Legal Dose – Episode 2

February 29, 2012

Welcome back to the second episode of the Legal Dose! In this week’s episode we talk with Professor Camille Davidson who authored an article addressing equitable adoption that was recently published in the Columbia Journal of Gender and Law. Next up, we have a short report from the Laws of Nature examining the scientific basis behind the old weather saying, “red skies at night, sailor’s delight, red sky in morning sailors take warning.” Finally, we have a Get to Know a Charlotte Law Professor with Professor Paul Meggett. Give it a listen here.

Enjoy the second episode, and stay tuned for episode three which will have a report from a Charlotte City Council meeting, a discussion with clinic members Evan Carney, Charlie Schmidt, and Lindsey Vawter on our Democratic National Convention project, and a Get to Know a Charlotte Law Professor segment with Professor Meredith Jeffries.


Occupy Charlotte Asks the Court to Prevent Enforcement of the Camping Ban

February 27, 2012

On Friday January 24, Judge Forrest Bridges heard Occupy Charlotte’s motion for a temporary restraining order seeking  to enjoin the city’s enforcement of the anti-camping provision of Chapter 15, Section 15-26 — one of the so-called “DNC Ordinances.”  Ken Davies argued on behalf of Occupy Charlotte while City Attorney Bob Hagemann along with Charlotte-Mecklenburg Police Attorney Mark Newbold represented the City of Charlotte.

Davies opened by pointing out that the Ordinance unconstitutionally infringes on the rights of free speech and assembly under the North Carolina Constitution and effectively eradicated symbolic protest on a site traditionally recognized as a public forum. Davies asserted the City passed and selectively enforced the anti-camping ordinance in order to quash Occupy Charlotte’s political speech. Occupy Charlotte then fleshed out both procedural and substantive arguments to support their requested relief.

Procedural Argument

Davies argued that the process city council followed to enact the Ordinance was “fundamentally flawed.” Specifically, the City allowed one public comment period regarding the Ordinance then made substantial changes to the Ordinance. After it made these changes, City Council prohibited anyone opposed to the Ordinance from speaking at their meeting, while several police officials were permitted to speak at great length in support.  Clinic member Isaac Sturgill was instrumental in developing and researching this theory.  Included below is a link to the Memo in Support of Procedural Claims which makes for an interesting read concerning how the government may restrict free speech in various types of arenas.

In reply, the City argued that there is no constitutional right to address City Council and that there is no legal requirement to hold a public comment period on police power ordinances such as these. Mr. Hagemann further stated that it is “preposterous” to argue that every time a city official is allowed to speak on an issue that those on the other side should be allowed to speak as well. Even if the procedure was flawed, the City contends that it does not provide valid grounds to invalidate the Ordinance.

Substantive Argument

Davies contends, and case law supports, that tents are a form of symbolic speech and therefore may only be restricted if the regulation is supported by a compelling government interest. This is the strictest form of scrutiny under constitutional law. The City believes that it has several compelling interests in restricting Occupy Charlotte’s right to speak including aesthetics, preservation of a public space, public health, and preventing exclusion of other members of the public from a public space.

Addressing the first and second alleged interests, Davies posed the rhetorical question of whether we are willing to allow free speech to be trumped by aesthetics. The City responded by identifying the brown patches in the lawn resulting from Occupy Charlotte’s prolonged presence on the site.

Regarding public health, the City contended that Occupy Charlotte members were using a storm drain as a toilet. In response Davies pointed out that the City’s own testing was inconclusive. Davies went on to note that Occupy Charlotte had tried months earlier to obtain portable toilets for use near the demonstration site. By frustrating these efforts, Davies said, the City “has done everything possible to make this as uncomfortable as possible” for the Occupiers.

Finally, the City argued that Occupy Charlotte should not be allowed to camp on the Old City Hall Lawn because it would exclude others from using public property. The City introduced no evidence to support this and the court did not explore this issue in great detail. However, Clinic members learned through their work that Occupy Charlotte never excluded anyone from the property.

In conclusion, Davies drew the court’s attention to North Carolina’s Constitution itself. The North Carolina Constitution provides higher protection for free speech than even the Constitution of the United States. Article I, Section 14 of the North Carolina Constitution powerfully reads “freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” In fact, so greatly did North Carolina value these rights, it refused to ratify the US Constitution until a Bill of Rights was added. In Ken Davies words, the Occupiers are “true patriots trying to affect their government.” Their right to speak should not be restrained lightly.

Judge Bridges decided to take the weekend to consider the motion.

We’ll update you with the court’s decision and more documents as they become available. Here are the documents that are currently available, several of which were entirely or partially prepared by Clinic members:

Take a look at the WCNC article and the Charlotte Observer article for more information.

Tell Us What You Think: Do the government interests the City has asserted justify the restrictions placed on Occupy Charlotte and free speech?

– By: Evan Carney


Fun Police – City Still Plans to Review Zoning Laws

February 26, 2012

According to a recent article in the Charlotte Observer, the City of Charlotte Zoning Office still plans to review and modify existing laws concerning restaurants and bars. Read the article here.

This review comes amid loud and continuous protests by local restaurant and small business owners.  The owners, staff, and community members expressed concerns at the last public meeting of the zoning board in December.  The loudest opposition concerned zoning staff recommendations to ban all “entertainment” at restaurants within 400 feet of a residentially zoned area.  This would ban all inside and outside activities such as karaoke, pool tables, live music, even televisions in some cases.  There is also discussion to ban such activity in these restaurants after a set time.  Zoning staff proposed an initial time of 10:00 PM, which garnered severe outcry by community members attending public meetings on the matter.

