Cleaning up after the long session

Cleaning up after the long session

- in Law and the Courts

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Lawmakers may be getting ready to head home for the next several months, but their lawyers should be gearing up.

Litigation is coming. Lots of it.

In fact, establishing a slush fund in the budget to pay the costs of defending the state in challenges to laws enacted this session might have been a good idea.

(Interestingly, lawmakers did just that for anticipated education litigation, allocating $500,000 for each of the next two years for education litigation-related expenses. And they authorized the use of outside counsel for a growing spate of Department of Transportation cases, though they’ve budgeted no money to pay for that. Everything else, presumably, will land in the Attorney General’s lap.) 

Here’s a look at the highlights we can expect by fall.

Abortion and women’s health

In one of the more vaudevillian moves this session, the House tacked on an array of anti-abortion provisions to a motorcycle safety bill — as if no one would notice. 

“This is really all about protecting the health and safety of women,” Rep. Ruth Samuelson said during a heated debate on the House floor.  “We are not out here trying to shut down every abortion clinic in North Carolina.”

But that’s exactly what the provisions will do – force most of the 16 clinics here, many of which offer other women’s health services in addition to abortion, to close if they can’t meet restrictions more severe than those applicable to other types of free-standing medical clinics.

Both the House and the Senate have approved these changes and the bill is awaiting the governor’s signature.

Undoubtedly, litigation is coming. The Center for Reproductive Rights, along with Planned Parenthood and the NARAL Pro-Choice NC, condemned the legislature’s action and alluded to litigation already pending in the federal courts here arising out of the 2011 law requiring abortion providers to show women an ultrasound and describe the images before having an abortion, even if the woman objects. U.S. District Judge Catherine Eagles has blocked enforcement of the law pending a resolution of that case.

The anti-abortion provisions tacked on to the motorcycle bill are part of an agenda being pushed by conservative lawmakers around the country, some of which have already met resistance in the courts.

In North Dakota this week, for example, U.S. District Judge Daniel L. Hovland blocked that state’s recently enacted ban on most abortions, saying that “the State has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women.”

Education

Just hours after the House and Senate announced its budget deal, the North Carolina Association of Educators condemned provisions relating to teachers and schools and vowed to mount a legal challenge.  

In a letter addressed to the members of the General Assembly, the Association’s  president, Rodney Ellis, said that their actions — eliminating tenure in favor of temporary contracts, firing teacher assistants, allocating millions for private school vouchers while ignoring the abysmal teacher salaries — reflected an overall disrespect for the state’s public schools and teachers.

Ellis added that the Association would be challenging several of the changes in court, including vouchers and tenure, as violations not only of teachers’ rights but also of the state’s obligation to provide a quality teacher in every classroom as set forth in the Supreme Court’s decision in Leandro v. North Carolina.

Speaking of Leandro, the most recent chapter in that case, arising out of Judge Howard Manning’s order that the state fund the pre-K program for all at-risk children, continues its slog through the courts, with an appeal pending in the Supreme Court.  

Voting rights

True to recent form, the House — empowered by the U.S. Supreme Court’s recent decision in Shelby County v. Holder — sprung 40 pages of voter suppression laws on the public just days before session-end, tacking them on to the already-controversial Voter ID bill.  

The North Carolina NAACP and other groups have already vowed to fight the changes in court.  Should the remaining proposals be enacted into law, they’ll likewise become the bases for additional litigation.

Contrary to public perception — including that of some lawmakers — last month’s ruling in Shelby County was not a free pass to enact discriminatory voting practices. The court there threw out the coverage formula used by Congress to identify jurisdictions required to have voting changes precleared by the federal government. Though the practical effect may have been to free up many previously-covered jurisdictions to enact voting changes without interference from the federal government (and change who is likely to challenge to such changes and the burden of proof they’ll face in court), the heart of the Act which prohibits discriminatory voting laws, Section 2, remains intact. 

Last week, the Justice Department announced that it would beef up enforcement of Section 2.

And challengers in pending actions are not backing down. Shortly after Shelby County, officials in Texas claimed that they were no longer subject to preclearance and announced that the state’s voter ID law, which had been barred by a federal judge under section 5 of the Voting Rights Act, would take effect.

