NCICL's Jones Street Journal: Our Take on the Legislative Agenda

Apr 14th, 2011
by Justice Robert F. Orr

APRIL 14, 2011: Justice Orr sounds off on HB 99...

There are few pieces of legislation introduced each session that I can personally identify with, but HB 99 is the exception.  This bill is a proposed constitutional amendment co-sponsored by Representatives Deborah Ross (D) and Jonathon Rhyne (R) that, in my opinion, if adopted, will be a major good government reform positively impacting the appellate courts of our state.  

Currently, the N.C. Constitution provides in Article IV, Sec. 19 that a vacancy occurring on the Supreme Court or Court of Appeals is filled by appointment by the Governor. (I always tell people that we already have an appointive system and have since 1868).  The catch is that the appointee has to run for election at the next general election that occurs more than 60 days after the appointment.  The problem with this provision became patently clear to me when Governor Jim Martin appointed me to a vacancy on the N.C. Court of Appeals effective the first of September in 1986.

While I struggled to transition from private practice to my new judicial duties and move from Asheville to Raleigh, the elephant in the process loomed over me.  I had a statewide election that would determine whether I remained a judge coming up in just over two months.  Now it's hard enough to become a good appellate judge in sixty days but try putting together and running a campaign with little money, no name recognition, a limitation on talking about substantive issues and history against you - all in a little over sixty days.  Impossible.  And it's proven difficult and in some instances impossible in all the cases since then when new judicial appointees find themselves trying to be attentive and competent in their new judicial role and still put together a winning political campaign.  Most have lost the race.  Some like me were lucky enough to get reappointed, have two years to perform the dual tasks of judging and campaigning and have ultimately been elected on the second try.  This has been true for democrats, republicans and the ubiquitous "non-partisan" candidates.  

HB 99 is geared toward ending the madness of appointees having to run at the next election.  It gives these individuals time to adapt to their new job and work on being good judges while still slowly planning for the ultimate election.  The new proposal would have the appointees run at the second election thus guaranteeing that they have at least a couple of years to prove their ability to the voting public.  It makes perfect sense and benefits both the public expecting judges to do their job and voters who will now have a body of work to evaluate that judge's merit to being elected for a full eight year term.  Having lived through the failings of the present system, I can only say that this proposed amendment needs to be adopted.


MAR 15, 2011: Justice Orr on the Voter ID requirement of HB351: An Act to Restore Confidence in Government.

The most recent "hot" piece of legislation to boil to the top of the legislative agenda is the proposal in House Bill 531 that a Photo ID be presented at the time a person goes to vote.  Various liberal leaning groups have decried the use of a Photo ID as "repressing voters' rights" and being in violation of the Constitution. In light of those allegations, I thought it would be useful to take a look at what the N.C. Constitution requires in order to vote in our state and see how a Photo ID law would relate to these constitutional requirements.

Article VI of the state Constitution sets out in the first section exactly who can vote and what qualifications those voters need. (1) A voter must be born in the U.S. or have been naturalized. (2) A voter must be 18 years old and meet the qualifications set out in the Article VI.  The second section deals with residency requirements for voting in all elections in the state and residency requirements for voting only in a presidential election.  To vote a person must have resided in the state for one year and in the "precinct, ward, or other election district for 30 days next preceding an election."  A voter can still vote after moving from an election district but only if the move was within 30 days of the election - otherwise it would necessitate the resident registering for the proper election district.  Also, for presidential elections the General Assembly is given authority under the Constitution to reduce the time for residency but a voter is then limited to only voting for President and Vice-President.  Finally, felons, unless their rights are restored, are not qualified to vote.

Section 3 of Article VI titled "Registration" requires that "every person offering to vote shall be at the time legally registered as a voter as herein prescribed and in the manner provided by law."   Various statutory changes to the election laws have allowed for same day registration and other measures designed to increase voter turnout and simplify the voting process.  The proposed Photo ID bill would mandate that before someone could vote, they would have to present a Photo ID consistent with a list of types of Photo ID's set out in the law.  This raises an interesting and perhaps constitutionally flawed requirement that supporters of the measure need to consider.  The General Assembly does not have the authority to add "qualifications" for voting, absent a constitutional amendment.  Does the requirement for presentation of a Photo ID constitute a "qualification" for voting?  If it does then I would predict a court would strike the requirement down.

