Friday, February 18, 2011

The battle of the beaches, 2011

The N.C. Coastal Federation, one of several institutions that have worked to prevent manmade damage along the N.C. coastline, is worried about legislation in the 2011 General Assembly to allow the use of terminal groins or other hardened structures in an attempt to stabilize inlets.  Groins, jetties and seawalls have long been banned because of the damage they can create to adjoining property along the coast, often as the result of scouring away of adjacent beachfronts.

Todd Miller, the founder and executive director of the federation, sent the following letter to legislators Friday:

February 18, 2011

RE:  Please Protect Our Beaches

Dear Senator,  

Don’t succumb to demands to radically change 25 years of coastal policy that have made our barrier island beaches the envy of the nation.

Some oceanfront property owners built in dangerous places, and now they want to build rock walls to protect their risky investments. They are asking you to weaken the state’s longstanding ban on jetties, groins and seawalls to allow “terminal groins.” This will put the fate of our beaches into the hands of agencies and judges rather than the legislature.

Allowing terminal groins will ultimately force taxpayers to foot the bill to protect risky coastal investments. Weakening this prohibition commits taxpayers to a never-ending and escalating fight against the sea. Those who built too close to the sea will keep asking for more destructive remedies when terminal groins don’t work.  Attached is a fact sheet that explains why terminal groins are bad for our beaches and pocketbooks.

Take a moment before you cast your vote, and read a portion of our state Constitution you swore to uphold upon taking office. Article XIV, Section 5, reads:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open lands, and places of beauty.

 How does marring our beaches with walls of rock that will destroy them meet that constitutional mandate?

 We hope you will bring wisdom and conservatism to this debate, and exercise extreme caution and skepticism about claims by high-priced consultants and their paid lobbyists that more government management of our beaches will result in quick, inexpensive fixes to erosion problems. Please do not hesitate to contact me if you have questions or comments or would like to talk more about this.

Wednesday, February 16, 2011

Battle of the ex-chiefs on med mal

Last week former N.C. Supreme Court Chief Justice Bev Lake, a Republican, weighed in on a cap on medical malpractice claims. A monetary cap such as Senate Republicans are considering would be unconstitutional, he said. Here's a link to Lake's letter to lawmakers:
But this week another former chief justice, Democrat Burley Mitchell, took an opposite view. Under the Dome reports that in a letter to Senate Judiciary Committee chair Pete Brunstetter, R-Forsyth, Mitchell wrote, "We are aware of no binding legal authority that should give the General Assembly any pause in enacting a statutory cap on recovery of noneconomic damages in medical malpractice actions." In fact, he went on, "the law of North Carolina...indicates that the North Carolina Supreme Court would follow the majority of courts that have addressed this issue and hold that such a statute is constitutional."

Here's a link to the Dome report:

The proposed cap on jury awards, Senate Bill 33, will be discussed in a public hearing Thursday at 10 a.m. in room 1027 of the Legislative Building on Jones Street in Raleigh.

Friday, February 11, 2011

Will Guv's State of the State be a Valentine? Doubt it

The General Assembly has invited Gov. Bev Perdue to deliver her biennial State of the State message on Monday night -- Valentines Day. But given the verbal scuffling of the past week, no one expects the governor to deliver a Valentine to the honorables. Both sides are engaged in some interesting maneuvering as Republicans have begun running the General Assembly for the first time in more than 100 years and as Perdue considers how to make the most of her second legislature as governor leading up to next year's reelection campaign. 

Perdue and the Republican legislative leadership have made nice a few times and worked together on a couple of matters, but things got tense when, after agreeing to run a bill giving the governor more authority to order spending cuts worth $400 million, Republican leaders also added in $140 million or so worth of additional cuts. These included trimming more than $8 million in spending under two of the state's economic development funds that are used to seal the deal and persuade industries to create new jobs here. 

Democrats objected, saying that the Republican cut would hurt the state's job recovery. Republicans responded that they were only trimming spending in funds where there was still a hefty balance, and that in any case there was other money to recruit companies and in a pinch the Perdue administration could always ask Republicans to sponsor a bill for a really big project.  Democrats responded by criticizing Republicans' "job-killing" budget bill. (Sound familiar?) Republicans threw back some barbs.  And so it went, back and forth.

