December 2009 at NCICL

On December 8th, NCICL Executive Director Robert Orr and Senior Staff Attorney Jeanette Doran filed a friend of the court brief at the North Carolina Supreme Court in the Baxter v. Nicholson, Inc. case which addresses the authority of certain government officers whose terms have expired. 
 

NCICL has urged the Supreme Court to affirm the June 2008 decision of the Court of Appeals. The Court of Appeals determined that a decision made by a three member panel of the Industrial Commission was not valid because one member of the panel had no authority as a Commission member once his replacement was appointed. As argued in NCICL’s brief, appointments to elected office take effect when the appointment is made and, pursuant to the State Constitution, no additional qualifications for appointed office must be satisfied. Moreover, taking the oath of office is a prerequisite for carrying on the duties of elected and appointed offices but is not a “qualification” for office under the North Carolina State Constitution.
 

To learn more about the case, click here.

To read the brief, click here.
 

On December 18th, Senior Staff Attorney Jason Kay on behalf of NCICL submitted to the N.C. Supreme Court a motion for leave to file a friend of the court brief, which was granted by the Court. The case addresses the burdens placed on emerging political parties and their constitutional rights to participate in the election process. The appeal was filed by the plaintiffs, seeking review of the trial court’s ruling on a case in which the plaintiffs alleged that the state statutes governing the recognition of political parties violate the North Carolina Constitution. The trial court ruled that plaintiff’s claims did not surmount the presumption that North Carolina’s ballot access scheme is constitutional. A divided Court of Appeals affirmed, holding that statutes were constitutional under Article I, Sections 12, 14, and 19 of the North Carolina Constitution, which address the rights to free association, free speech, and equal protection of the laws.
 

While the Court of Appeals panel unanimously held that the statutes infringed on fundamental constitutional rights and, therefore, the statutes must survive strict scrutiny, a majority of the panel took the position that the legislature had met this high constitutional burden, holding that the infringing statutes were narrowly tailored to achieve only the alleged compelling state interest.
 

Kay said, "this case is about something larger than the parties involved in this litigation, it’s about the integrity of the Constitution itself. When the State infringes on the fundamental constitutional rights of its citizens, it is not entitled to a measure of deference. In this instance, the rights enshrined in the North Carolina Constitution cannot be placed in a role that is subordinate to the will of the legislature. And when the State has burdened the same constitutional rights in the past through means that are less burdensome than those employed in the present, it is hard to understand how those restrictions have been crafted by the legislature in the most narrowly tailored way, as the Constitution requires. We look forward to raising these concerns before the Supreme Court in our amicus brief."
 

To learn more about the case, click here.

To read the brief, click here.
 

On December 21st, Executive Director Robert Orr and Senior Staff Attorney Jeanette Doran, for NCICL, along with The American Civil Liberties Union of North Carolina Legal Foundation, filed a motion for leave to file a friend of the court brief along with said brief. The grant to file is currently pending. The issue at hand in this case is whether the Court can issue an Order for Removal of Certain Content from Plaintiff’s Counsel’s Office Website and for a Gag Order. Defendants in this case object to news articles posted on Plaintiff’s counsel’s website – articles that were already out in the public domain – suggesting that those articles may cause material prejudice and taint a potential jury pool. A finding that the posted articles and Plaintiff’s counsel’s statement found therein violates the Rules of Professional Conduct would implicate the First Amendment rights of Plaintiff and Plaintiff’s counsel, as well as the First Amendment rights of the public and the press.
 

The First Amendment to the United States Constitution provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I, § 3. Additionally, the North Carolina Constitution provides that “[f]reedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.” N.C. Const. Art. I, § 14.
 

“Unfortunately, we are increasingly seeing efforts by litigants aimed at trying to stifle public observations by opposing counsel about the case. This is particularly troubling in the context of public interest litigation where the public needs to be informed of the actions complained of and provided information about the issues raised. This is an important issue, and NCICL looks forward to being able to advocate our position on this right to free speech issue”, said Orr.
 

 

December Articles about NCICL
 

•Joseph Henchman, “North Carolina Expert: ‘Incentives’ Just Protectionist Corporate Welfare”, Tax Foundation

•Heather Moore, “Attorneys criticize governor's comments on court ruling”, News 14 Carolina

•John Henderson, “Charter school files lawsuit”, The Rocky Mount Telegram

•Normal Leahy, "Against corporate welfare”, Tertium Quids

•James Romoser, “Dell balks at tax credits”, The Winston-Salem Journal

•Jordan Schraeder and Dale Neal, “State constitution cited by critics of Asheville’s Cecil Bothwell”, The Asheville Citizen-Times

•Jordan Schraeder, “Volvo reflection: Most NC job grants stumble” The Asheville Citizen-Times 
 

•Hugh Kramer, “Foes try to nullify election of atheist in North Carolina”, The Examiner 
 

•Associated Press, “NC incentives promised go unused as firms retrench”, Rocky Mount Telegram

•Kirsten Valle, “N.C.'s job-incentive bets don't all pay off: Landing a business is no guarantee that it will thrive, Kings Mountain learns”, The Charlotte Observer

•Stella M. Hopkins, “Electrolux heads to Charlotte”, The Charlotte Observer

Everyone here at NCICL wishes you the best of this holiday season! Thank you for all of your interest and support in 2009.  We look forward to the upcoming year and continuing to be advocates for the freedoms afforded to us by our state and federal constitutions and for governmental compliance with the constitutional limitations that ensure us those freedoms. With your continued support in this new year, we will continue to work hard to further our successes in pursuit of these endeavors. Happy New Year!

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