The City Council website provides more information on the proposed changes.

City zoning staffers, dubbed “The Fun Police” by the opposition, expressed concern that the existing zoning designations for bars and restaurants are out-dated.  Modern urban living often includes restaurants, shops, and local businesses all within a short walkable distance of residential housing.  Many of the restaurants that would be affected by the proposed changes are along commercial corridors of NoDa, Plaza Midwood, Elizabeth, Monford, and South End and are often right next to residential housing.  These neighborhoods boast about their vibrant city life and are often popular because of the proximity to local shops and eateries.

But with dense urban commerce come sometimes real but often only perceived problems of noise, trash, and crime.  Noise problems seem to be the particular complaint for many of the targeted restaurants.  The City has tried to address this concern through an updated noise ordinance, but municipalities can quickly run afoul of 1st Amendment protections.  According to the above website, the City is still considering changes to its newly amended noise ordinance.

Zoning questions, on the other hand, are considered presumptively valid in North Carolina and courts will rarely overturn zoning decisions but for a few instances of procedural missteps or flagrant abuse by local legislators.

It remains to be seen how Charlotte will handle the growth of nightlife hot-spots, address concerns from complaining neighbors, and still navigate the troubling waters of constitutional protections for individuals and their businesses.  For more information on the group opposing the new measures, see recent Creative Loafing article.

– By: Charlie Schmidt


May North Carolina Disqualify Officeholders Who Deny the Existence of God?

February 23, 2012

Recently, there has been a lot of talk about President Obama’s alleged “assault on religious liberty” for requiring employers’ health insurance providers to cover birth control for women.  The opposition claims that the government is unconstitutionally intruding on their religious liberty while the President asserts he is requiring that men and women be treated equally in respect to health insurance benefits.  The discussion does raise the question of where the line dividing separation of church and state should be drawn.  But what about when the government asserts that it has the power to remove public officials  from office because they choose not to believe in the existence of “God?”

In January, the Clinic was presented with a question about a section of the North Carolina Constitution that disqualifies certain people from holding office, whether elected or appointed.  Article VI, Section 8 of the North Carolina Constitution requires that “the following persons shall be disqualified for office: . . . [A]ny person who shall deny the being of Almighty God.”

On its face, North Carolina’s disqualification directly violates the United States Constitution’s First Amendment Establishment and Free Exercise Clauses and Article VI, Clause 4 that prohibits religious tests for officeholders. After all, freedom of religion encompasses not only the right to practice the religion of your choosing, but also the right not to practice any religion at all.

In researching this project, Clinic student Jordan Dupuis found that Pennsylvania, Arkansas, South Carolina, Maryland, Texas and Tennessee had similar provisions to North Carolina’s. In 1961, the United States Supreme Court held in Torcaso v. Watkins, 367 U.S. 488 (1961), that Maryland’s bar against nonbelievers was a violation of the First and Fourteenth Amendments.  In 1997, South Carolina’s Supreme Court ruled in Silverman v. Campbell, 486 S.E.2d 1 (S.C. 1997), that South Carolina’s disqualification provision was unconstitutional, citing  Torcaso.

In his research, Jordan determined that North Carolina has not recently applied the nonbeliever disqualification, if ever having applied it at all.   And in 1970, the North Carolina Legislature tried to remove the section by amendment, but was unable to do so due to lack of support.

Because of Torcaso, North Carolina’s disqualification of nonbelievers has been likely rendered ineffective.  While this may be the case, the best route to remedy the unconstitutional prohibition would be to strike the provision by either amending North Carolina’s constitution or challenging the nonbeliever disqualification in court.  If you have any information about a government attempt to enforce this disqualification please contact Jordan Dupuis at dupuisj@students.charlottelaw.edu.

Make your opinion known in our poll below. Feel free to elaborate in the comments section.


Put Another One Up on the Big Board

February 21, 2012

The Release Dismissal Team has taken our campaign to Kentucky!


Clinic Members Visit the Coalition to Protest the DNC

February 20, 2012

Yesterday, Clinic members Charlie Schmidt, Brendan Manning, Evan Carney, and Clinic ally Isaac Sturgill attended a meeting of the Coalition to Protest the DNC. The students distributed copies of the newly passed ordinances and made a short presentation to help educate potential protesters about the scope and possible effects of the new laws. In order to guarantee peaceful, lawful demonstrations, it is vital that protesters are aware of every law that will affect them. You can read more about the new ordinances here, and here.

The Coalition to Protest at the DNC unites a broad group of social justice, labor, and community organizations to coordinate demonstrations during the Democratic National Convention.


The CRC is Sweeping the Nation!

February 19, 2012

As we have reported earlier, the Clinic is hard at work in our attempt to get all states bars which have not yet addressed the issue to ethically prohibit the use of  release-dismissal agreements.

We are still looking for attorneys barred in the following states that are willing to sign onto our inquiry: Alabama, Arkansas, Delaware, Georgia, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Wisconsin and Wyoming.

If you are barred, or know of someone who is barred, in one of these states and are interested in supporting this project, please contact Clinic member Windy Majer at majerw@students.charlottelaw.edu.

This map will keep you appraised of just how far reaching this project is. We’ll post an updated version whenever we file in a new state and/or hear from a state in which we have already filed.


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