North Carolina Gov. Roy Cooper announced the appointment of State Court of Appeals Judge Allison Riggs to the North Carolina Supreme Court on Monday. (AP Photo/Hannah Schoenbaum)

Gov. Roy Cooper appointed Allison Riggs to the North Carolina Supreme Court on Monday. Riggs—whom Cooper appointed to the Court of Appeals earlier this year—will complete the term of Democratic Justice Mike Morgan, who resigned last week. She previously led voting rights efforts for the Southern Coalition for Social Justice, an organization founded by the court’s other Democrat, Justice Anita Earls.

Cooper’s move all but ensures that Riggs will be the party’s nominee for the seat next year. But even if Riggs wins, Democrats will be in the minority until at least 2029. And if Riggs loses, Earls—whom the Republican-led Judicial Standards Commission is currently investigating over her criticism of the court’s diversity policies—will find herself an even lonelier dissenter. 

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Driving While Black

Black drivers have long complained that they are pulled over more often than white drivers. In 1999, North Carolina became the first state to collect data to see whether the racial disparity existed. 

It does. In 2019, law-enforcement officers stopped Black drivers at more than twice the rate of white drivers. 

But the North Carolina Supreme Court decided on September 1 that showing disparities in traffic stops—even disparities in who individual cops pull over—doesn’t prove racial profiling. In an unsigned 3-2 ruling, the court upheld a 2020 Court of Appeals decision denying Jeremy Jonnson’s motion to dismiss charges of resisting arrest and possession of cocaine and marijuana based on claims that a Raleigh police officer racially profiled him. 

Johnson, who is Black, was sitting in his Mustang in the parking lot of Raleigh North Apartments in November 2017 when Raleigh officer B.A. Kuchen approached him. The officer suspected him of trespassing and claimed he smelled marijuana. Johnson ran, but Kuchen and another officer quickly arrested Johnson and said they found cocaine and marijuana. 

Johnson filed a motion to dismiss the charges. An attorney for the advocacy group Emancipate NC testified at his suppression hearing that out of 299 drivers Kuchen had pulled over in his career, 82 percent were Black; of the 166 people Kuchen had charged, 81 percent were Black. Overall, 46 percent of all drivers Raleigh cops have stopped since 2002 were Black, though Black people comprise 28 percent of the city’s population.  

But the Supreme Court’s conservatives felt that data wasn’t enough, though they did not explain their reasoning. (Justices Richard Dietz and Phil Berger Jr. recused themselves because they were on the Court of Appeals panel that ruled against Johnson in 2020.) 

In a 23-page dissent, Earls, one of two Black Democrats on the bench, said that the court’s majority “turns a blind eye to the documented historical racial disparities of traffic stops by Officer Kuchen” and renders equal-protection guarantees “illusory.” 

The case sets a “precedent that appears to make it legally and factually impossible to establish any prima facie case of racial discrimination,” Earls said. 

As Johanna Jennings of The Decarceration Project pointed out in an amicus brief, no one has successfully mounted an equal protection challenge to racial profiling in North Carolina’s appeals courts. 

On Our Radar

>> State v. Chandler

Andrew “Junior” Chandler is waiting for a judge to decide whether to vacate his 36-year-old conviction on charges of sexually abusing children he transported to daycare. Chandler, now 66, was one of more than 150 people caught up in a moral panic about child sexual abuse in the 1980s. 

While other convictions have been overturned, Chandler remains in prison. 

On August 30, Superior Court Judge Gary Gavenus concluded a three-day hearing in Boone. The primary issue was whether prosecutors withheld evidence that might have led to a different verdict. 

Experts testified at Chandler’s 1987 trial from summaries of interviews with Chandler’s purported victims. But Chandler’s attorneys say those summaries misled jurors into believing the children gave definitive accounts of their alleged abuse. 

The transcripts—which the attorneys didn’t get until 2015—showed that the children initially denied being abused. The attorneys also accused investigators of leading the children into making false statements and argued that the experts’ characterizations of the interviews differed from what the transcripts revealed. 

It’s not clear when Gavenus will rule. 

>> Howell v. Cooper

A split Court of Appeals panel allowed a lawsuit challenging pandemic restrictions that closed bars and other businesses to proceed. 

Tiffany Howell, co-founder of the North Carolina Bar Owners Association, sued Gov. Roy Cooper and the state in December 2020, alleging that his stay-at-home orders unfairly targeted bar owners and deprived them of their ability to earn a living. While breweries and restaurants were allowed some indoor seating, the lawsuit pointed out, bars had to either move their operations outside or close. 

Judge April Wood, a Republican, said that sovereign immunity doesn’t bar Howell’s claims. Bar owners “have a fundamental right to earn a living from the operation of their respective bar business” and can seek relief for their alleged financial losses. Fellow Republican Judge Fred Gore concurred. 

Judge John Arrowood, a Democrat, dissented, saying state officials have the authority to protect residents during a public health crisis: “Curtailing the ability of our Governor to issue executive orders during a state of emergency sets a deadly precedent that will prove to have grave consequences in the future.”

>> State v. Richardson

Few of the 137 people on North Carolina’s death row inspire less sympathy than Jonathan Douglas Richardson, who was convicted in 2014 of sexually assaulting and murdering his girlfriend’s 4-year-old daughter in Johnston County. The “severity and brutality” of Richardson’s crimes led the N.C. Supreme Court to ignore “blatant errors” in Richardson’s sentencing when it rejected his appeal on September 1, Earls argued in dissent. 

Earls criticized the trial judge for not recusing himself—he had prosecuted Richardson’s mother for allegedly hiring a hitman to kill his father in 1992, though the father survived and the mother was acquitted—and for allowing prosecutors to show jurors “graphic images of the victim’s body, including five close-up shots of her genitalia.”

But Earls’ dissent avoided Richardson’s claims of racially biased jury selection. The majority’s opinion, written by Morgan, said the trial court didn’t need to consider research showing that a prosecutor had a “multi-case pattern of racially disparate juror strike rates.” 

A more liberal iteration of the court ruled in 2020 that judges must consider “historical evidence of discrimination in a jurisdiction” when evaluating so-called Batson challenges. But Morgan said that directive only applies once the evidence has been admitted. 

In this case, Morgan wrote, the judge didn’t have to admit the research because the state couldn’t cross-examine the researchers. 

The court hasn’t ruled in its remaining Batson case.

>> Turpin v. Charlotte Latin School

On August 30, the Supreme Court declined to immediately hear the case of a Charlotte couple who claim a private school expelled their children after they complained about “a politically motivated change” in the school’s culture. 

A Mecklenburg County judge dismissed most of Doug and Nicole Turpin’s claims against Charlotte Latin School in October 2022. The Turpins asked the Supreme Court to intervene in March, arguing that their case “raises issues of significant public interest and involves novel legal principles.” They also appealed to the Court of Appeals in May. 

The Supreme Court didn’t explain its refusal to bite. But it will get another look at the case after the Court of Appeals rules. 

The purported novelty of the Turpins’ case is whether private schools have an absolute right to control what they teach. Or, as their petition put it: “What rights do parents have to address the things that their children learn, see, and hear in school?”
The Turpins objected to what they perceived as Latin’s newfound liberalism. But if the state’s courts rule in their favor, the ramifications could work the other way, too, as many of the parochial schools poised to benefit from an expanded voucher program exclude students because of disagreements about religion or values.

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