The PathLaw Blog: Laws and Lawyers for North Carolina Workers

Judge Hobgood issues written order declaring tenure repeal unconstitutional

Yesterday, Judge Hobgood issued an order putting into effect his prior ruling enjoining the repeal of teacher tenure in North Carolina.  The ruling rolls back the General Assembly’s attempt to retroactively eliminate public school teachers’ employment protections.   It also relieves school districts of the obligation to offer 25% of their teachers a small raise if they willingly abandon their employment protections.

In the course of litigation, the plaintiffs, represented by Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, produced ample evidence demonstrating that eliminating career status makes it harder for schools to attract and retain quality teachers.  In contrast, the state was unable to produce any evidence demonstrating that career status actually prevented school districts from eliminating ineffective teachers.

Judge Hobgood ultimately determined that the repeal of career status impairs teachers’ contractual rights.  He also found that it “does not further any public purpose because the undisputed facts demonstrate that, under the Career Status Law, school administrators already have the ability to dismiss career status teachers for inadequate performance whenever necessary.  Moreover, eliminating career status hurts North Carolina public schools by making it harder for school districts to attract and retain quality teachers.”

Judge Hobgood’s detailed order can be accessed here.

 

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Patterson Harkavy supports fast food workers in national day of action

On Thursday, May 15, thousands of fast food workers across the globe went on strike for higher wages, better working conditions, and the right to form a union without fear of retaliation. They were joined by fast food workers in nearly a dozen North Carolina cities.  Many of North Carolina’s fast food workers only earn the minimum wage of $7.25 an hour, and are often forced to rely on public assistance programs.  Many also complain of regular wage theft, where their employers fail to pay them for all of the hours they work.

The National Labor Relations Act protects the right of workers to engage in concerted activity, including strikes and rallies such as those held last week.  However, many are nonetheless subjected to retaliation or intimidation for their conduct.    Patterson Harkavy attorneys Mike Okun and Paul Smith worked with North Carolina’s activists to help ensure that their rights are protected, with Mike coordinating the civil and criminal legal coverage across the state and Paul working on the ground at demonstrations in Mt. Olive, Goldsboro, and Raleigh.

The global fast food organizing movement has been covered by national press, including the New York Times and Time Magazine.  North Carolina’s protests generated local press across the state, including in the Raleigh News & Observer, the Greenville Daily Reflector, and the Greensboro News & Record.

 

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Victory: Tenure repeal declared unconstitutional

At 11 am this morning, Superior Court Judge Robert Hobgood sided with Patterson Harkavy’s attorneys and ruled that legislation stripping teachers of their vested employment rights violated the North Carolina and the United States Constitutions.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and has the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections.

In 2013, the North Carolina General Assembly passed legislation stripping teachers of these employment protections.  The scheme purported to replace career status with a new system, in which teachers would be employed under one-, two-, or four-year contracts.  When a school board fails to renew an experienced teacher’s contract, the new system would deny that teacher any right to a hearing challenging that decision.

Representing a group of teachers and the North Carolina Association of Educators, Patterson Harkavy’s Burton Craige and Narendra Ghosh filed suit challenging the constitutionality of the 2013 legislation.

Today, Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries.

This historic victory has received news coverage around the state and the nation, including in the Raleigh News and Observer, the Charlotte Observer, and the Wall Street Journal.

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Patterson Harkavy files brief with the United States Supreme Court on behalf of the victims of Camp Lejeune’s water contamination

Last week, Patterson Harkavy filed an amicus brief with the United States Supreme Court in support of the rights of individuals injured by exposure to hazardous waste.  Attorneys Burton Craige, Narendra Ghosh, and Paul Smith were responsible for the brief, with Attorney Ed Bell from South Carolina appearing as co-counsel.

The amicus brief addresses one of the nation’s largest environmental disasters, occurring on Marine Corps Base Camp Lejeune near Jacksonville, North Carolina.  For decades, Camp Lejeune’s drinking water was contaminated with multiple known human carcinogens.  Although the military had reason to know of the contamination, it did nothing to address the problem until the 1980s.   Once the government finally began closing contaminated wells in 1985, it concealed the scope of the contamination for many more years.  The contamination resulted in illnesses and disorders which have devastated countless lives.

Patterson Harkavy represented five of these individuals before the Supreme Court.  Our clients include some of the highest profile advocates for Camp Lejeune’s victims, including Jerry Ensminger, a former Marine whose deceased daughter Janey is the namesake for federal legislation providing medical benefits to many of the contamination’s victims; Mike Partain, a male breast cancer survivor who has identified an ever-expanding cluster of other male breast cancer victims with similar exposure to Camp Lejeune’s water; and Tom Townsend, a former Marine who lost his infant son to Camp Lejeune’s water, and who has worked with Ensminger to uncover the extent of the base’s contamination and the full scope of the government’s efforts to suppress evidence of its malfeasance.

