The UNC system has hired three high-profile Washington, D.C., attorneys to represent it in House Bill 2 lawsuits, and is asking N.C. Attorney General Roy Cooper to pay the outside counsels’ legal fees.
On Friday, the UNC Board of Governors voted to send Cooper a letter stating “the University will incur anticipated and potentially significant legal costs as a result of your decision not to provide legal representation to the university in these matters.”
The letter asks the attorney general’s office to “begin setting aside funds sufficient to pay the legal fees and expenses” the system will incur.
Cooper has declined to defend state officials, including Gov. Pat McCrory, UNC President Margaret Spellings and the Board of Governors, in HB2 lawsuits filed by the U.S. Department of Justice and the ACLU. He has said the law is discriminatory.
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“This is a serious matter,” board Chairman Lou Bissette said. “It will be extremely expensive. If we find a way out of this lawsuit, it will be cheaper. If it continues, the sky would be the limit.”
Cooper’s office replied to the board in an email late Friday afternoon.
“The Attorney General would encourage the UNC Board of Governors to help fight HB2 by urging the governor and legislature to repeal the law which would quickly solve the problem,” according to a statement sent by Samantha Cole, an assistant to the attorney general.
Friday’s motion began with board member Thom Goolsby’s proposing the attorney general’s office pick up 150 percent of the cost of legal fees, which would have included punitive damages.
Board member W. Marty Kotis III agreed, saying Cooper’s refusal to defend the state is a “complete dereliction of duty and comes at the expense of the university and the students.”
However, Goolsby’s motion was amended and the punitive damages removed.
“I don’t think one government agency can ask for punitive damages from another because it doesn’t like how it’s performing its job,” board member Laura Wiley countered. “It’s overreaching.”
The approved motion gives Cooper’s office 60 days to respond to the board. After that time, the board can ask the General Assembly to intervene and use its budgetary power to collect the funds.
The legal team
UNC has retained former U.S. Solicitor General Seth Waxman, a partner in the WilmerHale firm, on legal strategy. He served as solicitor general in President Clinton’s administration from 1997 to 2001.
Waxman has presented 75 oral arguments before the U.S. Supreme Court, including a 2014 case in which he successfully defended a mentally disabled client, Freddie Lee Hall, on death row. Hall was sentenced to death after scoring a 71 on his IQ test since a Florida rule states that individuals who score over 70 can be given the death penalty. The Supreme Court ruled that a strict threshold of IQ is alone insufficient to sentence a defendant to death.
The lead attorneys are Noel J. Francisco and Glen D. Nager, both partners at Jones Day, an international law firm based in Cleveland.
Attorneys from the Division of Legal Affairs at the UNC system office will serve as local counsel.
Francisco is chair of the firm’s regulation practice, where he represents clients in civil and criminal litigation involving federal and state governments, including lawsuits against governments, enforcement actions by governments, and congressional investigations.
According to his profile on the Jones Day website, one of Francisco’s notable cases was representing the R.J. Reynolds Tobacco Co. in a successful First Amendment challenge to a federal regulation requiring cigarette manufacturers to display graphic warnings on cigarette packages.
Nager has argued 13 cases before the U.S. Supreme Court and presented appeals in other courts in several areas, including civil rights and employment. He also defends employers in class-action discrimination lawsuits. His clients have included General Electric, IBM and CBS.
‘Caught in the middle’
UNC President Margaret Spellings said the university is “caught in the middle” of contradictory federal and state laws.
“Our dilemma is that things got more confounding,” Spellings said. “Initially it was bathrooms, then it became locker rooms, showers and dorms. There’s a lack of clarity.”
At a public comment session held after the meeting, UNC geography professor Altha Cravey told the board that hiring the Washington, D.C., attorneys was unnecessary. “It’s a waste of taxpayer money,” she said. “All you have to do is follow the law.”