Now available in Vol. IX, Issue One of the Elon Law Review is attorney Elliot Engstrom's article "'Tuning-Up' North Carolina’s Public Records Act: A Brief Discussion of Problem Areas and Possible Solutions." The article touches on several problem areas within North Carolina's public records act -- the state freedom of information law -- including the role of public information officers, the numerous personnel exemptions, and the nature of attorney's fees awards.

The article is available here. Engstrom is also available this summer to present this research to any interested groups. Email info@engstromlawnc.com for more info.

#PublicRecords #Research


Today, the United States Supreme Court denied certiorari in N. Carolina v. N. Carolina State Conference of the NAACP. The high Court's decision leaves in tact a Fourth Circuit decision from July of 2016 striking down portions of North Carolina's voter ID law. The decision seemed primarily motivated by the Supreme Court's desire to avoid wading into North Carolina-specific separation of powers issues.

After last year's Fourth Circuit ruling, Governor McCrory and the Republican legislature petitioned the U.S. Supreme Court to take up the case in the hopes that it would reverse. However, after being elected, Governor Roy Cooper asked Attorney General Josh Stein to withdraw the appeal on behalf of the State of North Carolina. The General Assembly then retained private counsel and asked to be named as a defendant in the lawsuit. The primary issue then became whether the Governor, the General Assembly, or both had the right to retain private counsel on behalf of the State of North Carolina.

Governor Cooper and Attorney General Stein hung their argument on N.C.G.S. § 147-17, which provides that "the Governor may employ...special counsel as he may deem proper or necessary to represent the interest of the State, and may fix the compensation for their services." According to Cooper and Stein, this statute gives the Governor the sole power to hire private counsel for the State, to the exclusion of the General Assembly.

However, the General Assembly pointed to N.C.G.S. § 1-72.2, which they argued authorized it to join the suit as defendants. That statute provides:

The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, shall jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution. The procedure for interventions at the trial level in State court shall be that set forth in Rule 24 of the Rules of Civil Procedure. The procedure for interventions at the appellate level in State court shall be by motion in the appropriate appellate court or by any other relevant procedure set forth in the Rules of Appellate Procedure.

The Governor and Attorney General argued that G.S. 1-72.2 only authorizes the General Assembly to intervene in existing state-court lawsuits, not federal proceedings.

The United States Supreme Court did not make any ruling on the state-specific separation of powers issues. In fact, it expressly declined to do so:

Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U. S. 482, 490 (1923).

The decision leaves in tact the Fourth Circuit's July 2016 decision. There can be no further appeal.

#Elections #FourthCircuit

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