CARCANO et al v. MCCRORY, et al
Filing
295
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 07/22/2019, that the Supplemental Joint Motion for Entry of Consent Decree (Doc. 289 ) is GRANTED. The proposed consent decree will be entered contemporaneously with this order. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOAQUÍN
CARCAÑO;
PAYTON
GREY
MCGARRY; HUNTER SCHAFER; MADELINE
GOSS;
ANGELA
GILMORE;
QUINTON
HARPER;
and
AMERICAN
CIVIL
LIBERTIES UNION OF NORTH CAROLINA,
Plaintiffs,
v.
ROY A. COOPER, III, in his official
capacity as Governor of North
Carolina;
UNIVERSITY
OF
NORTH
CAROLINA; DR. WILLIAM ROPER, in his
official capacity as President of
the University of North Carolina;
JOSHUA STEIN, in his official
capacity as Attorney General of
North Carolina; MACHELLE SANDERS,
in
her
official
capacity
as
Secretary of the North Carolina
Department of Administration; MANDY
K. COHEN, in her official capacity
as Secretary of the North Carolina
Department of Health and Human
Services; and JAMES H. TROGDON,
III, in his official capacity as
Secretary of the North Carolina
Department of Transportation,
Defendants,
and
PHIL BERGER, in his official
capacity as President Pro Tempore
of the North Carolina Senate; and
TIM
MOORE,
in
his
official
capacity as Speaker of the North
Carolina
House
of
Representatives,
Intervenor-Defendants.
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1:16cv236
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
Before
the
court
is
the
supplemental
joint
motion
of
Plaintiffs Joaquín Carcaño, Payton Grey McGarry, Hunter Schafer,
Madeline Goss, Angela Gilmore, Quinton Harper, and the American
Civil Liberties Union of North Carolina (together, “Plaintiffs”),
along with Defendants Governor Roy Cooper, Attorney General Joshua
Stein, and Secretaries Machelle Sanders, Mandy Cohen, and James
Trogdon (together, “Executive Branch Defendants”) for entry of a
proposed consent decree to resolve this lawsuit as between them.
(Doc. 289.)
Intervenor-Defendants Phil Berger, President Pro
Tempore of the North Carolina Senate, and Tim Moore, Speaker of
the North Carolina House, proceeding in their official capacities
as heads of the North Carolina General Assembly’s two chambers,
oppose the motion.1
(Doc. 292.)
The remaining Defendants, the
University of North Carolina (“UNC”) and its President, Dr. William
Roper2 (together, “UNC Defendants”), take no position.
at 3.)
(Doc. 288
For the reasons that follow, the motion will be granted.
1
The legislators have been permitted to intervene to defend their
enactments pursuant to N.C. Gen. Stat. § 1-72.2.
2
Dr. William Roper has been substituted for former President Margaret
Spellings as a Defendant pursuant to Federal Rule of Civil Procedure
25(d). (Doc. 281.)
2
I.
BACKGROUND
This case has an extensive history that is more completely
recounted in the court’s earlier decisions.
See, e.g., (Doc. 248
at
challenge
4–14).
The
lawsuit
originated
as
a
to
North
Carolina’s Public Facilities Privacy & Security Act, 2016 N.C.
Sess. Laws 3, known as House Bill 2 (“HB2”), which required, among
other things, that public agencies ensure that multiple occupancy
restrooms, showers, and other similar facilities be “designated
for and only used by” persons based on the “biological sex” listed
on their birth certificate.
The court entered a preliminary
injunction, granting Plaintiffs’ request in part and denying it in
part, based on controlling precedent at the time.
(Doc. 127.)
During the pendency of the case and following substantial
economic and other pressures brought against the State as a result
of HB2, the North Carolina legislature enacted — and the newlyelected Governor, Defendant Cooper, signed — 2017 N.C. Sess. Laws
4, known as House Bill 142 (“HB142”).
