The Docket: Raise The Age Changes Sent To Gov. Cooper’s Desk

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At a February meeting of the Joint Justice and Public Safety Commission, a key lobbyist for the North Carolina Conference of District Attorneys was blunt about the organization’s position on landmark juvenile justice legislation passed several years ago.

Rumors had swirled that the powerful lobbying organization was trying to do away with the law that made it so 16- and 17-year-olds accused of crimes were no longer automatically charged in the adult court system. State Sen. Lisa Grafstein, a Raleigh Democrat and attorney, asked Chuck Spahos, the conference’s general counsel and legislative liaison, to elaborate.

“Let me be crystal clear on it,”  Spahos said at the time. “…We still stand in support of the Raise the Age legislation.”

But Spahos also gave some insight into what led to a 71-33 House vote last week to approve legislation gutting a key part of the law.

The landmark juvenile justice act passed with bipartisan support and took effect in 2019, making North Carolina the last state to stop automatically prosecuting 16- and 17-year-olds in the adult court system.

It included provisions that allowed for teens accused of violent crimes to be transferred into the adult system. Spahos told lawmakers that the district attorneys conference thought that process raised questions about which judges had jurisdiction and led to prosecution delays.

In some cases, prosecutors thought superior court judges should have jurisdiction once cases had been transferred. But some judges weren’t sure. The UNC School of Government, an educational resource which often writes about new laws and their practical effects, offered a different take that kept jurisdiction with district court judges.

Last August, the General Assembly passed House Bill 186, which modified the transfer process to try to clear up the confusion. But as is often the case, attorneys do not always agree on how it should play out in the real world and those questions have not yet been addressed in the appellate courts.

For the past several months, Spahos has been lobbying for additional changes that would send 16- and 17-year-olds accused of certain violent crimes directly into the adult court system. “A small percent of serious violent offenders don’t belong in juvenile court,” Spahos told lawmakers in February. “And we believe we have a system that lets that get dealt with and we’re just looking for some clarity once the case gets indicted.”

What passed in the House included those recommendations. There is a provision that would allow a superior court judge in the adult system to send the case to the juvenile system, where judges have more leeway to order social services support and limit release of records.

But critics of the changes made last week argued that was unlikely to happen. Furthermore, they said, even if such a transfer were made, information about a teen’s case could remain on social media and web sites, making it more difficult for them to get employment and turn their lives around.

Rep. Marcia Morey, a Durham Democrat and former district court judge who presided over many juvenile cases, urged her fellow lawmakers to vote against what she described as “a rollback of Raise the Age.” As a judge, she told The Assembly, she had an array of resources she could use to hold young offenders accountable while also getting them connected to services and educational programs.

The bill was sent to the governor’s desk after last week’s vote. He has not indicated whether he will sign or veto the measure.

— Anne Blythe

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Public Autopsies, Public Defenders

The North Carolina Conference of District Attorneys has been vocal about a couple of other controversial bills this session.

Among them was House Bill 250, which in one of its iterations, would have exempted some autopsy reports from the state public records law if district attorneys notified medical examiners that a death was being investigated as a potential crime. Family members would also not be able to obtain reports.

That provision was taken out of the version of the bill that went to the Senate Rules Commission last week, but could still show up in the state budget, which in recent years has included a number of controversial policies that might not have won support as standalone bills.

Spahos explained at the Senate rules committee meeting last week why the conference of DAs was pushing for the change. Having information about the cause of death and circumstances related to it could taint a jury pool before trial, he said. 

But in some cases, making those reports public has helped correct inaccurate law enforcement narratives around events like police shootings. Spahos was asked at the Senate rules committee meeting last week to elaborate on the provision that would have changed the autopsy public records law that had been removed from the previous version of the bill

“We’re still willing to debate and have the conversation about that provision, but it’s not in this bill,” Spahos responded, signaling that the conference had not given up yet on changing the law. 

Other provisions in the bill would change the appointment process for the 13-member state Indigent Defense Services Commission, giving more power to House and Senate leaders to shape the group’s makeup.

The governor, the North Carolina Bar Association, the North Carolina Association of Black Lawyers, the North Carolina Association of Women Lawyers would no longer be able to make appointments to the commission.

Instead, speaker of the House and the president pro tem of the Senate each would get to recommend four members who could become part of the slate of eight members appointed by the General Assembly.

The chief justice of the state Supreme Court still gets one appointment, but it no longer has to be a member of the judiciary—only an attorney. The North Carolina Academy of Trial Lawyers still gets to appoint an attorney, while the North Carolina Public Defenders Association must now appoint a public defender. And the commission itself would get only one appointment instead of three.

The bill could go to the floor of the Senate for a vote this week.

— Anne Blythe

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It’s Closing Time

The North Carolina Supreme Court is going to weigh in on an ongoing legal battle over whether  Gov. Roy Cooper had the right to close private bars while allowing other establishments to remain open during the COVID-19 pandemic.

Within the last two weeks, the court has issued orders that it would review Court of Appeals rulings in two separate cases, Howell v. Cooper and North Carolina Bar and Tavern Association v. Cooper. In both, the Court of Appeals ruled against the governor. 

The two cases stem from an executive order Cooper issued on March 17, 2020 that closed all bars and restaurants, in response to the pandemic that killed an estimated 350,831 people in the U.S. that year. Two months later, Cooper issued another order allowing restaurants, breweries, distilleries, and wineries to re-open, but kept private bars closed.

That prompted the lawsuits claiming  Cooper violated bar owners’ constitutional rights. 

The Court of Appeals issued a first ruling last year and another in April. In the Howell case, the court concluded that plaintiffs’ claims are not barred by sovereign immunity – meaning the courts rejected the idea that the governor couldn’t be sued.  And in the second, the court ruled that Cooper lacked scientific evidence to support the May 2020 executive order.  

“Our careful review of the record does not reveal the existence of any scientific evidence demonstrating Plaintiffs’ bar, as opposed to the bars located in other establishments serving alcohol, posed a heightened risk at the time,” Judge April Wood wrote in the majority opinion. 

Cooper has appealed both decisions to the state Supreme Court. It’ll be months before justices rule, and other cases are also pending in the state appellate courts that question the extent of Cooper’s authority to impose emergency restrictions in the first place. That includes a case regarding then-state health secretary Mandy Cohen’s decision to shut down Ace Speedway over pandemic-era capacity restrictions. The state Supreme Court heard arguments in that case last November. 

—Michael Hewlett

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

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