Courts Newsletter: A Supreme Challenge

The state Supreme Court primary is causing some intra-party tension for Democrats.

Last year, Gov. Roy Cooper appointed Allison Riggs to fill the seat of Justice Mike Morgan, who is running for governor. Riggs is now running to keep that seat, and she’s facing a challenge from Superior Court Judge Lora Cubbage, a more moderate candidate with less support among top Democrats.

Republicans, meanwhile, have rallied around Court of Appeals Judge Jefferson Griffin as their party’s 2024 nominee.

Morgan said he recommended that Cooper tap Cubbage to succeed him, noting that she would maintain Black representation on the court and had similar trial experience. Morgan said he sees Cooper’s decision not to take his advice as possible retribution for him running against Attorney General Josh Stein, and as contradictory to the governor’s stated efforts to diversify the bench. 

Cooper endorsed Stein for governor shortly after Morgan announced he was leaving the court.

“While I cannot say with absolute certainty that there was any retribution or any negativity connected with my recommendation of Judge Cubbage and her ultimate lack of appointment to the seat, I will just say that I and many others deem the timing to be quite curious,” Morgan said.

Cubbage said Cooper offered her no explanation about his reasons for picking Riggs.

“What Gov. Cooper said to me is, ‘I’m going to put Allison Riggs on the Supreme Court,’” Cubbage said. “And I ask him why. And he said he doesn’t give why’s.”

Cooper’s office didn’t respond to requests for comment.

Riggs, who has long argued in court on behalf of Black voters seeing their political influence diluted, said she’s more than capable of representing the party’s racially diverse electorate.

“I’ve spent my entire career fighting for racial justice,” Riggs said. 

Justice Anita Earls said Riggs is more than qualified to represent racial minorities, citing her  legal work with the Southern Coalition for Social Justice.

“It is destructive to have the notion of a Black seat,” Earls said. “That’s just not how diversity should operate in good government. … I applaud the governor for resisting the temptation to consider Mike Morgan’s seat the Black seat.”

Earls, who will run to keep her seat in 2026, has endorsed Riggs. Morgan said he isn’t endorsing Riggs or Cubbage in the Democratic primary.

– Bryan Anderson 

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Have any suggestions for improving this newsletter or stories we should look into? Email us at courts@theassemblync.com.

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The UN Weighs In

N.C. Supreme Court Justice Anita Earls’ recent legal clash with the Judicial Standards Commission drew international attention this week. 

Margaret Satterthwaite, United Nations Rapporteur on the independence of judges and lawyers, expressed concern that the commission investigated Earls for “drawing attention to the potential role that implicit biases based on race, gender and political affiliation play in the decision-making of the Court.” She said judges must be free to address issues of public importance, such as racism. 

“Like other citizens, judges are entitled to freedom of expression, provided they conduct themselves in a way that preserves the dignity of their office, and the impartiality and independence of the judiciary,” Satterthwaite said in a statement. “Judges should not face disciplinary investigations for speaking out on issues of vital public interest in a democratic society.”

The commission investigated whether Earls’ comments to legal publication Law360 violated judicial ethics prohibiting judges from saying anything that would undermine the public’s confidence in the judiciary’s integrity and impartiality. Earls filed a federal lawsuit last August against the commission, alleging that its investigation violated her First Amendment rights. 

She dropped the lawsuit in January after the commission dismissed the complaint against her. As we reported last month, the investigation was the latest example of the increasing politicization of the state Supreme Court. Earls is at the center of it, as one of the state’s top civil-rights attorneys, the only Black justice, and one of two Democrats on a court that they controlled just two years ago. 

Satterthwaite said the commission’s treatment of Earls was possibly racist and sexist, and noted that other justices have “accused their colleagues of partisan conduct” but did not face a commission investigation.

“By singling out the speech of the only African American woman on North Carolina’s Supreme Court, the Commission’s actions raise the question of discrimination on the basis of race and gender,” Satterthwaite said. 

