Justice Mike Morgan announced last Thursday that he’ll step down from the North Carolina Supreme Court in early September. While Morgan has not said what he’ll do next, his resignation didn’t exactly dispel the longstanding rumors that he’s running for governor.
Morgan, 67, would face an uphill climb in the primary against Attorney General Josh Stein, who has a nine-month head start, stronger name recognition, millions in the bank, and can boast two statewide victories in elections where Donald Trump carried North Carolina. Morgan declined to discuss his plans with The Assembly last week, though he said he still has “some desire to contribute to the state.”
A Democratic insider told The Assembly on Friday that Morgan had been “telling different people different things.” Since many Democrats want to avoid a messy gubernatorial primary, the outgoing justice will likely face pressure to seek another position instead—attorney general, perhaps.
Morgan’s departure also kickstarted the political rumor mill about whom Gov. Roy Cooper would pick to replace him—and, presumably, be the likely Democratic candidate for his seat next year. The first name on insiders’ lips is Allison Riggs, Cooper’s appointee to the N.C. Court of Appeals earlier this year.
Riggs, who previously led the Voting Rights Program at the Southern Coalition for Social Justice, is a protege of Anita Earls, the remaining Democratic Supreme Court justice. Other names we’ve heard include former Court of Appeals Judge Lucy Inman, who lost to Richard Dietz by about five points in last year’s Supreme Court race, and former Chief Justice Cheri Beasley, who narrowly lost her seat to Paul Newby in 2020 and a U.S. Senate bid last year.
Court of Appeals Judge Allegra Collins and former appeals court Judge Chris Brook told The Assembly that they’re interested in the appointment as well. Cooper will likely announce his decision before the Supreme Court hears oral arguments again on September 12.
Recent history suggests that Cooper’s selection won’t affect Democrats’ chances of holding the seat. Statewide judicial elections are driven almost exclusively by party affiliation, not candidates. As Public Policy Polling director Tom Jensen told The Assembly last year, “With the judicial races, there’s almost no deviation from race to race. Either the Democrats win everything or the Republicans win everything.”
Regardless of what happens in 2024, Republicans will likely control the Supreme Court until at least January 1, 2029.
With additional reporting from Anne Blythe.
Anita Earls Sues
Justice Anita Earls—one of two Democrats and Black justices on the N.C. Supreme Court—filed a federal lawsuit on Tuesday against the state’s Judicial Standards Commission, which she said targeted her for speaking out on the “lack of diversity in our State’s courts.” Earls’ lawsuit says the commission could “expose her to punishment that ranges from a letter of caution … to removal from the bench.”
Her lawsuit will only add to mounting concerns about the politicization of North Carolina’s judiciary. (The Senate’s budget proposes giving legislators more control over Judicial Standards Commission appointments, which critics said would allow Republicans to attack judges they dislike.)
According the suit, the commission informed her on August 15 that it planned to investigate an interview she gave in June to Law360. In that (paywalled) interview, Earls criticized her Republican colleagues’ decisions to discontinue racial equity training in state courts and disband the Commission on Fairness and Equity. She also addressed the lack of racial diversity among judicial clerks and what the lawsuit describes as “the implicit bias associated with the interrupting of female advocates (and even herself as an African American female justice) during oral argument.”
Earls told Law 360 that the conservatives did not act out of “conscious, intentional, racial animus,” but criticized their allegiance “to their ideology, not to the institution.”
The commission—chaired by Republican Court of Appeals Judge Chris Dillon—accused Earls of alleging that her “Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making,” and said her comments might compromise “public confidence in the integrity and impartiality of the judiciary.”
Earls’ lawsuit pointed out that she did not discuss specific cases, but rather public policy matters. She called the commission’s investigation “obtuse, if not nonsensical.”
She also said it wasn’t the first time they’d gone after her. In March, the commission investigated a complaint about comments Earls made about administrative issues, including the court’s decision to begin “unpublishing” Court of Appeals decisions. After Earls raised First Amendment concerns, the commission dismissed the complaint in May.
But as part of the notice Earls received on August 15, the commission said it was reopening the earlier investigation. According to Earls’ lawsuit, the commission’s rules have no procedure for reopening a dismissed complaint.
The commission’s investigations have “taken a substantial emotional toll as [Earls] has tried to negotiate the Commission’s capricious line on what judges can and cannot say about important public issues affecting the justice system,” the lawsuit said. “Part of the capriciousness of the Commission is based on the fact that other judges appear able to comment publicly on similar issues without challenge.”
The lawsuit did not provide examples. But last year, the Judicial Standards Commission tweaked its rules to prevent Republican Justice Phil Berger Jr. from running afoul of guidelines that said justices who aren’t on the ballot shouldn’t endorse other candidates. The commission’s director then announced her resignation.