Patterson Harkavy’s brief was filed in CTS v. Waldburger.  At issue is a 1986 amendment to the Superfund Act.  The amendment was enacted to ensure that individuals injured as a result of their exposure to hazardous waste can bring suit when they discover their injury and its cause, even if their claims would otherwise be barred by state statutes of limitation.  The defendant in Waldburger is seeking to shield itself from legal liability under a provision in North Carolina’s statutes of limitation that prevents many legal claims from being brought more than ten years after the occurrence of the act causing an injury.  Defendant argues that since North Carolina’s provision has been judicially labeled a “statute of repose” instead of an ordinary statute of limitation, the 1986 amendment does not affect it in any way.

Many of those injured by Camp Lejeune’s water developed cancer decades after being exposed to the base’s carcinogenic water.  A ruling in favor of the defendant in Waldburger could therefore prevent these individuals from bringing any legal claims against the military.  The United States government supports the defendant’s position, and has made nearly identical arguments in a separate case in an attempt to avoid liability for its misconduct at Camp Lejeune.

Patterson Harkavy’s brief can be accessed here.  It discusses the scope of the Camp Lejeune disaster and describes how the Supreme Court’s ruling could affect countless military families that were recklessly exposed to hazardous chemicals.

The story of the Camp Lejeune contamination, its effects, and the efforts to uncover the government’s malfeasance has been told in the award-winning film “Semper Fi: Always Faithful,” and in the recently published book “A Trust Betrayed: The Untold Story of Camp Lejeune and the Poisoning of Generations of Marines and Their Families.”  Additional information can be found on the website “The Few, The Proud, The Forgotten.”

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Voucher victory as Court of Appeals permits preliminary injunction to remain in place

Advocates for private school vouchers suffered another defeat today, as the North Carolina Court of Appeals left in place Judge Hobgood’s order enjoining the state’s private school voucher scheme.

The North Carolina General Assembly enacted the scheme in 2013.  If implemented, it would divert money from North Carolina’s public schools to subsidize private school students’ tuition.  Together with attorneys from the Justice Center, Patterson Harkavy attorneys Burton Craige and Narendra Ghosh represent twenty five plaintiffs who claim the scheme violates various provisions of the North Carolina Constitution.  On February 28, Superior Court Judge Robert Hobgood agreed, finding that it likely violated the requirement that money allocated for public education be used “exclusively” for free public schools.  He therefore issued a preliminary injunction preventing the state from taking any steps to implement the program.

On March 18, proponents of private school vouchers asked the North Carolina Court of Appeals to delay the implementation of Judge Hobgood’s injunction until an appeal could be heard.  Today’s order denies that petition.  The favorable ruling is the first time an appellate court has addressed any issue in this litigation.

The brief order from the Court of Appeals can be found here.

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Hank Patterson receives the 2014 Sarah H. Davis Excellence Award

On March 14, the North Carolina State Bar Board of Legal Specialization presented Hank Patterson with the 2014 Sarah H. Davis Excellence Award.  Hank has been a board certified specialist in Workers’ Compensation Law since 2000, when he served on the committee that established the specialization.

The Sarah H. Davis Excellence Award is given annually to a certified specialist who exemplifies excellence in his daily work as an attorney and serves as a model for other lawyers.  Special consideration is given for a long and consistent record of handling challenging matters successfully, for sharing knowledge and experience with other lawyers, for earning the respect and admiration of all other with whom the lawyer comes into contact in his daily work, and for high ethical standards.  Hank is the embodiment of these values; his accomplishments and character are truly beyond match.

Congratulations, Hank!

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Burton and Narendra move for summary judgment in lawsuit challenging the elimination of teacher tenure

Burton and Narendra, together with co-counsel Ann McColl of the North Carolina Association of Educators, yesterday moved for summary judgment in their lawsuit challenging North Carolina’s elimination of teacher tenure.

Since 1971, North Carolina’s teachers who earned “career status” have benefited from two basic employments protections: first, the assurance that they could be dismissed or demoted only for one of several statutorily enumerated causes, and second, the right to a hearing in which they could contest the grounds offered for a dismissal or demotion.  In 2013, the North Carolina General Assembly passed legislation purporting to eliminate career status.  The legislation would strip career status protections from teachers who had previously earned them, and would deny probationary teachers the ability to qualify for career status.

