>> This is NC Spin, an
unrehearsed discussion

on issues of interest
to North Carolinians.

Now here is your moderator
Tom Campbell.

>> Thank you for watching This
week's NC Spin.

Courtroom controversies are
front and center this week

as we began by discussing
a rerun of sorts.

The legislature passed the bill.
The governor vetoed it.

Lawmakers overrode the veto.
Then comes the court case

this time over
constitutional amendments.

We'll also discuss
a 473 million dollar jury

award to hog farm neighbors
against Smithfield Foods.

And it is time we want
to ask why school boards

are going to court over seven
hundred thirty million dollars

in unpaid fines.

But of course as always
we'll ask the panel

to tell us
something we don't know.

So let's introduce
this week's panel

include former Lieutenant
Governor Dennis Wicker.

John Hood syndicated
columnist and author,

Chris Fitzsimon senior
political analyst.

And Patrick Sebastian campaign
and communications consultant.

>> We'll begin our
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>> Before we get started
on this show

I want to thank
our good friend Brad Crone

for sitting in for me
the last couple of weeks

a number of viewers wrote saying

why don't you just move
out of the way

and let Brad do this
permanently from now on.

We're under discussion
about that, until such time

as that happens however
I'll try to muddle through.

So let's get started.

You almost need a scorecard
to figure out all the lawsuits

over the six constitutional
amendments

our legislature wants to put
on the ballot in November.

Governor Cooper
is one of the defendants

suing two plaintiffs suing

to prevent them from going to
a vote saying two of them

violate the separation of powers
in our state

and the NAACP
and an environmental group

are also getting into the act
trying to stop the vote.

Let's ask our panel to try
to unravel this Dennis Wicker

in order to provide
full disclosure

I need to say that your law firm
is representing the legislature

in several of these lawsuits

even though you personally
are not involved in them.

Now three former governors
have sounded off

on the separation
of powers issue

saying the legislature
is overreaching

its constitutional
authority a Superior Court judge

refused to give a TRO
or temporary restraining order

saying a three judge panel
should rule on it.

How big a blow is this
to Governor Cooper's case.

>> Well first of all Tom
it is awfully confusing

to the viewers out there.

I mean it is a lawsuit
for the week

but I don't think
this is a major blow

to the to the governor
on this last ruling.

Procedurally the judge
made a correct ruling this

has to go to a three panel
judge trial judges under the law

and he appointed those judges
one's a Democrat

one's a Republican
and one's an independent.

They will convene.

I believe they scheduled
that for this coming Friday

and they will convene and they
will determine the merits

of the temporary
restraining order.

Meanwhile the State Board
of Elections

has put off printing the ballots
and that's the real problem here

because time is not on
the governor's post

>> Supposed to have been on
August 8th.

>> Now they've said maybe next
week

and then I think what's going

on is they're trying to time it
with the ruling of the judges.

Now they hear this case
next Friday apparently.

But that doesn't mean
they rule on it that day.

So we have to worry about that.

>> Patrick does it help
or hurt that the NAACP

and this environmental group
joined into this lawsuit

or is it just make it
more confusing.

>> It does make it
more confusing.

I got to tell you I think
especially the lawsuit

with as far as the governor's
powers is going to be

maybe the toughest ballot
initiative to pass this year.

You have like you mentioned
before you have

Republican governors
come out against it.

You have a lot of people say
you know we elected a governor

to be our statewide governor
it's hard to be elected governor

and if you want to
if you want to enforce the law

you should run for governor
not the legislature.

I can be a hard thing to pass.

Perhaps that might be
the closest ballot initiative

on the whole thing.

>> Important point, because
that's and the governors

and I personally share their
concerns about the separation

of powers and implications
of this amendment.

But remember what we have
before us right now

is not a substantive debate

about whether this amendment
is good.

What what Governor Cooper
is trying to do

is to get the court to throw out
all that amendment out

and another amendment
out on judicial selection

for being ambiguous.

There's no precedent for
the Supreme Court to do that.

The Constitution clearly gives
the authority to the legislature

and ultimately to the people

when it comes to making
amendments to the Constitution.

>> So even though when we get
to actually arguing the merits

of the amendment I think I might
agree with Governor Cooper

I don't think his lawsuit
makes sense

>> Chris that the
legislature says

since there's no specific
wording on this

we can write the wording for
these amendments on the ballot.

the way we want to.

>> We'll see if the judges agree
with that.

