Phil Berger Sr.’s Plan for N.C. Courts

Republicans in the General Assembly will almost certainly override Gov. Roy Cooper’s veto of new abortion restrictions on Tuesday evening. The next high-stakes showdown: budget negotiations between the state House and Senate, which will include debates over pay raises for state employees and teachers and a vast expansion of private-school vouchers. 

The budget Senate leaders released on Monday afternoon also proposes several technical but nonetheless major changes for the state’s courts and criminal justice system that will draw less attention. Among other things, the budget stacks the deck against future constitutional challenges to laws and legislative districts and makes it harder for an appeal to reach the N.C. Supreme Court. 

Read about the six provisions that caught our eye in the nearly 400-page budget proposal:

Phil Berger Sr.’s Plan for N.C. Courts

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The Brief

There was a time, not long ago, when a drag show at Durham’s Motorco Music Hall would have gone unnoticed. But that was before Republicans proposed legislation to ban drag shows and started calling performers “groomers.” 

And so the N.C. Bar Association canceled a drag trivia event its Sexual Orientation and Gender Identity Committee had scheduled for June 8 to avoid “contested politics.” 

“From a political standpoint, drag shows and drag queens have now become part of a narrative that is being highlighted in the negative,” association president Clayton Morgan told SOGI committee members, according to WFAE-FM in Charlotte, which obtained a recording of a May 8 call. 

“It’s a hotly debated issue right now, and the SOGI event will simply be misconstrued. Even though the event’s planners’ intent was not to make it that—it was not meant for the drag show to be controversial, it’s going to be perceived that way by many members of our organization and the public, and the General Assembly.” 

Morgan said he was worried “our Bar Association-backed legislative agenda will be negatively affected because political viewpoints will be inferred by the General Assembly,” according to attorney Michael F. Roessler, who broke the news of the cancellation on his website, Charlotte Citizen. (Roessler and another committee member resigned from the association after the call.)

Morgan then suggested that the committee instead host a forum discussion and “present both sides” so that they’re “not perceived as trying to advance just your agenda on the world.”

Morgan’s effort to duck the culture war met with outrage.

“Nothing disappoints like the cowardice of fair-weather friends,” Roessler wrote. “The bottom line: Morgan canceled the event so the Republican-controlled legislature won’t think the NCBA is getting too cozy with the queer community. When he granted anti-queer bigots a heckler’s veto, Morgan sacrificed us for the sake of ‘the larger picture.’ We were expendable.”

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On Our Radar

Harper v. Moore

A week after Republicans on the North Carolina Supreme Court told Republicans in the General Assembly that they were free to gerrymander at will, the U.S. Supreme Court hinted that the ruling might allow the high court to dodge a potentially explosive decision of its own. On May 4, SCOTUS asked the parties in Moore v. Harper to file briefs addressing whether the state court’s ruling made this case irrelevant. 

When Democrats on the N.C. Supreme Court struck down legislative and congressional districts as unconstitutional partisan gerrymanders last year, the General Assembly asked SCOTUS to intervene based on the “independent state legislature theory,” which asserts that the U.S. Constitution gives legislatures unchecked authority to set rules for federal elections. Critics say that indulging the theory would enable widespread voter suppression and rampant gerrymandering. 

A ruling was expected by the end of June, but the state court’s reversal gave SCOTUS an out. With the controversy now moot, the justices could punt. That’s exactly what the N.C. Department of Justice, the Biden administration, and the voting rights advocates who filed the original gerrymandering lawsuit believe should happen. 

But attorneys for legislative Republicans argued in their brief that while the N.C. Supreme Court overruled “the reasoning” of a prior gerrymandering decision, “it did not purport to disturb the judgment.” Thus, the attorneys argued, SCOTUS still has jurisdiction. 

At first blush, that alignment suggests the parties expect SCOTUS to at least partially side with the General Assembly, though the liberal group Common Cause also filed a brief arguing that SCOTUS should rule now. (During oral arguments, justices appeared skeptical of a broad interpretation of the independent state legislature theory.) 

Of note: The N.C. Supreme Court decision allows Republicans to redraw districts. But in their brief, legislative Republicans pointed out that, if SCOTUS rules in their favor, state law requires that the districts they originally drew in 2021 snap back into place. 

Durham’s HEART program

In last week’s newsletter, we told you about Durham’s year-old HEART program, in which trained, unarmed civilians respond to some 911 calls about issues such as trespassing and mental health crises. Currently operating in a third of the city for about half of the day, HEART was poised to expand. The question was how much. 

The answer: a lot. 

In her budget presentation on Monday night, City Manager Wanda Page proposed boosting the Community Safety Department’s budget by about $2.5 million, to $7.3 million. Most of that money would go to creating 27 new full-time HEART positions, roughly doubling its staff and allowing the program to respond to three times as many 911 calls. The increase will allow HEART’s four initiatives to operate citywide, seven days a week. (But not yet 24 hours a day; according to Council Member Jillian Johnson, that decision came at Community Safety Director Ryan Smith’s request. Smith did not immediately respond to a request for comment.)  

Page’s budget “repurposes” 24 vacant city positions, including five in the police department. Though it increases general fund expenditures by about 10 percent, Page didn’t seek a tax hike. 

Durham’s city council can amend Page’s proposal until June 20, when it’s supposed to adopt its budget, but the basic contours are unlikely to change.  

H.B. 778

On May 4, the state House unanimously passed a bill barring publications from demanding a fee to remove mugshots from their websites. 

There’s nothing illegal about publishing such photos—they’re public records—though news organizations have begun to question the practice. But news sites generally don’t charge people thousands of dollars to take those photos down. Some businesses do. 

House Bill 778, sponsored by Wake County Democrat Joe John, would prohibit law enforcement agencies from knowingly distributing booking photos to such websites, and for those websites to extort a fee to remove the images. But the bill only protects people who were not convicted of the crime that led to the mugshot. 

The website operator would have seven days after receiving a written request to take down the image before facing civil and potentially criminal penalties. The bill is now in the Senate’s rules committee. 

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

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