NC lawsuit on political power hampered by lost emails, delayed by procedure, lawyers say

Lawmaker emails are typically deleted after three years in North Carolina, due to a policy shift last year. Now lawyers say they want old emails for a lawsuit and can't get them.
Posted 2022-11-17T22:01:20+00:00 - Updated 2022-11-20T10:30:00+00:00
A gavel rests on a desk next to legal books.

Up until last week a high-profile lawsuit questioning the legitimacy of a pair of state constitutional amendments had been stuck in procedural limbo for months, fueling new concerns of political gamesmanship in the state's judicial system.

The case has also been hampered by an email retention policy that changed last year, which ultimately may mean that records lawyers for the state NAACP hoped to review in the case no longer exist.

The procedural issue came to a head Tuesday, when the NAACP’s lawyers turned to the North Carolina Supreme Court to force the lawsuit forward in a lower court, arguing that a panel of Republican judges had needlessly delayed the case. On Wednesday, that panel moved the case forward on its own, mooting the Supreme Court request and getting the case moving again.

Now attorneys may not be able to access lawmaker records from the 2017 and 2018 discussions at issue in the case. Typically, lawmaker emails are automatically deleted after three years under a policy implemented last year, a change attorneys had predicted would impact a number of lengthy court battles over laws the state legislature passes.

Those types of lawsuits are common in North Carolina and often run for years.

“It feels like we saw this coming,” said Brooks Fuller, director of the North Carolina Open Government Commission.

Legislative Services Director Paul Coble, who oversees day-to-day operations at the statehouse and implemented this policy, didn’t respond to requests for comment last week. But he has defended the policy in the past, saying the state shouldn’t have to pay for server space to store legislative records indefinitely. His office said individual lawmakers can save their own records as long as they please, or request that the legislature do so for up to 10 years.

But lawyers representing the NAACP say they talked to lawmakers who didn’t seem familiar with this policy. They also say Coble’s office gave them the run-around as they sought emails related to the legislature’s discussions of the state’s income tax cap, which is one of the amendments disputed in the case.

After reaching out to the State Archives, the legislature’s Division of Fiscal Research, Coble’s office, individual lawmakers and former lawmakers, it seems the records don’t exist, according to attorneys with the Southern Environmental Law Center, which represents the N.C. NAACP in the case.

“It’s certainly frustrating when you know something is public record and no one seems to have it,” SELC attorney Brooks Rainey Pearson said.

The lawsuit

The underlying case, NAACP v. Moore, argues that the legislature’s Republican supermajority in 2018 shouldn’t have been able to start the process for amending the state’s constitution because that legislature was illegally seated. Lawmakers had been elected from districts that were later declared unconstitutional gerrymanders in a separate lawsuit. The NAACP’s lawsuit argues that, while that GOP majority could still pass regular bills, it couldn’t put constitutional amendments before voters.

As the case proceeded the matter got whittled down to two amendments voters approved in the 2018 elections: One lowering the state’s cap on income tax rates and another requiring photo identification at the polls.

A Superior Court judge agreed with the NAACP’s argument, and Republicans appealed. A panel of three Court of Appeals judges sided with GOP lawmakers in 2020. But in August, a divided state Supreme Court said the amendments could be thrown out. The high court’s Democratic justices, who outnumber Republican justices on the court, sent the case back down to state Superior Court for more discussion.

But before the Superior Court could hold those arguments, the Court of Appeals had to formally remand the case. Because that hadn’t happened, the NAACP’s legal team this week filed for a writ of mandamus from the Supreme Court, trying to force the Court of Appeals to act.

“Months now that this case is just in limbo,” said the SELC’s Kym Meyer, who is lead attorney on the case. “There’s nothing for [the Court of Appeals] to decide. They literally just have to sign a piece of paper and send it on down.”

That piece of paper came down Wednesday, a day after Meyer and other lawyers on the case asked the Supreme Court to force the matter. With that, their request for a writ was dismissed Thursday as moot.

The Court of Appeals panel is made up of three Republican judges: Chief Judge Donna Stroud and judges Chris Dillon and Jeff Carpenter. They declined comment through a courts system spokesman, who said judges don’t comment on active cases.

Partisan fight?

Meyer said she wouldn’t “hypothesize on what’s happening.”

But process, timing and partisanship have been issues in a number of high-profile cases as they moved up and down the North Carolina courts system. The state’s judicial elections are partisan, and the state Supreme Court has a 4-3 Democratic majority. The Court of Appeals is controlled 11-4 by Republicans.

Control over the state’s high court will flip in January when new justices, elected earlier this month, are seated. At that point Republicans will hold a 5-2 margin on the court and may decide key issues differently than the current court.

Republicans cried foul several times over the last year when high-profile cases skipped the Court of Appeals and moved directly to the state Supreme Court, fast tracking lawsuits on education funding, voter identification, redistricting and felon voting rights, according to The News & Observer. Some Republicans openly wondered that the court’s Democratic majority was rushing to finish cases before the November elections.

This time it’s the left worrying that a Republican panel was holding up a case, perhaps until a more Republican Supreme Court takes over.

The emails

Meyer said lawyers didn’t go through discovery in the NAACP lawsuit when it was first before a Superior Court judge because “we thought it was a pure question of law” — a question of what the state’s constitution allows as opposed to a case dependent on specific situation details.

The Supreme Court’s decision, though, called for new findings of fact, creating a new need for evidence, potentially including legislative emails from more than three years ago that would have been deleted under the new email policy. The NAACP’s legal team already had a lot of information on the voter identification amendment, an issue that has been litigated repeatedly over the years. What they wanted now was “information behind the thinking on the tax cap amendment,” Rainey Pearson said.

That led to a back-and-forth with Coble’s office over who is the actual custodian of those records and thus responsible for retaining them and providing them under the state’s public records act, or as part of a legal discovery process. Email chains provided by The Southern Environmental Law Center show Rainey Pearson going from one person to another, seeking information.

The legislature’s email policy, announced last year as a storage space saver, says lawmakers can pick emails to archive up to 10 years on state servers and that they can keep their own emails longer if they pull them off the state’s servers. Coble has said that, ultimately, the responsibility falls to individual lawmakers if they want to keep emails longer than three years.

The SELC’s email chains indicate at least some current and former lawmakers weren’t aware of the new policy. Former state Sen. Andrew Brock, who left the legislature in 2017 and at one point co-chaired the Senate’s tax policy-writing committee, told the SELC that he remembered the time period Rainey Pearson asked about, but he didn’t have any records, according to the emails, which were reviewed by WRAL News.

“All of my emails were on the NCGA server,” Brock wrote. “I assumed they were backed up and should be available.”

Brock told WRAL News the legislature might need to revisit its email policy, but that lawmakers get hundreds of emails a day. There are 170 of them, with some turnover every year as people resign or lose re-election. “That is a lot of stuff you’ve got to store,” Brock said.

Fuller, the Open Government Commission director, said the apparent confusion “just cries out for clarification,” that the archiving process needs improvement and that this situation is likely to repeat itself.

“We should really be investing in public record programs that retain public records for as long as possible rather than trying to clear out the clutter,” he said. “Because we don’t know that records are pertinent to really meaningful lawsuits the day that they’re created.”