 Potentially a safer way to accomplish the same purpose would be to use the Photo ID as a means of validating that a citizen meets the constitutional requirements for voting.  Thus, when someone goes to register, it is the responsibility of the election official to determine that the conditions and qualifications required by the Constitution have been met and a Voter ID card with Photo could be issued that certifies the conditions have been met.  There is a provision in the proposed legislation for such a card if, and only if, the voter has no other acceptable Photo ID.  However, in an effort to simplify the requirement and reduce the cost of issuing these ID's other forms such as a valid driver's license is acceptable. Prospectively, it may be best to require upon registration that the Photo Voter ID be issued.

 Finally, does the requirement that a potential voter present some identification that he or she is in fact the person registered present any constitutional problem?  And if not, what would be an acceptable means of verifying the identity?  If the proposed legislation is couched in terms of a valid means of confirming identity, and the election official has the statutory responsibility to request and require such a confirmation, then it would seem that the Photo ID or any other legitimate means of identification would be constitutionally acceptable. Current law simply requires that the election official request the name and address of the potential voter to make sure that person is registered. If they are registered then the voter must sign the poll book or other type of official document. It appears that there is no current statutory requirement to verify a voter’s true identity beyond that described. While this may fall within the "hairsplitting nuances" of lawyering, it is an important distinction.  If the Photo ID is a "qualification" for voting then I would predict troubled waters ahead if and when the issue goes to court.  On the other hand, if election officials are simply required to be sure that people presenting themselves as properly registered voters are in fact who they say they are, it is not constitutionally unsound to require that verification - whether through Photo ID's or other methods.


FEB 23, 2011: Justice Orr Discusses the Significance of HB 3 and the Exclusionary Rule

Watch the video here


FEB 3, 2011: It May be Early in the Session, but Respect and Civility Set the Tone

Wednesday’s meeting of the Senate Committee on Education/Higher Education dramatically highlighted the shift in power arising from the November election.  First of course, was the fact that Co-Chairman Jerry Tillman was presiding – the first Republican to do so in over a century.  Second was the fact that the first piece of legislation being considered was a sweeping change to the Charter School Law.



While much campaign rhetoric and public pronouncements left no doubt that the new Republican majority planned on lifting the numerical cap on charter schools, the Substitute Bill handed to committee members the night before was sweeping in its scope and application.  In a room full of proponents, opponents and lobbyist, the members of the committee got their first opportunity to begin the debate.


Several aspects of the meeting stood out.  Senator Tillman, chairing his first meeting ran it with skill and fairness.  In fact, Democrat Senator Josh Stein of Wake made the point of thanking Senator Tillman for the way the meeting had been run and the evenhanded opportunity given skeptical Senators in the minority party to ask questions and make statements.  The session is early but the first impression is that the trains will run on time and everybody will have a chance to buy a ticket.


The other noteworthy performance was by Senator Richard Stevens who as one of the primary sponsors of the legislation fielded questions and shepherded the discussion.  While Senator Stevens is more readily associated with higher education issues, it was a solid decision to have him be the point man for the charter school reform effort.  Stevens’ willingness to acknowledge the wide range of controversial sub-issues that will arise in the context of the proposed legislation and to invite discussion and reasoned debate on the points will be key.  Eliminating the 100-school cap on charter schools is one thing, the broad based legislation discussed today is another.


Whether it’s the creation of a new Charter School Commission to approve and run charter schools, or the proposition to allow local governments to fund, should they choose, capital needs of charter schools, the passions on these issues will run hot.  The reasoned approach and bipartisan respect afforded Senator Stevens should make for a meaningful and constructive debate that will be useful in crafting a new course for charter schools in North Carolina.

Justice Robert F. Orr


FEB 2, 2011: HB 3: Why it is unique and why it raises interesting questions for the GA to consider

One of the more intriguing bills introduced in the first week of the General Assembly is House Bill 3:  “AN ACT TO PROVIDE FOR THE ADOPTION OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE INTO STATE LAW.”  The bill’s primary sponsors are Representatives Stam, Ingle, and Faircloth.  The bill is scheduled for a hearing on Wednesday, February 2, before the House Judiciary B Subcommittee.


For those mired in the world of criminal and constitutional law the “good faith exception” to the “exclusionary rule” is basic first year criminal law.  The U.S. Constitution as well as the N.C. Constitution protects the rights of citizens from unreasonable search and seizure.  What’s unreasonable is, of course, the stuff that cases and controversy arise from - not to mention many a good police drama on TV.


So what happens when law enforcement violates a citizen’s right to be protected from an unreasonable search and seizure?  Well, the U.S. Supreme Court created a court-made rule that any evidence obtained in that unreasonable search and seizure would be excluded from trial.  Thus, if police seized illegal drugs but obtained that evidence in an unconstitutional fashion, those drugs could not be used at trial and as a result any chance at a conviction would be scuttled.


