If these records are missing, judge says he’ll drop case against Moral Monday protesters

Judge Carl Fox called attorneys for two Moral Monday protesters and the prosecutor on their cases back to court on Friday with more questions.

Earlier in the week, Fox rejected arguments by two protesters who contended rules governing where people can go, what they can do and how much noise they can make inside the North Carolina Legislative Building were illegal.

But he had not entered his official order.

On Friday, Fox told attorneys for Carol Anderson and Dale Herman, the Durham residents who challenged the constitutionality of the rules, that he still agreed that General Assembly members had the authority to delegate rulemaking to a Legislative Services Commission. But Fox said he had trouble with the part of the law that allows rules to be made with just the House speaker and Senate leader present, not a quorum of the 10-member commission.

The cases of Anderson and Herman have brought an unusual request from lawmakers and their representatives.

Late last year, Paul Coble, head of the legislative services offices, sought to intervene in the criminal cases and sit alongside prosecutors. They contended the judge’s decision could have an impact on the day-to-day operations of the General Assembly.

Fox rejected their request, saying the prosecutors could represent their interests.

Fox made clear that he was not interested in blocking the commission from handling day-to-day business if they needed to make decisions with less than a quorum that were not tied to criminal penalties. A quorum is a majority – in this case, six members.

“What I’m saying is if you have 10 members of a commission, you can’t have two deciding ... anything that involves criminal sanctions should require that there be a quorum,” Fox said.

Fox told Assistant District Attorney Nishma Patel that he wanted to see the legislative record for the building rules at the crux of the case. If the record was missing or not provided, Fox said he would presume that a quorum was not present and dismiss the case against the protesters.

Coble was at the hearing on Friday in which Fox outlined details of his order.

After the hearing, Coble said he did not know whether the full commission, a quorum or smaller group approved the 2014 amendment to the rules, but he planned to research the record.

The cases could have implications for other protesters, including the Rev. William J. Barber II, the former NAACP leader and architect of the Moral Monday protest movement that led to more than 1,000 arrests.

This story was originally published March 2, 2018 at 6:31 PM with the headline "If these records are missing, judge says he’ll drop case against Moral Monday protesters."