Section 1 of HB142 repealed
HB2, Section 2 bars state agencies from “regulati[ng] . . . access
to multiple occupancy restrooms, showers, or changing facilities,
except in accordance with an act of the General Assembly,” and
Section
3
prohibits
local
governments
from
“enact[ing]
or
amend[ing] an ordinance regulating private employment practices or
regulating
public
accommodations.”
Section
Section 3 “expires on December 1, 2020.”
3
4
provides
that
In the wake of the passage of HB142, the court dissolved its
preliminary injunction (Doc. 205), and Plaintiffs filed a Fourth
Amended
Complaint
predecessor
HB2
(Doc.
210)
violated
claiming
that
rights
under
their
HB142
the
and
its
Fourteenth
Amendment, Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq. (“Title IX”), and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).3
The Fourth
Amended Complaint contains over 400 detailed paragraphs recounting
the procedural history of the litigation as well as the myriad
actions that led to passage of HB142 and the concomitant repeal of
HB2.
On October 18, 2017, Plaintiffs and the Executive Branch
Defendants moved jointly for entry of a consent decree.
216.)
(Doc.
A few days later, the UNC Defendants filed a motion to
dismiss the lawsuit, as did Intervenor-Defendants.
30, 2018
dismissed
Memorandum
a
number
Opinion and
of
In a September
Order (Doc. 248), the court
Plaintiffs’
claims,
leaving
only
the
following: (1) Plaintiffs’ Title VII and Title IX nominal-damages
claims against UNC for the period in which HB2 was in force, as to
3
Plaintiffs pleaded two sets of claims involving HB2: (1) nominal damages
claims against UNC for alleged Title VII and IX violations committed
during the period when HB2 was in force, and (2) constitutional
challenges to HB2 pleaded “solely in the event that the Court finds one
or more of HB142’s provisions unlawful and not severable from HB142’s
other provisions” (Doc. 233 at 42), in which case Plaintiffs allege that
HB142 should be struck down in its entirety, causing HB2 to spring back
into effect.
4
which the court reserved ruling pending supplemental briefing; and
(2) Plaintiffs’ equal protection challenge to HB142 § 3, brought
against the Executive Branch Defendants, as to which the court
found that Plaintiffs had met their pleading burden.4
The court
also directed the parties to meet and confer as to the effect of
its dismissal ruling on the proposed consent decree.
(Id. at 63–
64.)
As
directed,
the
parties
filed
supplemental
briefing
regarding the motions to dismiss Plaintiffs’ Title VII and Title
IX claims.
On December 21, 2018, Plaintiffs and the Executive
Branch Defendants filed a second joint motion for entry of consent
decree (Doc. 264), again opposed by Intervenor-Defendants.
April
23,
2019,
Intervenor-Defendants
filed
what
the
On
court
construed as an unopposed motion to stay the Title VII and Title
IX proceedings pending the Supreme Court’s review of Bostock v.
Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir.
2018), cert. granted, 139 S. Ct. 1599 (2019) (mem.) (whether Title
VII prohibits discrimination against an employee on the basis of
sexual orientation); Zarda v. Altitude Express, Inc., 883 F.3d 100
(2d Cir. 2018), cert. granted, 139 S. Ct. 1599 (2019) (mem.)
(same); and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884
F.3d 560 (6th Cir. 2018), cert. granted, 139 S. Ct. 1599 (2019)
4
Plaintiffs’ contingent challenges to HB2, as referenced in footnote 3,
also remain.
5
(mem.) (whether Title VII prohibits discrimination against an
employee on the basis of transgender status).
(Doc. 282.)
The court held a hearing on the pending motions on May 17,
2019.
During the hearing, the court heard argument by Plaintiffs
and the Executive Branch Defendants as to the proposed terms of
the consent decree, as well as the objections of IntervenorDefendants.
The court also expressed its concerns as to certain
provisions of the proposed consent decree.
(Doc. 287.)
A few
days later, the court stayed all litigation as it pertains to
Plaintiffs’ remaining Title VII and Title IX claims and ordered
the parties to meet and confer in an attempt to resolve the
concerns raised at the hearing as to the terms of the proposed
consent decree.
On
May
(Doc. 286.)
