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Tuesday, May 10, 2016

HB2 litigation: It's not so much the Bathroom Security Act as the Republican Lawyers' Enrichment Plan.

It was wall-to-wall BREAKING NEWS for TV stations and websites yesterday, as two branches of North Carolina state government and the federal government started calling each other names and flinging writs at each other.

It all started last Wednesday, when the Department of Justice wrote Governor Pat McCrory to tell him HB2- the bathroom panic bill that was really a lawsuit immunity, discrimination free pass and low wages guarantee to the business lobby- violated US law. The DOJ demanded a response by Monday whether NC would get back on the constitutional side of life or keep on legislating inequality against its citizens.

McCrory, Senate President Phil Berger and House Speaker Tim Moore huffed and puffed about how they couldn’t- and wouldn’t respond by Monday. They said they felt bullied. It’s just not the way we work, they said, doing anything in five days about a law we passed twelve hours.

McCrory went on Fox News Sunday to lie about his intentions:

What I've asked for, I asked for Friday, was an extension. They gave the ninth largest state in the United States, the civil rights division of the Justice Department, three working days to respond to a pretty complex letter and to a pretty big threat. Well, we don't think three working days is enough to respond to such a threat from a -

Then he went on,

Well, first of all, I don't have the authority to change the law as governor of the United States. That's passed by the North - or as governor of North Carolina. That is made by the North Carolina legislature. So they've already made one unrealistic expectation. And, second, they've also sent a letter to our universities and our university by state law has to go to the board of governors, which cannot meet until Tuesday. So this unrealistic deadline by the federal government is quite amazing to the ninth largest state, but I'll make a decision within the next 24 hours on how to respond to them. I - I believe I have until 5:00 tomorrow.

WALLACE:  And how are you going to decide?

MCCRORY: I'm discussing all of our legal options, all of our political options...

By 10 a.m the next day, McCrory had a complaint against the federal government filed, and five lawyers hired to prosecute it. By noon, Berger and Moore filed theirs.

Who pays for these suits springing up, overnight, like mushrooms?


Since taking over the legislature in 2011 and the governorship in 2013, NC Republicans have run up a tab for legal fees seventeen times greater than in the preceding decade: $7 million by the General Assembly through last October.

The General Assembly spent $3 million in 2015 alone as their more radical enactments- voter suppression, elimination of teacher tenure, gerrymandering, school voucher giveaways, rigging the election of judges, and squashing marriage equality, to name a few- heated up in federal and state court. The money came out of a $4 million legal fund the General Assembly budgeted for itself to over the 2015-17 biennium. Senate President Berger has called the legislature's program for enrichment of Republican lawyers- the lion’s share of which goes out of state- a "wave we've not seen crest."

McCrory’s three predecessors as governor spent $56,000 on outside legal fees. In three years, the governor has spent $1.3 million- and half of that in a dispute with the Republicans in the legislature over appointments to a Coal Ash Commission to make sure Duke Energy didn't get smacked very hard for its massive, statewide water pollution program.

So who’re the players in the miraculous overnight birth of two lawsuits from three powerful Republicans who ostensibly agree with each other?

Governor McCrory suited up a legal team of five for his case.

Lead counsel is Karl “Butch” Bowers of Columbia, S.C. McCrory last called on the out-of-state lawyer and GOP fixit specialist in 2013, when Bowers defended North Carolina’s law to solve another nonexistent problem- voter fraud- was addressed by the nation's most suppressive statue, in a court challenge.

Indy Week profiled Bowers’ revolving door between defending Republicans in court and in government:

Butch Bowers Jr., the attorney representing Gov. Pat McCrory in a lawsuit filed by the U.S. Department of Justice, has donated to major Republican candidates and represented some of South Carolina's top elected officials. And the law firm where until recently, Bowers worked has ties to McCrory and Duke Energy, the governor's former employer.

The U.S. Department of Justice is suing the state of North Carolina, charging the elections law discriminates against minorities. Attorney General Roy Cooper, a Democrat and likely 2016 gubernatorial candidate, is charged with defending the state in legal actions. But his public disfavor for the law—Cooper has called it "regressive elections legislation" that would make it more difficult for working people to vote—prompted Gov. McCrory to hire his own counsel. Karl "Butch" Bowers, a South Carolina public policy attorney with strong GOP ties, is being paid with state funds at a rate of $360 an hour.

Ryan Tronovitch, deputy communications director for the governor's office, said Bowers' hourly fee is a discounted rate. Bowers will be paid using "state funds," Tronovitch said, without clarification.

Tronovitch would not say whether there is a cap on Bowers' pay, citing that as "privileged information."

In 2012, Bowers' firm, Hall and Bowers of Columbia, S.C., merged with the nationally recognized legal practice Womble Carlyle, which has offices in eight states, including South Carolina and North Carolina. (Bowers has since left Womble Carlyle and works independently.)

Womble Carlyle is among North Carolina's largest law firms and has some of the state's most powerful lobbyists.

Duke Energy, McCrory's former employer, is a major client of Womble Carlyle's North Carolina practice, which defended the utility when it was under investigation for the firing of CEO Bill Johnson after the Progress-Duke merger.

The firm contributed $54,000 to McCrory's gubernatorial campaign and $30,000 to his successful 2007–2008 mayoral bid in Charlotte, according to Influence Explorer.

"We're very fortunate to get Butch Bowers for this case," said Bob Stephens, the governor's chief legal counsel, at a media event on Oct. 1. "Butch Bowers has been through this battle ... he's been through the wars. He's very bright, very talented."

Bowers was a member of the Justice Department serving as Special Counsel on Voting Matters under the George W. Bush administration, according to his page on the Republican National Lawyers' Association website.