The “exclusionary rule”, however, created a number of problems, not the least of which was what should happen if law enforcement proceeded with the search and seizure based upon a good faith belief that they were operating within constitutional bounds.  Therefore, the “good faith exception” to the “exclusionary rule” was created by the U.S. Supreme Court.


So how does all of this fit into HB 3?  Well, the N.C. Constitution, as well as all other state constitutions, has been held to have the ability to provide greater individual protections than those afforded citizens under the U.S. Constitution.  Normally, state courts interpret state constitutional provisions consistent with similar provisions in the federal constitution – but not always.


In  1988 in State v. Carter, a divided N.C. Supreme Court held that under the N.C. Constitution the rights of a citizen to be free of unreasonable search and seizure did not support a “good faith exception” to the “exclusionary rule.”  For the first time, our state’s highest court had expanded the rights of its citizens beyond the scope of protection afforded by the U.S. Constitution.


Needless to say, the prosecutorial community was not pleased at the exclusion of evidence obtained by a good faith search and seizure.   And now the General Assembly is prepared to weigh in with HB 3, but what exactly does it do?


First, the proposed legislation states the obvious that evidence obtained must be excluded only if required to be excluded by the U.S. or N.C. Constitutions.  Then, in what is a first in my recollection, the General Assembly “requests” the North Carolina Supreme Court to “reconsider and overrule, its holding in State v. Carter”.  I must confess I don’t recall a piece of legislation whose aim is to “request” a court to change an opinion.  It’s unique.  It’s different.  And it raises a very interesting question.

Justice Robert F. Orr


JAN. 27, 2011: Day One Opening Ceremonies: Oh, what a difference 45 years makes

Yesterday’s opening ceremonies at the General Assembly focused in large part on the shifting of political control of both legislative houses to Republicans for the first time in 141 years.  Yes, it was historic and the evidence of change everywhere was remarkable for all those who have watched the political process for many years in North Carolina.


However, the 2011 session should be noted for more than just political change.  Today’s group of legislators represent a seismic shift from my first opportunity to observe the General Assembly.  It was February of 1965 and I was a freshman Radio-TV-Motion Pictures major at UNC with aspirations to be a sports announcer.  But an internship opportunity with WSOC-TV News out of Charlotte opened up and I found myself taking off after class in my antiquated Ford Falcon (which occasionally had to be jump started using a screw driver,) down Highway 54 to Raleigh.


Perhaps one of the glaring changes that receives little attention is the degree of press coverage now and the technology that goes with it compared to those earlier days.  In 1965 the large unwieldy 16mm motion picture camera, used film which if not properly protected from light and using proper light readings would produce an unusable picture – nothing like the digital technology of today.  WSOC-TV was sufficiently committed to covering the General Assembly that it sent two full time veteran reporters, Bob Morse and Don Ambrose, to Raleigh for the week and paid me to do the little stuff.  WBTV also out of Charlotte only sent one reporter Bob Hager who later went on to NBC National News. Hager used a cut out figure to frame his standup report, started the camera rolling, then jumped in to replace the cut out.  WSOC had the day’s film, flown by private plane to Charlotte, dropped out of the plane’s window as it swooped down behind the station, then processed edited and had it ready for the evening news.


The print media was in full bloom with reporters everywhere and radio news had such figures at the General Assembly as the legendary Bob Farrington of WPTF.  Today, the TV cameras show up for special occasions and particular stories and the print media is virtually a ghost town operation.  Blogging, tweeting, and special interest reporting has replaced the bulk of the traditional press and instant communications changes the dynamics of covering the news.


Just as striking as the press changes is the dramatic difference in composition of the membership.  In 1965 the General Assembly was virtually the exclusive province of white male democrats.  In going back over a list of members from 1965 there are only a handful of women, no African-Americans that I could identify (I don’t think Henry Frye was elected until later), and a rag tag band of Republicans relegated to the back rows and expected to be seen but not heard.  The personalities of the majority were large and colorful.  Ralph Scott, Herbert Hyde, Lacy Thornburg, Julian Allsbrook and Robert Morgan to name a few made covering the deliberations a special treat.  And I do remember one skinny mountain representative with large hair and a mountain twang that made mine look down right sophisticated.  Who would have predicted that Jim Holshouser of Watauga County would become the first Republican elected governor in the 20th century?


So while history was made yesterday in the political context, the intervening 45 years since I first watched the gavel bang down to start the session, has produced unpredictable changes in our state and in the people who govern it as well as the way in which their actions are covered and reported.  The new leadership must move forward remembering that change is inevitable and their opportunity has now come to shape that change for the long term betterment of our state.  Time will tell if they are successful.   

-Justice Robert F. Orr