31,
2019,
Plaintiffs
and
the
Executive
Branch
Defendants filed the present supplemental joint motion for entry
of consent decree (Doc. 289), along with briefing (Docs. 290, 291)
and a revised proposed decree (Doc. 289-1). The parties also filed
a status report, as directed by the court, setting out the parties’
positions.
(Doc.
288.)
Intervenor-Defendants
filed
a
supplemental brief setting out their continued opposition to the
motion.
(Doc. 292.)
hearing
regarding
additional concerns.
On July 17, 2019, the court held a telephone
the
revised
proposed
decree,
expressing
Two days later, Plaintiffs filed a final
version of the proposed consent decree.
6
(Doc. 294-1.)
The motion
is now ready for decision.
II.
ANALYSIS
Plaintiffs and the Executive Branch Defendants move for entry
of a consent decree that would resolve all remaining claims against
the Executive Branch Defendants.5
(Doc. 289.)
The proposed
consent decree has four decretal paragraphs:
(1)
With respect to public facilities that are subject
to
Executive
Branch
Defendants’
control
or
[6]
supervision, the Consent Parties
agree that
nothing in Section 2 of H.B. 142 can be construed
by the Executive Branch Defendants to prevent
transgender people from lawfully using public
facilities
in
accordance
with
their
gender
identity. The Executive Branch Defendants as used
in this paragraph shall include their successors,
officers, and employees.
This Order does not
preclude any of the Parties from challenging or
acting in accordance with future legislation.
(2)
The Executive Branch Defendants, in their official
capacities, and all successors, officers, and
employees are hereby permanently enjoined from
applying Section 2 of H.B. 142 to bar, prohibit,
block, deter, or impede any transgender individuals
from using public facilities under any Executive
Branch Defendant’s control or supervision, in
accordance with the transgender individual’s gender
identity.
Under the authority granted by the
General Statutes existing as of December 21, 2018,
and notwithstanding N.C.G.S. § 114-11.6,[7] the
Executive Branch Defendants are enjoined from
prosecuting an individual under Section 2 of H.B.
5
The contingent claims against HB2 would be dismissed as well, leaving
only Plaintiffs’ Title VII and IX claims against the UNC Defendants,
which have been stayed. (Doc. 286.)
6
The “Consent Parties” are defined as Plaintiffs and the Executive
Branch Defendants. (Doc. 294-1 at 3.)
7
Section 114-11.6 creates a “Special Prosecution Division” within the
North Carolina Attorney General’s office.
7
142 for using public facilities under the control
or supervision of the Executive Branch, when such
otherwise lawful use conforms with the individual’s
gender identity.
(3)
The Consent Parties shall each bear their own fees,
expenses, and costs with respect to all claims
raised by Plaintiffs against the Executive Branch
Defendants.
(4)
All remaining claims filed by Plaintiffs against
the Executive Branch Defendants in this action are
hereby dismissed with prejudice.
(Doc. 294-1.)
“A consent decree is a negotiated agreement that is entered
as a judgment of the court.”
Bragg v. Robertson, 83 F. Supp. 2d
713, 717 (S.D.W. Va. 2000).
Thus, while it is consensual, it
remains a judicial document.
Id. (“Approval of a consent decree
is a judicial act, committed to the informed discretion of the
trial court.”); United States v. Swift & Co., 286 U.S. 106, 114–
15 (1932).
A federal court only has the power to enter a consent
decree that “spring[s] from and serve[s] to resolve a dispute
within the court’s subject-matter jurisdiction.”
Local No. 93,
Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501,
525 (1986); see also Pac. R.R. v. Ketchum, 101 U.S. 289, 297 (1897)
(requiring that a consent decree “comes within the general scope
of the case made by the pleadings”).
Before the court agrees to
enter a consent decree, it must ensure that the proposed decree
“is fair, adequate, and reasonable” as well as “not illegal, a
product of collusion, or against the public interest.”
8
United
States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999)
(quoting United States v. Colorado, 937 F.2d 505, 509 (10th Cir.
1991)).
While a federal district court “should not blindly accept
the terms of a proposed settlement,” it “should be guided by the
general principle that settlements are encouraged.”
