A Wake County judge is expected to issue an order this week for five “Moral Monday” protester cases that could have much wider implications.
Last week, Judge Joyce Hamilton dismissed five cases citing a U.S. Supreme Court ruling that struck down a Massachusetts law allowing wide protest-free buffer zones around abortion clinics.
Hamilton, the Wake County district court judge appointed to handle hundreds of arrest cases from General Assembly demonstrations in 2013, added that, given the June Supreme Court decision, she might have ruled inaccurately at previous trials.
Facebook pages and other social media sites lit up with the news of the ruling. Many protesters offered optimistic interpretations about what it might mean for cases already heard and others still pending.
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“There is at least a reasonable possibility that Judge Hamilton’s ruling may have some effect beyond these five cases,” said Robbie Howell, an attorney with Poyner and Spruill who represented three of the five people.
Last year, 945 people were arrested while protesting inside the N.C. Legislative Building. General Assembly police charged the protesters with second-degree trespass and, in most cases, violating building rules that legislators have since attempted to change.
Since late last summer, when the protesters started going to trial in Wake County District Court, the judge has reached many different verdicts and ruled a variety of ways on requests for dismissal by defense lawyers.
Last week, when five protesters arrested on July 15 went to trial, Hamilton heard a new argument for dismissal that encompassed the ruling by the U.S. justices who unanimously decided the Massachusetts case.
The ruling, an attempt to balance free speech rights and the safety of women seeking abortions, said attempts to create spaces on public property where protesting is not allowed does not withstand constitutional scrutiny.
Scott Holmes, a Durham defense lawyer and director of the N.C. Central University Civil Litigation Law Clinic, has argued numerous times for different protesters that General Assembly police could not just ask a whole crowd to leave without specifically tailoring their accusations to individuals about the laws they were believed to be violating.
In 2013, when thousands of demonstrators gathered weekly to protest the sharp swing to the political right of the state legislature since the GOP takeover, General Assembly police and the protesters had settled into a routine that played out week after week.
The demonstrators gathered outside the building for a rally, then made their way inside to the second-floor rotunda outside the House and Senate doors and prayed, sang, clapped and chanted their opposition to the new laws and policies. Then, shortly before the chamber session was to begin, the General Assembly police chief, Jeff Weaver, announced over a bullhorn that everybody was to leave the building.
He did not go up to individuals standing in front of the doors or holding signs or acting disruptively and ask each person to leave.
In trying to compare the actions in North Carolina to the Massachusetts case, defense attorneys contend the chief let demonstrators come into a zone inside the Legislative Building and exercise free speech and then declared the area a no-speech zone.
Such action violates free speech rights, the attorneys argued in trial after trial before the U.S. justices issued their ruling.
Holmes has argued that “you can’t use a bulldozer and clear everybody out of a public forum when only a few people are causing a disturbance.” Holmes also has argued that protesters were not causing a disturbance when they rallied outside chamber doors. He and other attorneys have argued that the demonstrations, organized by the NAACP, were people exercising their free speech and constitutional rights to redress from their lawmakers.
Waiting for order
Prosecutors have argued otherwise, saying North Carolina laws gave the General Assembly police chief latitude in determining what a disturbance was and using his authority to stop the activity.
Because the General Assembly police arrests in 2013 added a heavy caseload to Wake County District Court, the N.C. Administrative Office of the Courts appointed two retired Wake County district court judges, Hamilton and William Lawton, to preside over “Moral Monday” trials and any other emergency cases.
Hamilton worked for 37 days, according to AOC records, and received $15,932. Lawton served three days and was paid $1,291.
In North Carolina, district court judges are not obligated to provide their reasons for rulings because the lower courts are not courts of record. Proceedings there are not recorded, and the judge makes decisions largely on memory. District court cases can be appealed to N.C. Superior Court, where proceedings are recorded by a court clerk and evidence is preserved for appeals.
But last week, on her last day on the bench for the trials, Hamilton told Holmes and Howell why she dismissed the cases.
Holmes was instructed to draw up an order that included key details from the trial and circulate it to prosecutors for any changes.
“The more specific the order is to the reason why the five cases were dismissed, the more valuable it will be for future defendants who come in before the Wake County court,” Howell said.
Hamilton could get the order within the next week and further change the wording or decide not to sign anything.
Ned Mangum, a former Wake County district court judge acting as the interim Wake County district attorney, said Friday that he was aware of the U.S. Supreme Court ruling in the Massachusetts case, McCullen vs. Coakley, and that he was aware of Hamilton’s actions last week.
Mangum said he would wait to read any order Hamilton issued before deciding whether to consider taking any sweeping action for all protester cases. He added, though, that each case arrives at the courthouse with an individual set of facts that should be considered.
“I’m aware of the cases that she heard this week as well as all the other ones,” Mangum said Friday. “I’m aware of the case that was cited along with the Supreme Court ruling. I would also stress that district court is not a court of record.”