In the courts, questions for 2014

In the courts, questions for 2014

- in Law and the Courts


This year closes with plenty of unfinished business in North Carolina courts, when it comes to the many weighty issues brought before them in 2013.

Will 2014 bring some closure? Perhaps in some cases, though others appear destined for resolution by the nation’s highest court.

Here are some questions we hope will be answered by this time next year.

Will the Supreme Court elections become a free-for-all?

The 2012 state Supreme Court race between Justice Paul Newby and Court of Appeals Judge Sam Ervin IV saw millions in outside money pour in, much of it from the Republican State Leadership Committee in support of Newby. That’s the same group that played a key role it drafting the redistricting plan now up for review by Newby and his fellow justices – a not-so-coincidental link that brought questions of impropriety and requests for recusal.

Concerns over outside money will likely grow in 2014, when four of the seven court slots are open and public financing is gone. All candidates will be working the fundraising trail as they’ll no longer be able to rely on the few hundred thousands previously available through the public match. With that, the 2014 Supreme Court races will likely be the costliest in history.

Already Justice Mark Martin – who is thus far unchallenged in the race for Chief Justice — has jumped out to an early lead in dollars raised, reaching $100,000 during the first six months of 2013. During that same period, other candidates were just getting their campaigns up and running.

Court of Appeals judges Bob Hunter and Sam Ervin IV will square off for Martin’s seat, and Justice Cheri Beasley faces a challenge from Brunswick County Senior Resident Superior Court Judge Ola Lewis.

Justice Robin Hudson has no challengers for her slot.

How far will the redistricting case go?

Although the challenge to the state’s 2011 redistricting plan reached its first milestone in July, when the three-judge panel in Wake County ruled in the legislature’s favor, the case is far from over.

The state Supreme Court will hear arguments from counsel for the parties in January – making a decision likely before the end of the year, especially with elections looming in November.

But history tells us that a decision from the state’s highest court may not be the final word. The last round of redistricting litigation took nearly a decade to complete after several trips to the state and U.S. Supreme Courts.

Also, a separate challenge to the redistricting of congressional districts 1 and 12 is working its way through the federal courts after voters filed a complaint in October.

Will you need a photo ID to vote in 2014?

U.S. District Judge Thomas Schroeder in Greensboro made clear in late December that there would be no trials in the three cases challenging the monster voting law signed by the governor in August until the summer of 2015. That said, he’ll likely consider blocking some or all of the voting law changes from taking effect in time for the November 2014 election, so voters should know well in advance of going to the polls when they can vote and whether they’ll need a photo ID.

Will the Outer Banks get a new bridge?

Nearly everyone agrees that residents of Hatteras Island, who rely on the regularly washed-out NC-12 and storm-battered Bonner Bridge to cross over the Oregon Inlet, need a better way to get to the mainland. But how best to make that happen is as much a question for coastal experts as it is for the courts.

After years of delay, and following its previous approval of a plan to build a causeway bridge out over the Pamlico Sound, the state now wants to build a bridge parallel to the Bonner Bridge along with additional bridges over spots on NC-12 likely to wash out after storms. But environmental groups say that plan is a quick fix that fails to address long-term environmental changes at the coast and predict that the proposed bridges on NC-12 will ultimately be spanning over ocean waters.

In September, U.S. District Judge Louise W. Flanagan ruled against those groups, finding that the state complied with required environmental permitting procedures and could go forward with its plan. Flanagan’s decision is now up for review in the Fourth Circuit, with argument and a decision possible before the end of 2014.

Will capital punishment continue its slow death?

Most of the 150 death row inmates in North Carolina filed papers with the court seeking to have their sentences commuted to life without parole under the state’s Racial Justice Act before the governor repealed it in June. But only a handful had their cases heard through completion – four successfully.

The Supreme Court is now reviewing the completed cases and considering, as well, whether changes to the law can be applied retroactively to those who’d already sought relief in court.

Argument is likely to be scheduled soon, with a decision possible before the end of 2014.