Id.
Intervenor-Defendants argue that the terms of the proposed
decree exceed the court’s subject-matter jurisdiction and raise
“federalism and separation-of-powers concerns.”
2.)
(Doc. 292 at 1–
These, and Intervenor-Defendants’ related contentions, are
addressed in turn.
A.
Subject-Matter Jurisdiction
Because the court must always assure itself of its subjectmatter
jurisdiction,
it
must
determine
whether
consent decree falls within its power to act.
the
proposed
In its September
30, 2018 Memorandum Opinion and Order, the court determined that
Plaintiffs lacked standing as to their claims that HB142 created
uncertainty about which restrooms they were permitted to use, and
the court dismissed those claims for that reason.8
21–31.)
(Doc. 248 at
However, the court determined that Plaintiffs did have
standing as to their claims against the Executive Branch Defendants
challenging HB142 §§ 2 and 3 on the grounds that the preemption
provisions of these sections — which allegedly eliminate the
8
Plaintiffs failed
redressability.
to
show
injury
9
in
fact,
traceability,
and
ability
of
transgender
discrimination
policy-making
protections
process
Protection Clause.
argue
that
individuals
the
—
in
the
to
state
constitute
a
dismissal
agency
violation
(Doc. 248 at 31–39.)
court’s
advocate
of
for
and
of
anti-
municipal
the
Equal
Intervenor-Defendants
Plaintiffs’
injury-by-
uncertainty claims for lack of standing deprives the court of
jurisdiction to enter a consent decree that would alleviate alleged
uncertainty
about
bathroom
access,
leaving
the
court
with
authority only to approve consent decree provisions that directly
remediate Plaintiffs’ alleged barrier-to-access injury.
The Supreme Court has cautioned that “a federal court is more
than a recorder of contracts
from whom parties can purchase
injunctions; it is an organ of government constituted to make
judicial decisions.”
Local No. 93, 478 U.S. at 525 (internal
quotation marks omitted).
“Accordingly, a consent decree must
spring from and serve to resolve a dispute within the court's
subject-matter jurisdiction.”
Id.
The provisions of a consent
decree must fall within “the general scope of the case made by the
pleadings” and “further the objectives of the law upon which the
complaint was based.”
Id. (quoting Ketchum, 101 U.S. at 297).
“[I]n addition to the law which forms the basis of the claim, the
parties’ consent animates the legal force of a consent decree.”
Id.
Here, the court is not persuaded that the relief requested by
10
Plaintiffs and the Executive Branch Defendants falls outside its
jurisdiction to approve.
“[A] federal court is not necessarily
barred from entering a consent decree merely because the decree
provides broader relief than the court could have awarded after a
trial.”
Local No. 93, 478 U.S. at 525.
Moreover, courts have
found that even claims “not expressly set out in the pleadings”
can “fall within the[ pleadings’] general scope,” as long as they
are sufficiently related to the pleaded claims.
United States v.
Charles George Trucking, Inc., 34 F.3d 1081, 1090 (1st Cir. 1994).
Intervenor-Defendants point out that the first two paragraphs
of
the
proposed
consent
decree
directly
address
potential
application of HB142 § 2 as a basis for blocking transgender
individuals’
use
of
public
facilities
matching
their
gender
identity, or prosecuting them for such use, as opposed to the
inability
to
meaningfully
advocate
for
non-discrimination
protections at the local government and state agency levels.
Intervenor-Defendants
therefore
trace
the
lineage
of
these
provisions to Plaintiffs’ failed attempt to establish an injury in
fact based on alleged uncertainty about which restrooms they were
able to use.
As noted above, however, it is sufficient if the provisions
of a consent decree relate to the pleaded claims; they need not be
11
tailored to remedy only the pleaded injury in fact.9
Here, the
court found that Plaintiffs established standing to challenge
HB142 § 2 on equal protection grounds.
