoning, a bank may charge a paper statement fee to a customer who has selected electronic monthly statements offered by the bank, a safety deposit box rental fee to a customer who has not rented a safety deposit box, and a teller transaction fee on a transaction for which the customer only used the ATM. As long as the customer had some other reason that he might have chosen to do business with the bank, such as being an existing account holder, he can never show that, but for the misrepresentation, he would not have conducted business with the bank. The customer would have to show that he or she would have avoided the transaction entirely.

5.  Underfunded and Overburdened  Courts across the country continued to suffer the effects of budget cuts and the sequester, and North Carolina was no exception.

The report from the Administrative Office of the Courts released in early January revealed a court system stripped to the bone: nearly $80 million in budget cuts over four years; 638 full-time employees cut through vacancy management and actual losses, including magistrates and district attorney support staff; the elimination of state funding for drug courts and dispute settlement programs. And technology throughout the system took a beating.

With budget negotiations on the horizon, court employees and officials from the AOC director to clerks and even court reporters rallied to save services and positions and had some success avoiding any further drastic cuts for now – except for the AOC itself, which had its budget cut by $4 million.

A newly-formed House Committee on Judicial Efficiency is now looking into administration and budgeting in the courts.

6.  Who will judge the judges?  Justices Paul Newby and Mark Martin made a rare appearance (if even in name only) in the General Assembly during the long session, lobbying for the passage of a bill  that would allow judges – including themselves –to discipline each other behind closed doors.

Not that there was a need for such a bill. North Carolina’s system for dealing with wayward judges was working just fine.

The Judicial Standards Commission chaired by the Chief Judge of the Court of Appeals and comprised of judges, attorneys and state residents, reviewed complaints, at times issuing reprimands or holding public hearings. When a complaint involved a justice of the Supreme Court, a panel of the six senior Court of Appeals judges decided if and how to discipline that justice.

But the bill pushed through the legislature in the waning hours of the long session – at the urging of Newby and Martin, according to one lawmaker, and despite objections from the Chief Justice and Chief Judge of the Court of Appeals – changes all that.

Now the Supreme Court will do most of the reprimanding and disciplining of themselves and other judges, largely out of public view.

7.  Bridge over ocean waters  The fight over the rebuilding of the Bonner Bridge on the Outer Banks wasn’t necessarily news until late in the year, when state officials seized on the plight of Hatteras Island residents stranded by an emergency closure of the bridge to jump all over environmentalists.

Department of Transportation Secretary Anthony Tata, the governor, and legislative leaders blamed them for the delay in getting the bridge rebuilt, claiming that their two-year-old lawsuit challenging the state’s latest proposal was slowing down the works.

And suddenly Tata was everywhere, deriding the environmental groups and urging residents to pressure them and their attorneys at the Southern Environmental Law Center to drop the case, which is now before the 4^th U.S. Circuit Court of Appeals in Richmond.

What went unsaid:  Years ago the state agreed with environmental groups that the best solution for the Bonner Bridge and its often washed out access road, NC-12, was to by-pass hot spots on that road and build a causeway out over the Pamlico Sound instead.

Now though DOT wants to build a new state-of-the-art bridge parallel to the Bonner Bridge and proposes to cure NC-12 washout by building bridges in spots where the road is likely give out.

Coastal experts say that it’s only a matter of time before those new bridges will likely end up spanning over ocean waters as erosion continues.

8.  Choking public schools  In what was widely assailed as an all-out assault on public education, the General Assembly cut funding to schools, froze teacher salaries and eliminated tenure — but approved the use of public money for private schools by means of vouchers.

Teachers here – among the worst paid in the country – responded by leaving their jobs (and often the state) in record numbers.

Those who stayed, though, decided to fight back in court.

On December 11, the North Carolina Association of Educators filed a lawsuit in Wake County challenging the voucher program, contending that the state constitution requires public money earmarked for education to be spent “exclusively” on public schools.

And just days later, the same group filed a second lawsuit in Wake County, arguing that the elimination of tenure violates the state and federal constitution by denying teachers due process.

9. Blue-slipped  Judicial nominations drew national attention in 2013, peaking in November when Democrats in the U.S. Senate went nuclear, eliminating the use of the filibuster to block all presidential nominations other than those to the U.S. Supreme Court.

Meanwhile, North Carolina finally got a nominee for the nation’s longest running federal district court vacancy in the state’s Eastern District.

Jennifer May-Parker, nominated in late June, would be the first African-American judge to serve in that district, which serves 44 counties near the coast with a significant minority population.

But that good news was short-lived, as it became apparent that Sen. Richard Burr was not returning the traditional “blue slip” needed from a nominee’s home state senators in order to receive a confirmation hearing – resorting to his own filibuster of a qualified nominee who could help relieve that overburdened district.

Burr has not said publicly what his intentions are, and has not responded to phone calls, giving rise to suspicion that he’ll let that vacancy languish until after the November 2014 elections – with the hope that he’ll then have a Republican colleague in the Senate and a certain path for his nominees of choice.

In the meantime, North Carolina will join the minority of states with no African-American federal district court judges when U.S. District Judge James Beaty in Greensboro takes senior status in June 2014.

10.  Defenders of the state  The Justice Department is suing North Carolina. So are voters, teachers, abortion rights groups, proponents of marriage equality, civil rights activists, death row inmates . . . the list goes on.

Is it any wonder state officials can’t figure out who should be defending the state?

Attorney General Roy Cooper had that job until he expressed his personal views on a number of issues likely to end up in the courts, including abortion and voting law changes. Then legislative leaders and the governor got nervous that Cooper couldn’t be trusted to represent their interests and started lawyering up on their own – at the taxpayer’s expense.

That’s turning out to be a costly proposition.

The bill for outside counsel at Ogletree Deakins representing the individual lawmaker defendants in the redistricting case is now approaching $2 million.

The fees for outside counsel in the voting law cases will likely dwarf that amount. Ogletree Deakins likewise appears as counsel for defendants in those (along with lawyers from the Attorney General’s office) though it’s not quite clear which defendants those are, since only the state, the governor and board of elections officials are named in the complaints.

The governor has hired his own counsel to defend him in the voting cases — Butch Bowers from South Carolina, said to have experience from his involvement in that state’s recent Voter ID litigation.  Through October, Bowers has already billed close to $30,000 in fees. That’s more than his total fee award in South Carolina – just $10,880, according to this report.

- See more at: http://www.ncpolicywatch.com/2013/12/26/2013-ten-for-the-courts/#sthash.DpBqNRAP.dpuf