Here's my view: The Republican initiative was a reasonable way to get a head start on the job of cutting several billion from the 2011 budget that begins  July 1.   Perdue might have spoken up earlier to give Republicans time to find another place to cut the $8 million before their plan was announced. But even after Perdue raised objections, I believe Republicans could have found a place to trim what they needed. Surely a compromise could have been worked out. I think one almost was, but someone balked at the last moment.

Now both sides are staked out, and the question is whether Perdue will veto the spending cut the legislature just passed.  It certainly appears that both sides are making a statement they consider important.

Republicans are saying Look here: We worked fast, took on the tough job of finding cuts, picked some trims that aren't popular but represent the sort of hard work we have to do this year to balance next year's budget and get the state's finances back in good shape.

And if Perdue vetoes the bill, which is plausible because Republicans don't have enough GOP voter to override, she'll be saying this is all about jobs and neither party should tie her hands when she's trying to make up for the loss of hundreds of thousands of jobs that disappeared in recent years, so lawmakers should find another place to cut.

Valentines Day might not be a time when many folks would willingly tune in to a political speech, but this one might be worth the time to watch.  It's a great opportunity for Perdue. And sure enough, Republican leaders Phil Berger, the Senate President Pro Tem, will respond to her speech right after, and House Speaker Thom Tillis will be standing by for further comment.

Wednesday, February 09, 2011

Former GOP chief justice says cap on medical claims "unconstitutional"

Former GOP Chief Justice says cap on awards "unconstitutional"

Former Republican Chief Justice Bev Lake, a one-time GOP nominee for governor, has told state Senate leaders that a proposed cap on jury awards would be unconstitutional. Lake's letter comes at an awkward time for the new Republican majority running the legislature for the first time in more than a century. The majority wants to impose a $250.000 limit on non-economic jury awards in medical malpractice cases, as a way to hold down medical insurance costs, and no doubt won't welcome Lake's conclusions about the proposal. 

Lake told Sen. Pete Brunstetter, R-Forsyth, chairman of the Senate Judiciary committee, that such a cap is "unnecessary as well as unconstitutional."  The bill in question is S 33.
Lake said 'North Carolina citizens have a “sacred and inviolable” right to have a jury determine the amount of compensatory damages, including non-economic damages, under our Constitution.  The right to have a jury make that decision cannot be eliminated or restricted by the General Assembly.'

Lake has been a Democrat as well as Republican during his carrer. He served in the state Senate and as a depty attorney general, and was elected chief justice of the state Supreme Court in 2000.

Here's the text of Lake's letter to Brunstetter:

 Dear Senator Brunstetter:

I understand that the Senate Judiciary I Committee will soon be considering Senate Bill 33, which would implement several medical liability reforms.  In my opinion, Section 3 of the bill – the proposed  cap on non-economic damages – is unconstitutional.

I served on the North Carolina Supreme Court for 12 years, and was Chief Justice from 2000 to 2006.  I previously served as a Superior Court Judge for six years, was a State Senator for two terms, and was Deputy Attorney General for seven years. Throughout my legal career, which has spanned over 50 years, I have sought to uphold the North Carolina Constitution, the foundation of our laws.

For over 200 years, Article I, Section 25 of the North Carolina Constitution has provided that, in “matters respecting property,” the right to trial by jury is “sacred and inviolable.”  Our Supreme Court has repeatedly stated that, “under the North Carolina Constitution, a party has a right to a jury trial in ‘all controversies at law respecting property.’”  Dockery v. Hocutt, 357 N.C. 210, 217, 581 S.E.2d 431, 436 (2003) (quoting N.C. Const. art I, § 25).  The Court has also long recognized that compensatory damages is a form of  “property” protected by the constitutional right to a trial by jury.

In Osborn v. Leach, 135 N.C. 628, 633, 47 S.E. 811, 813 (1904), the Court determined that a libel law was constitutional, even though it abolished a plaintiff’s right to recover punitive damages.  Id. at 632-33, 47 S.E. at 813.  The Court noted, however, that if the law had restricted the recovery of actual or compensatory damages, it would have been unconstitutional.  Id. at 640, 47 S.E. at 815.  In drawing this distinction, the Court stated: “The right to have punitive damages assessed is . . . not property.  The right to recover actual or compensatory damages is property.”  Id. at 633, 47 S.E. at 813 (emphasis in original).  The Court elaborated:

The plaintiff is entitled to recover compensation for mental and physical pain and injury to reputation.  These are actual damages, and these are property.  The right to recover damages for an injury is a species of property and vests in the injured party immediately on the commission of the wrong.  . . . Being property, it is protected by the ordinary constitutional guarantees. . . . It cannot be extinguished except by act of the parties or by operation of the statute of limitation.