I think it's probably a tough
sell to convince the judges

that the legislature
doesn't have the authority

to write the ballot

how they want to that a couple
other fascinating things though.

One is we are in a time
crunch now

because of the election which
points to the whole problem

why would you have
a special session

to put six amendments
on the ballot

without thoughtful
consideration public input.

Do this in the regular session.
So there will be plenty of time.

>> I though they
did it during the short session.

They didn't do the amendments
during the special --

>> They did at the end of the
short session the last week.

I mean this is not a special day
the end of the short session

this is
they've been contemplating this

for a long time.

>> They've been talking about
it.

>> They've been talking
about this a long time.

And the other thing I think
we're not talking specifically

about the voter ID amendment now

but the other issue I think is
that the public really

doesn't know
this is one of the first times

we've had an amendment
with no language.

We don't really know what we're
voting on which I think again

might not be a legal question

but it's a big
substantive issue.

>> Let's get into some specifics
here

because again the governor says

that these amendments the two
of them anyway are misleading.

Will if you can let's put up
still one. It says:

Patrick do you see where
this could be sort of misleading

to a certain extent

because essentially
what's happening here

is this is going to transfer
power from the governor

making the appointments over
to a commission which is formed

which will consider
applique names

of potential jurists forward

two to the governor
who has to appoint assembly.

>> I mean the general assembly -
>> The General Assembly

gives the governor
two choices,

and he has to choose
one of them.

>> I didn't say that right.
I'm just to get it right.

>> Really, by definition this is
political.

I mean
there's really no way around it.

It's going to be political
whether the legislature appoints

a judge or or the governor
appoints a judge.

Again you know this is this
is really unprecedented

unprecedented territory
I know in South Carolina.

The legislature appoints
all the judges.

It's kind of crazy
how much power

they have down there
in North Carolina.

Again I don't know people
are going to go for it

but those kind of ballot

and those kinds of ballot
questions who's going to know

unless there's a real there's
got to be some real money --

>> Has there been that
much of a problem with

the governor making these
appointments Dennis?

>> I don't think so.

Our judiciary has been pretty
well corrupt for a few years

and there has been no problems

that I think with the governor
appointing judges.

I do think I do think
it will make lawyers think a lot

about running
for the legislature now.

>> So they will be making
these appointments

and having a big say in it.

But we've had really across
for a solid good judiciary

is not an option I think is
the problem it's partisanship.

>> This is like this.

This amendment I think
is the most egregiously word

it's like
a partisan Madlib game.

They put all these words in
their merit based professional.

Well what it really means is
they don't want the governor

whoever he or she

is to have as much power
appointing judges or men

that really ought to say take
power away from the governor

put it in the legislature's
hands to appoint judges as John

one of the things that they're
most concerned about here

is the way this bill was worded.

>> They're concerned that
perhaps in this recommendation

this judicial
selection recommendation

they could
potentially attach a bill

which the governor
could not veto.

Is that fair.

>> Not really that that
has been argued

by some Senator Jeff
Jackson Mecklenburg County

or county kind of started
that meem on the internet.

I don't believe that is
particularly persuasive

but the argument
they do have for it

is that they you could have
changed the language

to rule that out
and they didn't change it.

Well legislature response
is why we rule out

something that's impossible.

I think that this is
a little bit like

claiming the victims
rights amendment

will actually is some sort
of sneaky anti-abortion thing

that this is conspiracy
theorizing of the worst kind.

It doesn't help us.

>> It sounds like you if you're
a lawyer and a legislator

you know
there's a high possibility

you could argue a case
in front of a judge

that you basically appointed.

>> There is actually that's why
I would suggest

the lawyers around them.

>> I agree that the attorney
general does that that's true

but that's currently the case
when the governor appoints

the vacancies and the governor
has cases that go before.

>> Let's put up still two so
that

we can look at this
the second amendment

that that Governor Cowper's
is concerned about. It says:

>> Wow a lot of words there.

Basically what they're
concerned about

is it's going to transpire
again power from the governor

to having four members
of the elections and ethics

commission from one party
four from the other party.

And it's going to further erode
the power of the government.

And I don't think that not just
don't elections. That's right.

>> That's right.
And that's a big point

but I actually think
that this is another one

I think this is going
to confuse the public.

There's lots of language
in here.

All the things to me
are case studies about

why we shouldn't do this
in a rushed short session

why we should have had hearings
that had a lot of input.

Maybe we need
to change the constitution.