Plaintiffs contended that
the provision created “‘one rule for transgender individuals and
another
for
non-transgender
individuals’
because
the
UNC
Defendants are willing to regulate access to restrooms in one sense
[i.e., by labeling restrooms as for ‘men’ or ‘women’], but refuse
to regulate access to restrooms in the sense of clarifying which
restrooms transgender individuals are permitted to use.”
248 at 43 (quoting Doc. 233 at 40).)
(Doc.
In dismissing this claim
under Rule 12(b)(6), the court found that Plaintiffs “failed to
plausibly plead that the preemption of regulation of access to
multiple occupancy restrooms, showers, or changing facilities in
Section
2
impacts
them
disproportionately”
in
part
because
“[n]othing in the language of Section 2 can be construed to prevent
9
Intervenor-Defendants have not offered a single case in which a court
found that it lacked subject-matter jurisdiction to enter a proposed
consent decree because its terms were not precisely tailored to reach
the properly-alleged injury (and only the properly-alleged injury).
Although Intervenor-Defendants quote from League of United Latin Am.
Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) (en
banc) (“LULAC”) to the effect that “any federal decree must be a tailored
remedial response to illegality,” see id. at 847, the LULAC court did
not make its statement in a context analogous to this one. The plaintiffs
in LULAC no longer had any claims left after the legal issues on appeal
were resolved, leading the court to the obvious conclusion that any sort
of “response to illegality” was practically impossible in such a case.
Id. (“We could not . . . remand [for entry of a consent decree] without
correcting the district court’s misapprehensions of law . . . and when
[that task] is done, there is no case.”). In the instant case, Plaintiffs
still have live claims that Defendants unconstitutionally discriminated
against them.
12
transgender individuals from using the restrooms that align with
their gender identity.”
observation,
arising
(Id. at 47, 49.)
out
of
a
challenge
It is this precise
to
HB142
§
2
which
Plaintiffs had standing to bring, that Plaintiffs and the Executive
Branch Defendants now seek to memorialize in the consent decree.
Intervenor-Defendants’
claims
ultimately
response to this
dismissed
for
failure
argument
to
state
is that
a
claim
definitionally cannot fall within “the general scope of the case
made by the pleadings,” Local No. 93, 478 U.S. at 525 (quoting
Ketchum, 101 U.S. at 297).
Under this reasoning, no proposed
consent decree in this case could address HB142 § 2 at all, given
the
court’s
Rule
12(b)(6)
dismissal
protection challenge to that provision.
of
Plaintiffs’
equal
But Intervenor-Defendants
cite no case applying such a rule, and courts do not consider “the
merits of the settled claims” in the consent decree jurisdiction
analysis.
Bragg, 248 F.3d at 299; see also id. at 299–300 (“As
long as [the plaintiff]’s claims were not clearly frivolous from
the face of the complaint, jurisdiction was proper, and a challenge
to the consent decree may not be made on a jurisdictional basis.”).
As one court aptly noted, “there may be some value for settlement
purposes even to substantive claims that [this court has] rejected,
because” — absent a settlement — the plaintiffs could exercise
“their rights of appeal and could persuade the [Court of Appeals]
that [this court] was wrong.”
In re New Motor Vehicles Canadian
13
Export Antitrust Litig., 236 F.R.D. 53, 56 (D. Me. 2006).
As a result, neither the court’s jurisdictional rejection of
Plaintiffs’ injury-by-uncertainty claims nor its Rule 12(b)(6)
dismissal of Plaintiffs’ equal protection challenge to HB142 § 2
vitiates its jurisdiction to enter the proposed consent decree.
B.
Propriety of the Proposed Consent Decree
Plaintiffs and the Executive Branch Defendants contend that
the proposed consent decree meets the standard of “fair, adequate,
and reasonable” and “not illegal, a product of collusion, or
against the public interest.”
(quoting
Colorado,
937
F.2d
North Carolina, 180 F.3d at 581
at
509).
Intervenor-Defendants
disagree.
“In considering the fairness and adequacy of a proposed
settlement, the court must assess the strength of the plaintiff’s
case.”
Id.
“In particular, the court should consider the extent
of discovery that has taken place, the stage of the proceedings,
the want of collusion in the settlement and the experience of
plaintiffs’ counsel who negotiated the settlement.”
quotation marks omitted).