Id. (emphasis in original).

When I served as Chief Justice, a unanimous Court reaffirmed this principle in Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).  We stated that compensatory damages “represent a type of property interest vesting in plaintiffs,” while punitive damages are not a vested property interest.  Id. at 177, 594 S.E.2d at 12; see also id. at 179, 594 S.E.2d at 14 (concluding that N.C. Gen. Stat. § 1D-25 did not violate Article I, Section 25 because the statute restricted only punitive damages).

The clear import of Osborn and Rhyne is that Section 3 of SB 33 is unconstitutional.  North Carolina citizens have a “sacred and inviolable” right to have a jury determine the amount of compensatory damages, including non-economic damages, under our Constitution.  The right to have a jury make that decision cannot be eliminated or restricted by the General Assembly.

The Georgia Supreme Court recently reached the same conclusion, striking down a similar law in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010).  In 2005, the Georgia legislature enacted a $350,000 cap on non-economic damages in medical malpractice cases.  Georgia’s state constitution protects the right to a jury trial, as does ours, stating “[t]he right to trial by jury shall remain inviolate.”  Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a).  Because the determination of damages has always been the jury’s province, and non-economic damages have always been a component of compensatory damages, the damages cap unconstitutionally infringed on the right to a jury trial.  Id. at 223.  The Court concluded: “The very existence of the caps, in any amount, is violative of the right to trial by jury.”  Id. 

 Finally, the cap on non-economic damages is unnecessary as well as unconstitutional.  As a Superior Court Judge, I presided over many civil jury trials.  If a verdict is excessive, the trial judge has the well-established power and duty to offer the plaintiff the choice between a remittitur (decreased damages award) and a new trial.  The trial judge, unlike the legislature, has actually heard the evidence and can make a sound judgment about whether the verdict is excessive.  In doing so, the judge operates within the Constitution; instead of imposing his own view of the proper amount of the verdict, he must instead give the plaintiff the choice of a reduced verdict or a new trial.

The legislature has the responsibility to enact laws that are constitutional. With that duty in mind, I hope that your committee will remove Section 3 from SB 33. 

Thank you for your consideration.

With kindest personal regards, I am, cordially,

 I. Beverly Lake, Jr.

Cc: Members of the Senate


Tuesday, February 08, 2011

More pulling for UNC than Duke, poll says

Proving that you can poll on anything and get folks to read it, Public Policy Polling reports than more than a third of North Carolinians will be pulling for the UNC Tar Heels in Wednesday's matchup with Duke's Blue Devils in men's basketball at Cameron Indoor Stadium while a little less than one-fourth will be pulling for the Blue Devils. Well, UNC has graduated a lot more people than Duke over the years. But what in the world are the other 40 percent or so of residents who don't favor either one thinking?

PPP, a firm that does a lot of work for Democrats and which throws in questions about other pressing issues of worldwide importance -- such as ACC basketball from time to time -- also found that Tar Heel fans have a better impression of Duke Coach Mike Krzyzewski than Blue Devil fans have of Roy Williams  -- and that Coach K has better overall popularity numbers.

There's plenty of fodder here to hash over, so have at it. But as a former Carolina cheerleader (1965-67) I've got to say: Go Heels!

From PPP's news release this morning:

PPP's annual poll in conjunction with the first Carolina-Duke game finds that 37% of North Carolinians will be rooting for the Tar Heels tomorrow night compared to 22% in the Blue Devils' corner. The largest group of people in the state, at 41%, is indifferent.

The numbers show that Duke has not received any bounce in popularity from winning the national championship last year. The 2010 version of this poll found UNC favored by a 35-21 margin so things have basically remained exactly the same. Every demographic subgroup of the population we poll by ideology, gender, party, race, age, and region is rooting for UNC. There are some disparities though that match the conventional wisdom about each school's fan base. For instance Democrats prefer UNC by a greater than 2:1 margin at 43-21, but Republicans do so only narrowly at 31-26.

