— Posts About Constitutional Law

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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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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Patterson Harkavy Challenges Constitutionality of Legislation Stripping Teachers of their Employment Rights

Burton Craige and Narendra Ghosh filed suit yesterday against the State of North Carolina, challenging a recently-enacted law eliminating employment protections for experienced public school teachers.  Burton and Narendra represent the North Carolina Association of Educators and six individual teachers in the suit.

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 had 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. Read more…

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Patterson Harkavy Files Suit Challenging Constitutionality of Private School Voucher Scheme

Burton Craige and Narendra Ghosh filed suit this morning in Wake County Superior Court challenging the school voucher law passed by the General Assembly last session.  Representing a diverse group of twenty-five plaintiffs from across North Carolina, Burton and Narendra allege that the voucher scheme violates the North Carolina Constitution.  The lawsuit is sponsored by the North Carolina Association of Educators and the North Carolina Justice Center.

The voucher scheme will divert millions of dollars from North Carolina public schools to private schools.  Private schools receiving such funds are subject to almost no restrictions or obligations.  They can be operated by inexperienced and unaccredited institutions, can hire unqualified and unsafe teachers and employees, can teach using haphazard and unproven methods, can fail to improve student knowledge and performance in any measurable way, and can discriminate in admission and treatment of students on the basis of religion, socioeconomic status, or physical or mental disability. Read more…

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Recent Wrongful Conviction Settlements Total Over $12,000,000

Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, with co-counsel Spencer Parris and Chris Olson, recently obtained settlements totaling more than $12,000,000 for two men who were imprisoned for crimes they did not commit.

In 1992, Greg Taylor was convicted of first-degree murder and sentenced to life imprisonment.  After Taylor served 17 years in prison, his lawyers found SBI lab notes contradicting the official SBI lab report that blood linked Taylor to the victim.  Presented with the new evidence in 2009, the North Carolina Innocence Commission exonerated Taylor and ordered his release.

Representing Greg Taylor, Burton and Narendra filed a civil rights suit against Duane Deaver, who wrote the misleading lab report in Taylor’s case, and four other SBI officials. The Defendants were represented by seven lawyers from the Attorney General’s Office.  The litigation confirmed that the SBI had a long-standing practice of producing reports that omitted the negative results of confirmatory serology testing.  The failure to disclose this exculpatory evidence violated Taylor’s constitutional rights and resulted in his conviction. After three years of litigation, the case settled in September 2013 for $4,625,000.

For more information about the case, see the complaint, Burton Craige’s presentation at mediation, and newspaper coverage of the settlement.

In 1989 Dwayne Dail, age 20, was convicted of the rape of a 12-year old girl in Goldsboro, and sentenced to life imprisonment.  The conviction was based on the victim’s misidentification of the rapist.  DNA testing became available in the mid-1990s.  In 1995, Dail’s family members raised the necessary funds and requested that the crime scene evidence be subjected to DNA testing. The City Attorney and the Goldsboro Police Department (GPD) told them – inaccurately — that all the evidence had been destroyed.  On multiple occasions over the next 12 years, family members and staff from the North Carolina Center for Actual Innocence (NCCAI) repeated the request for the evidence.  Each time they were told that all the evidence had been destroyed.  In 2007, Chris Mumma and Sharon Stellato from NCCAI made one final request to the GPD.  An employee found an envelope containing evidence from the case, including the victim’s nightgown.  DNA testing of semen on the nightgown matched William Neal, currently in prison for other crimes.  Dail was exonerated and released after 18 years in prison.

Representing Dwayne Dail, Burton and Narendra filed suit against the City of Goldsboro, including claims for civil rights violations, negligence and obstruction of justice. The case presented complex, novel issues of constitutional law, reflected in Judge Terence Boyle’s order denying the City’s motion to dismiss.  After extensive discovery, Judge Boyle ruled that Dail had produced evidence sufficient to support his claims.  After three years of litigation, including three mediated settlement conferences, the case settled in November 2013 for $7,520,000.  For more information about the case, see the complaint, Burton Craige’s presentation at mediation, and news coverage of the settlement.

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NC Court of Appeals Rejects Free Speech Retaliation Appeal

The North Carolina Court of Appeals published a decision in a free-speech retaliation case in  Ginsberg v. Board of Governors of the University of North Carolina.  The plaintiff, who worked at NC State University as a teaching assistant professor, contended that the University had violated her First Amendment free speech rights by punishing her in a hiring decision in retaliation for her protected speech.  On November 9, 2007, the plaintiff was reprimand by professors for purportedly showing bias during her introductory statements on a film that was being presented on the Israeli-Palestinian conflict.  Just weeks later, the plaintiff was de-listed as a first-tier candidate for an open tenure track position, and some of the professors who had reprimanded her were on the search committee.  Nonetheless, affirming the trial court’s grant of summary judgment, the Court concluded that the plaintiff had failed to present sufficient evidence of causation between her protected speech and the university’s hiring decision.  The Court held that she had not supported her claim “beyond mere speculation.”

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Burton Speaks About the New Medical Malpractice Legislation

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.

Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

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Burton Presents “Billed v. Paid” Paper

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

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