Id. (internal
“[P]rior to approving a consent decree
a court must satisfy itself of the settlement’s overall fairness
to
beneficiaries
and
consistency
with
the
public
interest.”
Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1126 (D.C.
Cir. 1983) (quoting United States v. Trucking Emp’rs, Inc., 561
F.2d 313, 317 (D.C. Cir. 1977)).
As noted above: in treating these
14
factors, the court is “guided by the general principle that
settlements are encouraged.”
North Carolina, 180 F.3d at 581.
Here, Plaintiffs’ litigation against the Executive Branch
Defendants
has
persisted
for
over
three
substantial party and public resources.
years
and
consumed
Despite this, the case
has not advanced beyond its pre-answer phase as to the Fourth
Amended Complaint.
Approval of the proposed consent decree would
resolve all claims against the Executive Branch Defendants, “avoid
the consumption of a significant [additional] amount of time and
expense by the parties, including the public fisc, and . . . allow
for the efficient use of judicial resources.”
W. Va. Highlands
Conservancy v. Pocahontas Land Corp., No. 2:13-cv-12500, 2015 WL
7736645, at *2 (S.D.W. Va. Nov. 30, 2015).10 By providing a vehicle
for resolving the claims between the settling parties as to the
remnants of a contentious challenge involving a matter that has
consumed significant state and judicial resources — and doing so
by adopting the plain meaning of HB142 § 2, which was passed by
the State legislature — the proposed consent decree is consistent
with the public interest.
See Gorsuch, 718 F.2d at 1126 (“Not
only the parties, but the general public as well, benefit from the
10
While significant discovery can ensure that the court and parties have
properly evaluated the claims at issue, see Pocahontas Land Corp., 2015
WL 7736645, at *2, this case is unique in that, as the Fourth Amended
Complaint alleges in detail, most of the important facts on which this
case is based played out in the public spotlight.
Moreover, having
already issued multiple merits rulings in this case, the court is very
familiar with its background.
15
saving of time and money that results from the voluntary settlement
of litigation.”).
The court has carefully tracked the development
of the proposed consent decree in its several iterations, required
supplemental briefing following dismissal of some of Plaintiffs’
claims, and held two hearings to address its propriety.
In the
court’s view, the revised proposed consent decree reflects a
genuine
effort
to
address
the
concerns
raised
by
the
prior
versions.
The court also observes that the parties have had the benefit
of excellent legal counsel.
Plaintiffs are well-represented by
several major nonprofit legal organizations (the American Civil
Liberties Union of North Carolina and Lambda Legal Defense and
Education Fund) and large, sophisticated law firms (Jenner & Block
LLP and Wiley Rein LLP). The Executive Branch Defendants are wellrepresented by the North Carolina Department of Justice.
While it
may appear that Plaintiffs gain little from the proposed consent
decree, which affirms the court’s reasoning in dismissing their
HB142 § 2 equal protection claim, it is a fact that HB2 was repealed
during the pendency of the lawsuit, and Plaintiffs do obtain
partial resolution of this long-running lawsuit as well as the
Executive Branch Defendants’ agreement that the parties will pay
their own costs and attorneys’ fees.
The court cannot say that
this resolution fails to reflect the relative merit vel non of the
claims alleged in the Fourth Amended Complaint.
16
Intervenor-Defendants
contend
that
Plaintiffs
and
the
Executive Branch Defendants are not in reality opposed to each
other
and,
therefore,
necessarily collusive.
that
any
proposed
consent
decree
is
It is certainly true that, unlike their
immediate predecessors, the Executive Branch Defendants have shown
little interest in litigating this case.
They have not moved to
dismiss or attempted to answer the Fourth Amended Complaint in the
nearly two years since it was filed, nor did they evince any
support for Intervenor-Defendants’ attempts to obtain dismissal on
their behalf, despite the fact that — as the court’s ruling on
Intervenor-Defendants’ motion to dismiss explains — the majority
of Plaintiffs’ claims have been found to lack merit.