Mike Krzyzewski and Roy Williams both remain overwhelmingly popular with the North Carolinians who have an opinion about them. Krzyzewski is viewed favorably by 47% of voters in the state to 14% with a negative opinion. That's a very slight improvement from a 44/13 spread a year ago. 38% of voters have a positive view of Williams to just 10% with an unfavorable one, numbers nearly identical to the 39/10 he posted last year.

Contrary to what you would expect most respondents describing themselves as UNC fans have a favorable opinion of Krzyzewski- 45% see him favorably to 25% with a negative view. Even among those describing themselves as hardcore Carolina fans Coach K's favorability is 45/38. It's a relatively small segment of the UNC fan base- although in the interest of full disclosure that small segment includes me- that truly hates Krzyzewski.

Duke fans are not as charitable toward Williams. Overall Blue Devils are pretty evenly divided on the UNC coach with 32% holding a favorable opinion of him and 33% with a negative one. Self described 'hardcore' Duke fans are not friendly to Roy at all though- just 27% rate him positively while 51% say they don't like him.

The other interesting thing to look at within this poll is how Tar Heel fans feel toward Williams. This poll was conducted two weeks ago, before the team's impressive recent stretch against Miami, NC State, Boston College, and Florida State. 64% of Carolina fans at that time said they had a favorable opinion of Williams to only 3% with an unfavorable one. Among 'hardcore' UNC fans 90% expressed support for Williams with 1%- literally a single respondent- saying they had an unfavorable opinion of him. I can guarantee you Barack Obama would love it if 90% of Democrats were behind him. There may be some folks on message boards and calling in to radio talk shows who are UNC fans and unhappy with Williams but they account for a very, very meager portion of the overall fan base.

This analysis is also available on our blog:

Monday, February 07, 2011

Wind energy initiative coming to North Carolina

The U.S. Departments of the Interior and Energy have announced a $50 million strategic plan to encourage development of wind energy in offshore areas of the Mid-Atlantic -- and  it targets seven Wind Energy Areas, including offshore North Carolina, where environnmental studies and approval processes will be sped up.

 Four of those areas -- Delaware, New Jersey, Maryland and 165 square miles off Virginia's coast -- will get early enviornmental reviews, reducing the time it takes to get approval of offshore wind turbine facilities, the departments said.

  In March, the departments expect to add Wind Energy Areas offshore of Massachusetts and Rhode island, and in the South Atlantic region, "namely North Carolina, this spring."

  You can read more about these initiatives at

  The $50 million in research and development funding is meant to help reach the president's goal of generating 80 percent of the country's electricity from clean sources by 2035. The list includes up to $25 million over 5 years to support technology development, including innovative wind turbine design tools; up to $18 million over 3 years for environmental studies and research as well as wind market analysis; and up to $7.5 million over three years to develop the next generation of wind turbine drivetrains, a technology considered critical to produce cost-effective power from wind turbines offshore.

Meanwhile, Pete Danko at the Wedsite Earth Techling writes that a Spanish company is proposing a 15O turbine wind farm on flat farmland in the northeastern part of the state:

Much of the attention regarding wind power generation in North Carolina has been focused offshore, but the world’s biggest wind-power developer has other ideas: Iberdrola Renewables, part of the Spanish company Iberdrola Renovables, said that after two years of laying the ground work it had officially applied to build the state’s first utility-scale plant.

Iberdrola has in mind a 150-turbine, 300-megawatt capacity plant on a 20,000-acre swath of private, flat farmland in the northeast corner of the state, but it struck a cautious tone in announcing the filing of an application with the North Carolina Utilities Commission. “The filing today represents the first step of many regulatory reviews that must be completed before Iberdrola Renewables makes a final decision on the project, which could begin construction as early as late 2011,” the company said.

Wednesday, February 02, 2011

Perdue: 'Senate cuts go too far'

For weeks the new Republican majority and Gov. Bev Perdue have been making nice about the upcoming job of trimming the 2011-12 budget by billions of dollars to cover a projected $3.7 billion shortfall. Yesterday the Senate announced it was moving toward giving Perdue authority to wrest $400 million in savings in the current fiscal year to get a head start on next year's savings.  Senate leaders really wanted $800 million in savings, but Perdue wanted to wait to see how the $400 million cut would affect this year's budget.