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The Price of a Moral Panic
In the 1980s, 150 people across the country were charged and 70 were convicted in a moral panic over sexual abuse at childcare centers. Almost all of those cases eventually fell apart.
But in North Carolina, Junior Chandler is still in jail 40 years after being convicted of abusing children while driving a van for a Madison County daycare. This week, a superior court judge will hear Chandler’s latest appeal. Reporter Michael Hewlett explores Chandler’s case.
In 1987, Andrew “Junior” Chandler was convicted of sexually abusing several young children, a case swept up in an era of alarm about abuse in daycares. He’s the only person in North Carolina still in prison.
On Our Radar
>> Rep. Chuck Edwards v. Weed
On August 17, U.S. Rep. Chuck Edwards penned a column for The Cherokee One Feather, the newspaper of the Eastern Band of Cherokee Indians, expressing dismay at the possibility that the tribe will legalize recreational marijuana during its September 7 elections. The tribe has already started to form a medical marijuana system; now tribal voters will decide whether to allow the sale of recreational cannabis at the tribe’s dispensary.
If they do, it will be the only place in North Carolina, Tennessee, or South Carolina where you can legally buy weed. Edwards, who represents Western North Carolina, is very much against the idea. “People from all over the state and the surrounding areas will be driving to Cherokee and likely the EBCI’s other non-contiguous tribal lands to buy it, light up and party,” he wrote.
“I proudly consider the tribe my friends, and I respect their tribal sovereignty,” Edwards continued. “But … the tribe’s rights should not infringe on the overall laws of our nation.”
Edwards also believes that states’ rights shouldn’t infringe on federal cannabis laws, either. He wrote that Congress’ 2014 directive not to enforce federal marijuana laws in states that legalized the drug was “gutless.” He also threatened that legalizing weed “could soon be very costly,” because he planned to introduce the “Stop Pot Act,” which “will defund governments that ignore federal law.”
Thirty-seven states currently have medical or recreational cannabis programs. But Edwards’ office told The Assembly that his Stop Pot Act would affect only the 22 states that allow recreational marijuana—most of which, though not all, lean Democratic.
>> Judge Ashley Watlington-Simms v. The First Amendment, Part II
Earlier this month, we told you about Judge Ashley Watlington-Simms, who placed Greensboro News & Record reporter Kenwyn Caranna under a gag order and ordered her notes seized—both apparent violations of North Carolina law—after discovering that Caranna was observing an open session of juvenile court, which she’s allowed to do. (By law, juvenile court sessions are open to the public until a judge closes them.)
On Monday, Watlington-Simms sent us an email that attempted to explain her thinking, at least in part. She is unable to discuss the protective order because it involved “several pending abuse, neglect, and dependency juvenile actions,” she wrote.
However, she added that children involved in those actions “have a right to privacy,” and said Rule 15 of the General Rules of Practice for Superior and District Court imposes “certain restrictions on the media as it relates to children in juvenile proceedings.” Watlington-Simms then quoted from Rule 15: “Coverage of the following types of judicial proceedings is expressly prohibited: adoption proceedings [and] juvenile proceedings.” The words “expressly prohibited” were highlighted.
But Rule 15 did not apply to Caranna, a reporter taking notes in a notepad. That much is obvious from the title of the rule: “Electronic Media and Still Photography Coverage of Public Judicial Proceedings.”
The rule’s first section—“definition”—also spells it out: “The terms ‘electronic media coverage’ and ‘electronic coverage’ are used in the generic sense to include coverage by television, motion picture and still photography cameras, broadcast microphones and recorders.”
Pressed for a more detailed explanation, the judge responded, “Even in public proceedings, there are still limitations to reporters, methods of reporting and specific disclosures as outlined in the general rules of practice for superior and district court and precedent of previous court cases that I cited in my previous response.”
“Please also notate [that] general notes regarding the policies of a particular courtroom are generally allowed,” she continued. “Especially when a reporter has made their presence known and given all parties an opportunity to be heard in reference to the observation. This gives the court the inclination that all notes taken (even those otherwise protected by other privacy laws) were lawfully obtained as outlined in the analysis in Oklahoma Publishing Co. v. District Court.”
But Oklahoma Publishing Co.—a 1977 case in which the U.S. Supreme Court reversed a state court decision barring journalists from “publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child” involved in a closed juvenile murder proceeding—doesn’t say journalists have to announce their presence in open court proceedings. It merely notes that, though Oklahoma closed juvenile hearings by default—North Carolina does not—the judge and attorneys in this case knew reporters were in the courtroom and did not object.
However, the Oklahoma Publishing Co. opinion did cite a 1976 decision in which it ruled that a “trial court was permitted in certain circumstances to close pretrial proceedings to the public,” but the judge could not “suppress publication of information from the hearing if the public was allowed to attend.”
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