But plaintiffs in a Texas redistricting case have asked a federal court judge in Washington for permission to add a claim under the little-used Section 3 of the Voting Rights Act, the so-called “bail-in” provision, which sidesteps the coverage formula abandoned in Shelby County and subjects jurisdictions to preclearance upon a showing of discriminatory practices.  Saying that Texas “is a prime example of why pre-enforcement review under the Voting Rights Act is still necessary to vindicate the voting rights of minority citizens,” the plaintiffs there have asked the court to subject the state to preclearance for at least the next ten years.

Challenges to any new voting laws here would follow on the heels of the redistricting case, pending since 2011 and costing taxpayers hundreds of thousands of dollars in attorneys’ fees and expenses. That case is now on appeal in the Supreme Court, with prospects of possibly landing in the U.S. Supreme Court and following the ten-year litigation history of prior state redistricting battles.

Marriage equality

The U.S. Supreme Court decision in United States v. Windsor, holding that the federal Defense of Marriage Act defining marriage as between one man and one woman was unconstitutional, has triggered lawsuits in a number of states by residents seeking to overturn similar state law provisions — North Carolina included.

This month, the American Civil Liberties Union amended its complaint in Fisher-Bourne v. Smith, a 2012 lawsuit seeking to overturn North Carolina’s ban on second parent adoptions, to also include claims challenging the state’s ban on marriage for same-sex couples. 

Decisions elsewhere are beginning to follow the Supreme Court’s lead in Windsor. On Monday in Ohio, a federal judge ordered state officials to recognize the unions of same-sex couples who were married in other states but live in Ohio. The court there noted that Ohio recognized out-of-state marriages between first-cousins, or between minors, so long as those marriages were recognized by the state in which they happened, and said Ohio had no  basis to deny same-sex couples the same recognition.

Repeal of Racial Justice Act

The state’s repeal of the Racial Justice Act left death-row inmate requests for relief in limbo, raising the question of whether the state can take away the right it extended to them just four short years ago – a right most have already exercised.

“This will certainly be a decision to be made by judges on individual filings across the state,” said Peg Dorer, director of the N.C. Conference of District Attorneys.

Close to 150 inmates have filed requests for relief under that Act, so if Dorer is correct, there’ll be plenty of litigation ahead.

There’s more

Aside from injecting themselves deeply into constitutional frays, state lawmakers also managed to step on the toes of their local counterparts, taking control of the Charlotte airport and the Asheville water system away from those cities. Both promptly sued the state, though, and judges in each of the two cases have temporarily blocked the state’s actions pending a resolution of the underlying issues.  

Lawmakers also embraced “fracking,” easing some regulations and moving the state toward drilling in the next few years. If North Carolina follows the experience in other states, lawsuits – particularly over the public disclosure of chemicals used during the process – may be coming. The state could also be drawn into a growing controversy between states and the federal government over who should regulate the fracking process.

And the Department of Transportation continues to be mired in litigation over aborted and unnecessary projects. That’s something the legislature apparently recognized, looking to outside counsel for help.

Then there’s Moral Mondays. At last count, General Assembly police have arrested nearly a thousand protesters, more arrests than they’ve made in the last six years, and Wake County District Attorney Colon Willoughby wishes they would just stop.

Willoughby has asked the General Assembly police to issue citations for trespassing as other agencies have done in similar situations.

“It doesn’t lessen the charge or the court’s ability to try the cases, and it would probably save the Wake County taxpayers over $100,000 in police, sheriff and processing costs, and salaries,” Willoughby said.

Ironically, once arrested, protesters are landing in the Wake County courts, where they’re catching a break – thanks to the General Assembly’s persistent underfunding of the state judicial system.

They’re no longer being fingerprinted, a decision made by Sam Pennica, the director of the agency charged with that task.

“It’s a matter of dollars and cents and how much money I have to operate and whether I spend that money on fingerprinting and photographing someone who’s arrested for trespassing, or do I pay an investigator overtime to work a homicide?” Pennica said. “Those are the decisions we have to make.”

 

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at sharonmccloskey.com or @sharonmccloskey.