We surely don't need
to change it six amendments

at a time with little thought
going back to the two of them.

>> Article 13 of our
Constitution Patrick says

that proposed amendments
should be fairly

and accurately reflected
on the ballot.

Do these pass the test.

>> Well as far as the Board
of Elections

things that's a good part
but frankly who's going to know

unless there's a
real public campaign

about the appointment process.

So it's kind of hard to say
they are really.

And I don't know
what's going to happen there

but there might be something
big coming out

with people
really do want to push.

>> Yeah I think the nature
of the problem here

is that that
constitutional provision

is there
that this ought to be true.

This ought to not
mislead the voters.

The problem is what
is the remedy here.

This is a really ultimately
a political question

the voters do get to decide
whether to do this or not.

I think on this board
of elections

Memet for example this is not
Aquash where I have concerns

I'm actively against this bill
but I think it's a bad idea

but I also will the average
citizen no doubt understand

well they'll listen to me
and of course

they'll vote on something.
It is a compelling discussion

but allowing judges to intervene
and say we don't think

this is an accurate
reading of the amendment

therefore we're going to take it
off the ballot.

That is a dangerous precedent.

>> And I lived
with the legislature

the Republican legislature
gave the authority to do this

to a commission thinking

that I think that the Republican
attorney general candidate

Buck Newton was going to win.

Then all of a sudden
we talked about this last week

or last couple of weeks

then all of a sudden
there's a 2 to 1

Democratic
majority in that commission.

Then they took that they had
a they had a session

to take that power in effect

take that power away
from the commission

they gave the power to.
So they were playing games

before
they started playing again.

This is a really important point
is the argument

I just made which I believe
because I made it.

>> Does cut both ways though.
I mean just a few weeks ago

the Republicans were saying

if you put
a caption on the ballot

that we think is misleading
that's wrong.

We're going to have
a special session.

Take it off because the voters
might be confused.

Now they're arguing well

you know the voters
have the ultimate decision.

It's their responsibility
to inform themselves.

Let's choose one
or the other argument here.

>> Well look I think if you put
12 jurors in a box and Fed

Put on your evidence

that this amendment would
come across as being confusing

they don't know what it means.
They don't understand it.

And I think
it's designed that way.

I think it's a bad

a bad proposal
put on the ballot.

>> I'm hopeful there will be
more chances here.

Patrick what about this voter
ID amendment

that they're talking to
that putting on the ballot

give us no information

whatsoever what's going to be
the proper identification.

>> I think that's going to be
a lot more cut and dry.

I mean some people are time
about the Real I.D.

coming out
from the federal government

could be
the actual identification.

Currently right now
if you need an ID

you need an ID for voter ID
when we pass these laws

we've said
we'll give you a free I.D.

If you can't you don't have one.

I think do a lot more cut
and dry than the other one.

>> Whether it's a license
or military IDs

the previous bill
you could assume

that it would be very similar
to the previous bill.

>> We understand the lines at
the Department of Motor Vehicles

are very lengthy now for people
wanting these real IDs.

Let's move over to another part
of this

which is which is this Supreme
Court race.

There's another court issue
involved in that.

We had three candidates
on the ballot there

Supreme Court justice incumbent
Supreme Court Justice Barbara

Jackson who's a Republican.

We had Anita Earls
who's a Democrat.

And right at the end
we had a filing by a gentleman

named Chris Anglin
who registered as a Republican.

The legislature thought

that wasn't
going to help Barbara Jackson.

And so they said he didn't
change his registration

party registration enough time.

He went to court got a temporary
restraining order

in order to remain
as a Republican.

Why is that hurtful
to Barbara Jackson

or to Republicans
should face a primary

and then they don't want her
to face that primary.

>> That is not a primary.

Well they're on the ballot
and they would split the vote.

>> That's. OK.

So but but the but the point
is the legislature changed

the rules
of the game in midstream

on him running as a Republican.
He complied with the rules

when he filed he complied
with all the rules.

But now that he's running
as a Republican

they won't change the rules.

I think that
it's a winnable case.

>> But John he announced
this week

that if the court
ruled against him

because of the hearing on this

is supposed to take place
the 13th I think.

If the court rules against him
he's going to withdraw.

Did he hurt his own case.

>> Of course he did.

It is transparently obvious
that his campaign

is designed to help
elect Anita Earls.

It's just pretty obvious anybody

who's being straightforward
about the facts.

However that doesn't
doesn't vitiate against

Dennis's argument

that he comply with the rules
as they were written.