Where there
has been little adversarial activity, a federal court must be
especially discerning when presented with a proposal in which
elected state officials seek to bind their successors as to a
matter about which there is substantial political disagreement.
See Horne v. Flores, 557 U.S. 433, 449 (2009) (noting that “public
officials
sometimes
consent
to,
or
refrain
from
vigorously
opposing, decrees that . . . bind state and local officials to the
policy
preferences
of
their
future
predecessors
legislative
and
omitted)).
Along these lines, Intervenor-Defendants also argue
(internal
their
thereby
deprive
powers”
of
may
improperly
executive
officials
and
designated
quotation
marks
that the proposed consent decree unduly circumscribes executive
17
discretion (Doc. 292 at 2–3 & n.2 (citing Michael W. McConnell,
Why Hold Elections? — Using Consent Decrees to Insulate Policies
from Political Change, 1987 U. Chi. Legal F. 295, 301)), and thus
may result in permanent federal supervision of core state processes
by subjecting future North Carolina executive branch officials to
“a potentially continual round of court proceedings” on charges
that they violated the decree (Doc. 287 at 10).
However, the proposed consent decree dismisses the Executive
Branch Defendants from the case having ceded nothing more than an
interpretation of HB142 § 2
faithful to its plain terms and
agreeable to all parties, including the Intervenor-Defendants.
In
its first paragraph, the proposed decree provides “that nothing in
Section 2 of H.B. 142 can be construed by the Executive Branch
Defendants [or their successors] to prevent transgender people
from lawfully using public facilities[11] in accordance with their
gender identity.”
(Doc. 294-1 at 5.)
In the second paragraph, it
provides that — as a natural consequence of the first paragraph —
the Executive Branch Defendants will not seek to apply HB142 § 2
to prohibit transgender individuals from using public facilities
in accordance with their gender identity or prosecute them for
such use, when that use is “otherwise lawful.”
11
(Id. at 5–6.)
The proposed consent decree defines “public facilities” as “multiple
occupancy restrooms, showers, or changing facilities as referenced in
N.C.G.S. § 143-760 and sect. 2 of H.B. 142.” (Doc. 294-1 at 2.)
18
These provisions follow directly from the fact that the sole
function of HB142 § 2 is to preempt regulation of access to public
facilities “except in accordance with an act of the General
Assembly.”
Thus, as the court previously concluded, there is
simply no plausible argument that HB142 § 2 itself serves as an
independent basis for regulating individuals at all.
See (Doc.
248 at 29 (“HB142 does not regulate restroom access in any fashion
. . . .”),
38
n.20
individuals”)).
(noting
that
“HB142
does
not
regulate
Indeed, at the hearing on the present motion,
Intervenor-Defendants conceded they do not disagree with that
proposition.
(Doc. 287 at 7.)
In fact, they have previously
characterized any contrary argument as “mistaken.”
See (Doc. 241
at 4 (rejecting an argument that HB142 could be the basis for
barring transgender use of a bathroom, because “as a matter of law
HB 142 cannot serve as a ‘basis’ for any school district’s restroom
access policy”)).
It is therefore unpersuasive that legitimate
executive discretion will be preempted in any way by the proposed
consent decree.
Intervenor-Defendants’
core
concern
regarding
future
executive discretion appears to be that the proposed consent decree
might be interpreted to go beyond HB142 to govern “how State
officers can apply trespass and other laws” in the future.
292 at 2.)
(Doc.
But such interpretation is foreclosed for several
reasons. As noted, the proposed decree does no more than establish
19
an agreement to be bound by the plain language of HB142 § 2, which
the court and all parties accept as correct: that HB142 § 2 is
only a
preemption
of regulation
of access to certain public
facilities “except in accordance with an act of the General
Assembly.”
Because there is no legitimate interpretation of HB142
§ 2 that runs afoul of the terms of the consent decree, future
North Carolina executive branch officials should not suffer any
cabining of their policymaking authority.
The proposed decree by
its very terms is limited to HB142 and does not extend to the
application of state trespass law or any other law of the General
Assembly,12 and Plaintiffs and the Executive Branch Defendants
readily acknowledge that the proposed decree could not be read in
such a way.