–Michael Hewlett

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Department of Corrections

Gov. Roy Cooper and others are trying to get employers to see the more than 18,000 men and women released from the state prisons annually as potential assets.

“Our state’s correctional facilities are a hidden source of talent–people with diverse experiences and skills who really want to change their lives,” Cooper told a crowd at the Executive Mansion last week in Raleigh. “There are a lot of them there who do.”

The governor signed an eight-page executive order to much fanfare on January 29, that establishes “a unified approach to improving education, rehabilitation, and reentry services for incarcerated and formerly incarcerated people in North Carolina.”

The goals in the new “second chance” project align with Reentry 2030, a national initiative led by the Council of State Governments working to improve success for people leaving prisons and cut down on recidivism. Alabama and Missouri have also joined.

Among the goals Cooper and his administration laid out:

• Increasing the number of high school and post-secondary credentials earned by incarcerated people by 75 percent;
• Upping the number of post-secondary degrees offered in the prison facilities by at least 25 percent;
• Giving incarcerated students more access to Pell Grant programs by increasing partner numbers by 30 percent; 
• Increasing the number of apprenticeships completed by justice-involved men and women by 50 percent;
• Reducing the number of people released from prisons without a stable home to go to by at least 50 percent;
• Providing reentry assistance in every county 
• Getting eligible people signed up for Medicaid before their release.

Adult Corrections Secretary Todd Ishee described the strategy and goals as “ambitious,” but “hope-centered.”

Cooper said that while there already are funds available to support many of the initiatives, he plans to send funding requests to the General Assembly this year. 

–Anne Blythe

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On Our Radar

The North Carolina Court of Appeals is weighing whether to rehear a case that raises questions about the obligation of private schools to parents, just as the state begins accepting applications for a newly expanded voucher program.

The lawsuit stems from a decision the prestigious Charlotte Latin School made in September 2021 to kick out two children whose parents were involved in the group “Refocus Latin,” which opposed the school’s response to the murder of George Floyd. 

The parents, Doug and Nicole Turpin, claimed that the school shifted to “a political culture and curriculum, which required students to read inappropriate or political materials and resulted in students being asked inappropriate and politically charged questions.” They sued the school in April 2022, alleging, among other things, that Charlotte Latin had committed fraud in promising “no blowback” against the children of parents who voiced complaints. 

Last month, a panel of three Court of Appeals judges sided with the school, concluding that the enrollment contract the Turpins signed allowed the school to end the relationship, particularly because the Turpins raised their complaints repeatedly. 

The contract required that families meet terms laid out in a document called the “Parent-School Partnership,” which permitted the school to end a child’s enrollment “if it concludes that the actions of a parent/guardian make such a relationship impossible or seriously interfere with the School’s mission.” Judges Carolyn Thompson, John Arrowood, and Julee Flood found that the Turpins’ behavior did both.

The family’s attorney, Chris Edwards, filed a motion on January 17 for the full 15-member court to hear the case “en banc.” 

“If the panel opinion is allowed to stand, children across our State face retribution,” Edwards wrote. 

He argued that the case was particularly ripe for further review because of the anticipated expansion of the Opportunity Scholarship program to any family, no matter their income. 

“Now more than ever, parents need to know that they can contact their children’s private schools to express concerns or ask questions without fear of retaliation,” Edwards wrote.

The argument that the Turpin case will have systemic consequences is “speculative and without merit,” Charlotte Latin’s attorney, William Robertson, wrote in response. 

He pointed out that the three-judge panel chose to label their opinion “unpublished,” meaning it is unlikely to serve as precedent in other cases.

The Turpins have previously argued that this case is of “significant public interest” and failed to persuade the decision-makers, Robertson noted. In March, the family tried to bypass the Court of Appeals and go straight to the North Carolina Supreme Court, but the justices denied their petition.

The Court of Appeals has until mid-February to decide whether to rehear the case. If it declines, Edwards said he plans to again ask the Supreme Court to weigh in.

–Carli Brosseau

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Around the State

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