Public support for the death penalty is waning here and across the country, though. No one has been executed in North Carolina for seven years, and just one person was sentenced to death in 2013.

Will the “motorcycle vagina” law hit the road?

Remember the so-called “motorcycle vagina” bill – the one that started out in the General Assembly as a safety bill for bikers but ended up forecasting the closure of many, if not most, abortion clinics in North Carolina?

Among other provisions, the bill signed by the governor in late July calls for regulations holding abortion clinics to the same standards as ambulatory surgical centers — the effect of which will be the closure of many if not most clinics in the state, according to pro-choice groups.

Depending upon exactly what those standards are – a job now in the hands of the state Department of Health and Human Services – a legal challenge may be forthcoming.

In the meantime, a ruling in the case concerning pre-abortion ultrasound requirements could come any day. U.S. District Judge Catherine Eagles heard argument in August over whether she should block enforcement of a 2011 law requiring doctors to show and explain ultrasound images to women just hours before they have an abortion.

Will Sen. Richard Burr find his blue slip?

The Eastern District of North Carolina’s federal courts, home to 44 counties and a significant minority population, has been waiting for eight years for a judge to replace U.S. District Judge Malcolm Howard, who took senior status at the end of 2005. In June, the President nominated Jennifer May-Parker to fill that seat. If confirmed she would be the first African-American to serve in the Eastern District.

But May-Parker needs the approval of her home state senators in order to move to a confirmation hearing, demonstrated by the return of a “blue slip” to the Senate Judiciary Committee. Sen. Kay Hagan has returned hers, but Burr has not. And he’s not saying why.

Will Amendment One be done?

The year is ending with a number of same-sex marriage cases ascending in the courts.

In Utah last week, a two-judge panel of the 10th U.S. Circuit Court of Appeals refused to stay a district court’s order striking down that state’s ban on same-sex marriage. The issue of delaying enforcement of that order is now before the U.S. Supreme Court.

And in Ohio, a federal judge held last week that states are constitutionally obliged to accept the marriages of same-sex couples performed legally in other states.

The high court might refuse to consider those cases, but most experts agree that it’s only a matter of time before the justices will take another marriage equality case.

Could that be the one working its way through federal court in North Carolina?

Here, in Fisher-Borne v. Smith, several families who originally filed a complaint concerning second parent adoption have since amended their complaint to add a challenge to the state’s voter-approved Amendment One, which defines marriage as the union of one man and one woman.

That challenge was noteworthy not only because of its substance but also because of the tiff it set off between Attorney General Roy Cooper, whose office would typically defend the state in the case, the governor and legislative leaders.

Because Cooper has publicly criticized the amendment, Senate President Pro Tem Phil Berger and House Speaker Thom Tillis have retained separate counsel to “advise” them on status and strategy in the case — even though neither has been named as a defendant in the case.

Will Pitt County schools remain subject to court-supervised desegregation?

The decades-long battle over the desegregation of Pitt County schools continued in federal court in Greenville this past year, with U.S. District Judge Malcolm Howard ruling in September that the school district had complied in good faith with the court’s prior desegregation orders and achieved unitary status – meaning that the district would no longer be subject to court supervision.

However, parents and others who had filed the lawsuit have since appealed Howard’s ruling to the 4th U.S. Circuit Court of Appeals. Argument may occur before June and a decision possible before the end of 2014.

Will our public schools get the respect and assistance they deserve?

The public education landscape here right now is not pretty. Teachers are underpaid and leaving the system, resources are scarce, and money needed to jump-start a sound and basic education for all children is being diverted to unregulated, private alternatives.

The good news is that the pushback is growing stronger. Teachers took to the courts late in 2013 to challenge their loss of tenure as well as the diversion of public money intended exclusively for public schools to unregulated private schools.

With a largely unregulated voucher program set to begin in February, expect one of the first issues to be considered in those lawsuits to be whether that program should be suspended while the court sorts out its legality.