See (Doc. 290 at 6 (Plaintiffs stating that the
proposed consent decree “does not affect the application of or
enforcement
of
laws
other
than
H.B.
142”));
(Doc.
291
at
4
(Executive Branch Defendants stating that the proposed decree
“addresses the Legislative Intervenors’ concern about hypothetical
interaction of the Consent Decree with . . . other penal laws,
including that of a criminal trespass,” because it only bars
prosecution
where
a
“otherwise lawful”)).
transgender
individual’s
bathroom
use
is
Indeed, the court would lack jurisdiction
to enter a consent decree that purported to limit the application
12
Neither does the proposed consent decree extend to the application of
federal law.
20
of laws other than HB142, because no complaint in this case ever
challenged any law other than HB142 or its defunct predecessor,
HB2.
Cf. (Doc. 248 at 29–30 (noting that the Fourth Amended
Complaint did not challenge laws other than HB142, and therefore
that relief from potential application of those other laws is
unavailable in this case)).
The
question whether any North
Carolina law other than HB142 could be applied to transgender
individuals
using
public
facilities
in
accordance
with
their
gender identity was never at issue in the Fourth Amended Complaint
and, under the proposed consent decree, remains open for another
day in another forum.
consent
decree
can
Thus, nothing in HB142 § 2 or the proposed
be
construed
to
authorize
or
prohibit
transgender use of public facilities, nor are the Executive Branch
Defendants
or
their
successors
prohibited
from
arguing
the
application of any other law of the General Assembly to such use.
Intervenor-Defendants’ final argument is that the proposed
consent decree impinges on the North Carolina General Assembly’s
exclusive prerogative “to establish the permanent requirements of
North Carolina law.”
(Doc. 292 at 2.)
The court finds this
contention unpersuasive in the context of this case, where the
North Carolina legislature’s representatives have agreed that the
plain-text interpretation of HB142 § 2 set out by the court and
adopted in the proposed consent decree is the right one.
In fact,
they previously argued in favor of such an interpretation in their
21
motion to dismiss the Fourth Amended Complaint.
See, e.g., (Doc.
225 at 2–4 (arguing that “HB142 does not regulate Plaintiffs”
because it “enacts no access . . . standards, has no enforcement
provision, makes no demands on private conduct, and carries no
penalties”)); (Doc. 241 at 4).
consent
decree
purports
to
Moreover, nothing in the proposed
limit
the
North
Carolina
General
Assembly’s ability to amend HB142 or pass any law it wishes,
including any law that — unlike HB142 — does regulate individuals’
access to public facilities.13
Considering all of the above, the court is satisfied that the
proposed consent decree is “fair, adequate, and reasonable” and
not illegal, a product of undue collusion, or against the public
interest.
North Carolina, 180 F.3d at 581 (quoting Colorado, 937
F.2d at 509).
The proposed consent decree, which dismisses all
remaining claims against the Executive Branch Defendants with
prejudice, will be entered pursuant to Federal Rule of Civil
Procedure 54(b), the court finding no just reason for delay.
13
Neither does the court find any issue with “enter[ing] a consent decree
on the effect of State law over the objection of Intervenors” merely
because Intervenor-Defendants “are independent state actors with their
own interest in the integrity of State law.” (Doc. 292 at 3). In fact,
it is precisely because the Executive Branch Defendants and IntervenorDefendants are “independent state actors” that Intervenor-Defendants
cannot “block the decree merely by withholding [their] consent,” Local
No. 93, 478 U.S. at 529; see id. at 528–29 (“It has never been supposed
that one party — whether an original party, a party that was joined
later, or an intervenor — could preclude other parties from settling
their own disputes and thereby withdrawing from litigation.”).
22
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that the Supplemental Joint Motion
for Entry of Consent Decree (Doc. 289) is GRANTED.
The proposed
consent decree will be entered contemporaneously with this order.
/s/ Thomas D. Schroeder
United States District Judge
July 22, 2019
23
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