Patterson Harkavy represents the North Carolina Association of Educators and six individual plaintiffs.  They allege that the repeal violates the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause by impermissibly denying teachers their contractual employments rights.

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Judge Hobgood issues written order enjoining voucher scheme

Judge Hobgood issued an order yesterday afternoon putting into effect his prior ruling enjoining North Carolina’s private school voucher scheme.

Patterson Harkavy’s Burton Craige, attorney for the plaintiffs, explained, “Judge Hobgood enforced the plain language of the North Carolina Constitution.  Public funds for education must be used ‘exclusively’ for establishing and maintaining a uniform system of free public schools. Judge Hobgood recognizes that ‘exclusively’ means exclusively.”

Judge Hobgood’s order likewise found that the specific manner in which the voucher scheme was financed violated the North Carolina Constitution.  The voucher scheme would have diverted $10 million from public schools to private schools, and would have required local school districts to return already allotted public funds to the state in order to fund private school students’ tuition.

Alice Hart, lead plaintiff, commented, “The 25 plaintiffs are gratified by today’s decision. It would have been a terrible mistake to divert public funds to private schools when we urgently need to devote our attention to all of our children in our public schools, raise the pay for our teachers and provide more resources to our classrooms.”

The order prevents the State from taking any further steps to implement the program, stating that “Defendants are ENJOINED until further order of this Court from implementing the challenged legislation, including the acceptance of additional voucher applications, the processing of voucher applications, the selection of voucher recipients, and the expenditure or disbursement of any public funds in furtherance of the challenged legislation.”

Click here for the full text of Judge Hobgood’s opinion.  Click here for an article by the North Carolina Association of Educators further discussing the order.

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Judge Hobgood rules in favor of Patterson Harkavy’s clients, halting private school voucher scheme

At a hearing today in downtown Raleigh, Superior Court Judge Robert Hobgood enjoined the State from implementing its private school voucher scheme.  If not for Judge Hobgood’s landmark ruling the scheme would have taken millions of dollars from North Carolina’s public schools in order to pay private school students’ tuition.  Private schools receiving taxpayer funds would not have been required to meet any educational standards, would not have been subject to any public accountability, and would not have been prohibited from discriminating against students on the basis of disability, gender, or religion.

Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, working with attorneys from the North Carolina Justice Center and the North Carolina Association of Educators, represent the case’s 25 plaintiffs.  They have alleged that the voucher scheme violates various provisions of the North Carolina Constitution.  The State School Board Association, together with more than half of North Carolina’s local school boards, is also challenging the constitutionality of the scheme.

Burton and Narendra have argued that the Voucher Legislation provides taxpayer funds for public education to private schools, in violation of Article IX, Section 6 of the North Carolina Constitution, which requires that those funds be “used exclusively for establishing and maintaining a uniform system of free public schools.”   Plaintiffs also claim that providing taxpayer funds to private schools with no standards or accountability does not accomplish a public purpose, in violation of Article V, section 2.

On Monday, Judge Hobgood denied the State’s motion to dismiss the plaintiffs’ claims.  Today, in issuing his injunction, Judge Hobgood found that that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable harm if the State was permitted to continue implementing the program.

Burton’s arguments from Monday’s hearing can be found here; his arguments from today’s hearing can be found here.  The historic victory has been covered by news outlets across the state, including the Raleigh News & Observer, the Greensboro News & Record, the Charlotte Observer.

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NC Bar Association presents Jon Harkavy with 2013 McKnight Award

On January 23, 2014, the North Carolina Bar Association presented Jon Harkavy with the 2013 H. Brent McKnight Renaissance Lawyer Award.  Jon received the award at a lunch attended by the Officers and Members of the Board of Governors of the North Carolina Bar Association.  All of Patterson Harkavy’s attorneys also attended to celebrate and congratulate Jon for his achievement.   Jon has served as the past chair of the Bar Association’s Dispute Resolution Section, the Labor & Employment Law Section and the Appellate Rules Committee, and is past president of the 18th Judicial District Bar.  He was the initial recipient of the Bar Association’s Labor & Employment Law Section’s annual award, which is named in his honor.

The H. Brent McKnight Renaissance Lawyer Award recognizes attorneys who demonstrate the “Renaissance Lawyer” qualities embodied by Judge McKnight, former chair of the N.C. Bar Association’s Professionalism Committee who died in 2004 while serving on the U.S. District Court for the Western District of North Carolina.  The award seeks to recognize those North Carolina attorneys whose trustworthiness, respectful and courteous treatment of all people, enthusiasm for intellectual achievement and commitment to excellence in work, and service to the profession and community, inspire others.

For more information, please visit the Bar Association’s website.

 

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