Meanwhile, the Senate Appropriations Committee this afternoon announced a plan for more cuts -- including taking $67 million billion from the money coming to the Golden LEAF Foundation (it still has $555 million) from a national tobacco settlement, $11.7 million from the Health and Wellness Trust Fund, $3 million from the Job Development Investment Grants, various unspent funds such as from  IT funds ($13.6 million) and the Parks and Recreation Trust Fund (8.5 million). Sponsors including Sen. Richard Stevens, R-Wake, said the cuts would get the projected starting deficit down nearly a billion to about $2.7 billion.

Perdue said Wednesday afternoon the cuts would make it hard to recruit jobs and expand businesses. In a statement this afternoon, she said:

“The proposed cuts to North Carolina’s jobs and economic development funds will damage our ability to recruit new jobs and to expand existing businesses in the state. Other Southern states, notably Virginia, have called for an increase in similar funds so they can take our jobs away.

 "I am truly surprised that Senate leadership is considering taking North Carolina’s jobs money as a way to balance the budget. It won’t work – and what’s more, our people won’t work if we can’t bring new companies and new industries to our state. We have many hundreds of new jobs in the pipeline right now, and they depend on that money. If we don’t win those projects, those jobs go somewhere else. It’s that simple.”

The legislature is off to a very fast start, and it is moving to make whatever cuts it can now to get a handle on the worse budget shortfall in memory.  No one disputes that covering the shortfall is going to cause some pain. The governor's reaction today to the advance cuts is just the first of a number of reactions to various cuts from those directly affected as lawmakers and the governor try to find the right formula to cut the budget. It's worth noting that Perdue did not say she was against all the cuts -- just the ones she thinks will affect the state's ability to recruit jobs.  Many Republicans, on the other hand, are doubtful that spending tax money on economic development is all that effective in recruiting jobs.

4:20 p.m. update  from Senate President Pro Tem Phil Berger's office:

“We are actively tackling next year’s budget shortfall through savings and reductions in the current fiscal year,” said Senate President Pro Tempore Phil Berger (R-Rockingham.) “These cuts represent immediate steps to help close the gap between spending and revenue.  While everything remains on the table, it is our belief these measures will minimize negative impacts to our classroom teachers and state employees.”

Tuesday, February 01, 2011

Senate moving fast to give Gov more budget power

Sen. Phil Berger, president pro tem of the state Senate, has his colleagues in the Republican majority concentrating on state budget issues, beginning with a bill giving Gov. Bev Perdue more power to manage a budget expected to be about $3.7 billion short for the new fiscal year.

The Senate Appropriations Committee is in session this morning working on the Balanced Budget Act granting Perdue one-time authority to cut spending the remainder of this year. The bill is sponsored by Sens. Pete Brunstetter (R-Forsyth), Neal Hunt (R-Wake), and Richard Stevens (R-Wake).  The aim is to cut spending between now and June 30 by another $400 million. Perdue had already cut the budget significantly, but she evidently had gone as far as her budget powers allowed.

Berger's office released a statement quoting Berger as saying, “We are pleased that the governor requested additional powers to join us in our efforts to rein-in out of control spending and get our state’s fiscal house in order. We are giving Gov. Perdue these emergency powers in good faith and trust that she will continue to work with us in a bipartisan manner to help solve our state’s budget problems.”

Berger's official also announced a joint Finance Committee meeting Wednesday to "review the state’s existing tax structure, revenue forecast and economic climate."

Mecklenburg Sen. Bob Rucho is co-chairman of that committee, and in the release he said, the early joint session will help members "take on the challenge of reforming North Carolina’s tax system.  This will help stimulate the economy, grow small business and create new jobs so that we can put the people of North Carolina back to work.”

The Senate  and House are wise to put the focus quickly on the budget, the state's economy and doing what it can to attract jobs, and so far Speaker Thom Tillis, Berger and Perdue have cooperated on how to approach the shortfall -- ad encouraging sign after the first couple of days when other issues have gotten in the way of job one.  I expect the legislature and the governor will have plenty of opportunities to fall out later on -- possibly over keeping temporary taxes that would help avoid teacher layoffs. We'll see.