Now they were written
after he filed.

And ultimately the Republicans
who are outraged about

this the original sin here as
not having judicial primaries.

If there had been a primary
in the Supreme Court race,

and Anglin really was a
Republican

and ran in the primary

then he would have had a chance
to defeat Barbara Jackson.

>> All right let's play
"what if" for a second here.

Going back to the overall
overarching court cases

that are involved here
what if the three judge panel

refuses to give a tier
to the governor

the NAACP the environmental
group what happens then Chris.

>> Well and the the ballot
so soon

will be starting to be printed

and we'll have we'll have
these amendments on the election

it seems that they are
currently work right.

And then the argument
I think people will appeal that.

But then the people
the legislators case will be

oh we're already under way

and I think so I think
that the euro in this case

is important before the
election machinery gets started.

I do want to jump in
for a second

on that Chris Angland case.

This is a fascinating example
to me of the Republicans

actually tried
before the filing deadline

to recruit other candidates
or a group

affiliated with Republicans
and they couldn't find anybody.

And then then they sort of were
hoisted on their own petard

in a way as a person switched
parties. It's fascinating.

And the bottom line
is you can't change the rules

halfway through the game.

>> I didn't know you were going
to get erudite on us.

You know he was floating
Dan Blue today

but he used to write
things for Dan Blue.

Maybe this is for Dan Blue.

>> Let's move over to a lawsuit
that ended with a jury

awarding 473 million dollars
to neighbors

on a hog waste lawsuit.

The largest verdict any of us
can remember.

The case is on appeal

and because of state law
the award will be reduced.

But farmers agribusiness experts
even elected leaders

say these
so-called nuisance lawsuits

are going to result
in Smithfield Foods

leaving our state and the pork
industry virtually disappearing.

Environmentalists say the smells
are unhealthy

and a real nuisance.

Patrick Sebastion there some 26
of these lawsuits now.

We've had three verdicts.
What was it 90 million dollar

verdict
of 50 million dollar verdict

in a 25 million dollar verdict.

This one is supposed
to be reduced to 94 million

but supporters
say it is outrageous.

The port industry says
it's outrageous.

What do you say to the charges
that it's eventually going

to bring the downfall
of the pork industry.

>> Well agriculture and farming

are the lifeblood
of our state's economy.

Still we have the second highest
resected highest producer

of hogs in the country.

So yeah this keeps happening
and these payoffs keep happening

this could be a major
major problem for our state

but we're not the only state
that has lawsuits

were lawsuits are allowed
but something's got to happen

it's got to be
some kind of regulation

or something at the beginning
of these things

to where there's not
going to be 38 lawsuits anymore.

And what I'm worried
more worried

about the farmers themselves

and the people
that are employed.

>> So at Denish midweek
this past week we got word

that a U.S. district
court judge

Earl Britt
was recusing himself from this

and a judge from West Virginia
is going to be appointed.

Was new in this case
that the heat got too hot

or what was going on.

>> It's really known Tom.
Nobody knows exactly

why Judge Brett
stepped aside on these cases.

There was a lot of complaints
I think by the pork industry

about the way
he was conducting the trials.

But I think that the jurors
looked at the evidence

and apparently just sided
with the homeowners out there

that we're having to put up
with these hog hog lose.

>> But John the lawsuits
the pork industry farmers

agribusiness say

all of this has been prompted
by outside agitators

and lawyers from Texas
and from other states

not coming from North Carolina.
We didn't have.

These kinds of what
they called nuisance lawsuits

not a legitimate claim.

>> I'm sure it is
factually accurate

that lots of out
of state interest

are involved in these lawsuits.

That doesn't mean the plaintiffs
don't have a claim.

The plaintiffs are arguing
we have property rights

where near a hog lagoon,
the smell

is a nuisance aesthetics
that affect our property right.

The better argument
the pork industry

has is that many of these
property owners move then.

After the operations were
in place after you could smell.

That's that's actually
the more relevant legal argument

not whether the lawyers
from Texas or New York

or North Carolina.

You know I'm very easily tempted
to be Antei out of state lawyer

but I'll be to resist

that temptation
say it doesn't matter.

>> First of all I think what's
fascinating about this case

is that people are acting
like these

are these are small family farm

that are being oppressed somehow
but many of them

are no fair small family farms
don't have 20000 Khagan.