"(Bowers) knows the lawyers that signed this complaint that was filed ... He worked with them," Stephens said. "He knows how they think, and I think he's going to be a terrific asset to us."

Bowers is best known for representing South Carolina Gov. Nikki Haley in a state ethics investigation in 2012. Bowers defended Haley against allegations that she illegally lobbied on behalf of her former employer, Lexington Medical Center, and on behalf of an engineering firm with significant legislative interests. He argued before the South Carolina House Ethics Committee that state law permits legislators to work for organizations that employ lobbyists, and he claimed that other House Representatives also did so.

Though Haley was cleared of the charges of illegal lobbying, the South Carolina Ethics Board fined her $3,500 in July for failing to report the addresses of eight campaign donors. Haley is expected to run for re-election in 2014.

Bowers also represented South Carolina Lt. Gov. Ken Ard, who pleaded guilty on charges of ethics violations and paid a $48,000 fine for using campaign funds for personal business. Ard resigned in March 2012. He was sentenced to probation and community service.

According to, Bowers has given thousands of dollars to South Carolina Republicans, including former U.S. Sen. Jim DeMint and U.S. Sen. Tim Scott, both tea party mainstays. Bowers gave $1,000 to U.S. Rep. Mark Sanford's campaign in February. During his governorship, Sanford appointed Bowers to serve as a member of the State Election Commission from 2003 until 2007.

Despite Bower's political activity, Stephens claimed there is no conflict of interest in his representing the governor. "We did a complete check of all of (Bowers') clients for conflicts and other issues," Stephens said. "I'm very comfortable with that part of it."

Stephens, the only lawyer of the eight defending HB2 on the public payroll, is most likely “supervising” for his boss. The local bag carriers in the case are William W. Stewart Jr, Frank J. Gordon and B. Tyler Books of Raleigh’s Millberg Gordon Stewart. They bill themselves as transportation and civil litigation attorneys, and their attorney profiles and website information are scrubbed of any partisan affiliations.

For their lawsuit, Berger and Moore have has chosen a new Washington, D.C. K Street firm lobby/law firm, Duncan Schaerr LLP.

Kyle Duncan was solicitor general for Louisiana’s Governor Bobby Jindal (2008-12) and general counsel to the stridently antigay Becket Fund (2012-14). His DC law firm’s website says,

Kyle represents his clients not only in court but also in the court of public opinion. He has been interviewed and quoted by national news organizations, such as NPR, CNN, Fox News, the Wall Street Journal, the Washington Post, and the New York Times.

Duncan’s partner, Gene Schaerr, portrays himself as the master of all the laws. After clerking for Chief Justice Warren Burger, Justice Antonin Scalia, and former federal appeals judge Kenneth Starr (yes, that one), he moved through several big-name firms before setting up his current shop. There, his profile says,

Gene Schaerr specializes in handling—and usually winning—civil appeals, writ proceedings and similar matters, both in appellate courts and in the law-focused proceedings at the trial-court or agency level that often determine success or failure on appeal…

Substantively, Mr. Schaerr's experience includes not only virtually every area of federal law, defamation, higher education law, immigration, insurance coverage, labor and employment, patent and trademark, privacy, product liability and warranty, statutory interpretation and tax.He has represented clients in virtually every sector, including automotive, communications, energy, financial services, health care, higher education, insurance, maritime, pharmaceuticals, technology and state and local government. He also teaches courses in Supreme Court litigation, religious freedom litigation and advanced litigation skills as an adjunct professor of law at the Brigham Young University law school.

Local bag-carrier for the Berger-Moore team is Charlotte lawyer Robert D. Potter, Jr. , a former deputy US attorney whose interests include a law review article on the regulation of telephone pornography, and whose listed lead field of practice is aviation law. His father, the late North Carolina federal judge, Robert “Maximum Bob” Potter, was appointed to the bench by President Reagan and spent twenty-eight years indulging his penchant for long criminal sentences.

Potter, Jr. was previously bag carrier for House Speaker- now US Senator- Thom Tillis and Senate President Phil Berger in their costly, losing attempt to block marriage equality in North Carolina two years ago. Tillis and Berger parachuted in a California lawyer who chairs the board of the antigay National Organization for Marriage, John C. Eastman, who called for the states to simply ignore the Supreme Court’s marriage equality ruling. Potter has a long list of articles in Catholic publications denouncing what he calls “gay ‘marriage’”.

All the Potter-Eastman juggernaut accomplished was the lining of their pockets. In February 2015, The Charlotte Observer reported,
Through January, Potter billed the state just over $19,000. The Claremont Institute invoiced $78,200. Officials released the bills after a public records request by the Observer.
Potter offered additional pro bono work. Eastman and Claremont gave a “public interest” discount. The expenses are ongoing. 
That was for three months’ work on the uniquely pointless project of filing an an appeal asking the Fourth Circuit to overrule itself, and came out of a $300,000 fund Berger and Tillis created by stripping funds from the Attorney General’s budget. It’s especially good work for local counsel like Potter, who essentially provide their admission to a court as a ride for out of state lawyers who aren’t admitted and who are going to do all the substantive work.

Potter makes no mention of his work for the General Assembly leadership on his firm website’s list of “representative clients.”

You gotta give the Republicans credit. Their power grab from cities; their creation of an antidiscrimination law that mostly defines people out of its coverage, and refers the rest to a state agency with no funds that is set to be eliminated this spring; their suppression of wages to make it harder for workers to live in the cities that generate most of the state’s income- all that is going unchallenged and virtually uncommented upon.

It’s all about the bathrooms. Or, as the blogger Slowly Boiled Frog puts it:

All this because the conservative Christians who run the state could not tolerate the fact that Charlotte, with about 8% of the state's population, decided to protect probably fewer than 1,000 citizens from discrimination.

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