Three hours after the General Assembly overrode Gov. Roy Cooper’s veto of Senate Bill 512 on October 10, Cooper sued to block it from taking effect. The law effectively transfers control of several boards and commissions, including the Commission for Public Health and the Environmental Health Commission, from the Democratic governor to Republican officials and lawmakers.
Cooper also asked the court to block House Bill 488, which created a council to review changes to the state’s building code. The governor and legislature will split appointments to the council, but the law allows the General Assembly to reject the governor’s choices, and the council can only act after a supermajority vote.
Cooper argued that the laws “fail to respect the fundamental principles of representative government” and ignore “the clear mandates” of the N.C. Supreme Court. In 2016 and 2018, the court blocked similar legislative power grabs, ruling that the governor needed “sufficient control over administrative bodies” to “ensure the laws are faithfully executed.”
But current Supreme Court justices have proven much more conservative—and more deferential to lawmakers—than their predecessors. They’ve also been willing to ignore precedent they dislike.
Cooper’s lawsuit goes to a panel of three Superior Court judges appointed by Republican Chief Justice Paul Newby, who fiercely dissented in both of the cases Cooper’s lawsuit cites.
The recently passed state budget gave Newby even more control over constitutional challenges to legislative actions. Previously, the three-judge panel had to include Wake County’s senior resident judge, a Democrat, as well as judges from eastern and western North Carolina. Now, Newby can select whomever he likes.
Suits Over Transgender Health Care
A 9-year-old transgender boy and a Chapel Hill doctor filed a federal lawsuit on October 11, challenging a new state law banning gender-affirming care for minors.
Two months ago, the Republican-led General Assembly approve a bill prohibiting health care professionals from providing care such as puberty blockers and hormone treatment to anyone under 18. Doing so could cost them their medical license.
The lawsuit said the ban “violates the rights of North Carolina adolescents and their parents under the Fourteenth Amendment and the Affordable Care Act.”
The plaintiffs want a judge to issue a preliminary injunction. Whatever the federal court decides will almost certainly end up in front of the Fourth Circuit Court of Appeals, and likely the U.S. Supreme Court.
North Carolina is one of more than 20 states that passed similar laws. While federal courts struck down some of those bans this year, conservative appeals courts allowed laws in Alabama, Tennessee, Kentucky, and other states to take effect. Citing the U.S. Supreme Court ruling that overturned abortion rights, the appeals courts have held that gender-affirming care is not “deeply rooted” in American history.
This year, the General Assembly also passed House Bill 574, which prevents transgender girls from playing in female sports in school athletics, and Senate Bill 49, which requires public-school teachers to tell parents before calling a student by a different name or pronoun and prohibits them from teaching about gender identity in K-4 classrooms.
Meanwhile, transgender state employees are in limbo as the Fourth Circuit considers the State Health Plan’s exclusion of gender-affirming care in its coverage.
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On Our Radar
>> Town of Nags Head et al. v. State of North Carolina
Buried among the many handouts and provisions tucked into the mammoth budget lawmakers passed last month was a 233-word directive exempting a state-funded affordable housing project in Dare County from development and zoning rules.
On October 10, six Dare County municipalities sued in Wake County Superior Court, arguing that the law requires them to allow the project’s construction “within a town or area of a private party’s choosing … despite the fact that citizens throughout Dare County have expressed strenuous objection to the placement of the Dare County Project in certain zoning districts.”
Circumventing those objections was probably the point. The firm Dare County hired to build the project with a $35 million state grant has run into considerable opposition. But Dare County officials told WUNC that they didn’t ask lawmakers to preempt municipalities’ development regulations. Instead, the provision appears to have come from Rep. Keith Kidwell, R-Beaufort.
Perhaps coincidentally, a partner in the construction firm donated thousands of dollars to Kidwell, House Speaker Tim Moore, and other prominent Republicans. Moore told WUNC that if locals won’t support the project, he’s happy to rescind the grant.
The lawsuit alleges that because the towns will provide services to the affordable housing development, the legislature can’t deprive them of any say in where it goes or what it looks like.
The project will still have to be approved by Dare County, and county officials said that, despite the law, they don’t plan to “shove anything down a town’s throat.”
>> Stephanie Bottom v. City of Salisbury et al.
The city of Salisbury and the Rowan County Sheriff’s Office will pay a 71-year-old Georgia woman $125,000 to settle her federal lawsuit over a May 2019 traffic stop in which a police officer pulled her out of her car by her hair and slammed her onto the ground, dislocating her left shoulder.
According to court records, Stephanie Bottom was driving to her great-aunt’s funeral when law enforcement flagged her doing 80 in a 70 mile-per-hour zone. Bottom said she didn’t initially notice the cops trying to pull her over because she was playing loud music. Police eventually deployed stop-sticks—spiked strips that puncture tires—to stop her car.
Mark Benfield, a Rowan County sheriff’s deputy, approached the driver’s side to coax Bottom out of the vehicle. But as Bottom began to exit the vehicle, Salisbury Officer Devin Barkalow pulled Bottom out by her wrist and hair and threw her to the ground. He later commented that “she’d earned it.”
In an August 14 decision, U.S. District Judge William Osteen ruled that Barkalow used excessive force and said qualified immunity was not a defense. He also ruled that Barkalow’s partner, Officer Adam Bouk, could not use qualified immunity to justify his search of Bottom’s car.
Ian Mance, Bottom’s attorney, told The Assembly that the lawsuit settled after Osteen’s ruling. Osteen makes clear, Mance said, that this case shows law-enforcement officers need to give people time to comply with orders and they have to take factors like age into account.
“It’s not acceptable to give someone an order and then immediately lay hands on them,” he said.
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