OK. Few people would say these
are corporate owned Chinese

owned 20000 hog farms next door

and people are saying
all these hog farms

have always been there
you have it 20 years ago

they were 100 hogs
there not 20000.

And if you can't open
your window

and your emphysema is made worse
and you can't sell your property

or the value has gone down
by 100 percent

if you read the accounts
of this trial

it's stunning every jury
is always going to find form

because everybody can imagine
opening their window

and smell this incredible odor
and the solution

is the hog industry
the corporate hog industry

needs to figure out
the technology

to reduce this problem.

>> And remember it was it was
a jury of their peers

that rendered these verdicts
not the lawyers.

>> I got that.

However as we all know
it's easy easier to get juries

to make large awards
when people go to juries

in North Carolina
fairly conservative.

>> I mean I was really shocked
at the size

of this versus in Alabama.
Yeah.

>> No that's where the juries --

>> Smithfield says they're not
going to settle here.

They're going to keep going.
OK.

>> So if they keep going
what's the ultimate result.

Are we still going to lose them.

>> No I doubt it.

I think I think there's got
to be some kind of precedent

if you will set here
about these kind of issues

or these lawsuits
are going to keep happening.

They're never going
to be fulfilled.

And I keep watching the politics
of it's really interesting.

You have the Republicans that
are totally with the farmers

with the big farmers
and the small farmers.

And then you have the governor

and the Attorney General Moore
the trial lawyers.

So you see
a lot of politics here.

And I want to see there's
ever kind of any precedent

set either by law
or by the courts.

>> It can't be interesting
that the legislators came out

in favor of the pork industry.

I mean they obviously pass it
on now and just keep going out.

>> I may just like out of state
lawyer and statewide matter

whether the the company involved
is big or small does it matter.

Remember that even
a big corporate hog farm

has lots and lots of employees
and vendors.

There are thousands
of North Carolinians

who live livelihoods
are on the line.

But in fairness there are also
thousands of property owners

who have an answer.
This is a real clash

of interests
a real clash of rights claims.

>> This is going to be
an ongoing story really.

All right.

And I'm sure we'll be talking
about it again as weeks go on.

Speaking of talking
I think it's time for you guys

to talk a little bit

and tell us something
we don't know.

Chris Fitzsimon start with you.

>> Well we know a little bit
about him.

I'm fascinated this whole debate
about the governor's powers

and I thought it was great

that former Republican governors
have weighed in.

And I was just thinking back
to back in the old days.

North Carolina governor
didn't have the veto until 1997.

People sort of forgotten that
and it was the Republicans

who were
sort of leading the charge

to make sure we had
a powerful chief executive.

They thought that was one
of the most important things

we could do.
That was 1997.

Here we are in 2018
and they seem hell bent

on taking as much power away
from the chief executive

that they thought
was so important.

Not too long ago
and I thought it was.

It says a lot
that former Republican governors

have spoken up.

It shows this is a power grab
and not a partisan issue.

>> Patrick tell us
something we don't know.

>> So after almost two years
since Hurricane Matthew

they're still not really
construction being built.

You have states
like South Carolina

that have built houses
after the hurricane

with the same funding mechanism.

It's still not happening
in North Carolina.

And then at the same time
frankly politically I hate

to say it but at the same time
you have the governor it looks

like renovating the governor's
mansion for himself

but not pushing forward
at these things.

>> Is that something that you
didn't already know Tom?

>> Yeah that's definitely
something I did didn't know.

Dennis Wicker, tell us something
we don't know.

>> The Cape Fear River
is the longest river

in North Carolina 207 miles.

It starts in Lee County
with the confluence of the deep

in the Fall River at the end
of the Cape Fear sits the U.S.

just North Carolina U.S. Navy
wanted to scrap it.

North Carolina said no we want
to bring her home.

They collected donations
from private citizens

and dams from schoolchildren

I remember the day
that I remember let me tell you

a wonder
if we could do that today.

>> Interesting John could
tell us something we don't know.

>> Governor Cooper's been
complaining

about encroachments on executive
power by the legislature

but this week he announced
his administration

so that any legislative action
they were going to start taxing

a bunch of more online
sales calls to North Carolinians

hundreds of millions
of dollars a year.

There's no
legislative agenda ahead.

No know the court
allows states to do it.

The legislature levies taxes
this is a case

where the governor
is encroaching

on the legislature's power.
>> Wow.

Now that's a topic by the way

we're going to talk
about next week.

Well you've heard our spin
on the issues of the day.

To stay informed
all during the week.

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