Mecklenburg County officials, fearing a lawsuit over the controversy-filled effort to select a new sheriff, have hired a high-powered law firm and one of the state's highest-profile litigators to defend them.
Parks Helms, vice chairman of the county commissioners, said Friday that Charlotte attorney Jim Cooney will be one of the lawyers to defend the county should the sheriff's selection process wind up in court.
The latest legal question was raised Friday, when county commissioner Dan Bishop, a lawyer, sent a letter to county attorney Marvin Bethune questioning the constitutionality of the process the Mecklenburg Democratic Party's executive committee used when it chose Charlotte lawyer Nick Mackey as sheriff.
He cited several federal court cases that held that when a political party exercises a public electoral function such as nominating candidates to fill vacancies, it must follow federal election law.
In the special election last month, precinct representatives had weighted votes based on the precinct's votes for Democratic Gov. Mike Easley in 2004. For example, a precinct that cast 1,000 votes for Easley got 10 votes in the sheriff's contest.
Bishop says that flies in the face of the federal standard for "one man, one vote."
He wants the issue to be added to the Jan. 15 county commissioners meeting agenda.
Bethune said late Friday that, depending on the amount of research required, the entire board might have to authorize him to research the issue, and he wasn't sure if he would have to seek outside help.
The county hired Cooney to work on the sheriff controversy about two weeks ago, said Michelle Lancaster, an associate general manager for the county. Mike Barnhill, a Charlotte lawyer who has previously handled litigation for the county, is also working on the case. Cooney and Barnhill work for Womble Carlyle Sandridge & Rice, a firm with more than 500 lawyers.
Cooney most recently made headlines nationally as the attorney for Reade Seligmann, one of the Duke University lacrosse players charged in a racially charged sexual assault case. The players were exonerated, and prosecutor Mike Nifong has been disbarred.
Barnhill and Cooney are researching laws on the Mecklenburg sheriff's election, and are being paid $360 per hour, Lancaster said. She added that the lawyers give the county a good rate, considering they normally charge "in the $500 (per hour) range."
Helms and Jennifer Roberts, who chairs the commission, said the county has to proceed carefully on the issue. James Ferguson, a prominent Charlotte civil rights lawyer, has suggested he will sue the county if Mackey isn't named sheriff.
Other legal challenges could come as well, Helms added. If a sheriff is improperly selected, inmates could file challenges arguing they were unlawfully held.
Controversy has percolated for weeks surrounding the selection of a replacement for former sheriff Jim Pendergraph, who left Dec. 1 to take a job in Washington, D.C.
Mackey won the Democratic party's Dec. 6 election. But concerns have been raised about the former Charlotte-Mecklenburg police officer. He resigned from the force in 2003 while under internal investigation for allegedly falsifying hours worked.
A majority of commissioners, who would have to confirm Mackey as sheriff, have said they want to wait until the state Democrats rule on two grievances challenging Mackey's election.
Republican commissioners this week raised the possibility that the commission can legally bypass Mackey.
Bethune, the county attorney, originally told commissioners state law required the Democratic Party to pick Pendergraph's replacement.
But now Bethune and the Womble Carlyle lawyers are pointing to a second state law -- one that appears to give commissioners, not the Party, power to pick the new sheriff.
Commissioners report that their lawyers have said a 2005 N.C. Court of Appeals ruling gives precedence to the law that says the commissioners pick the sheriff. The ruling cites one of the laws in saying that if a sheriff wishes to resign, the commissioners appoint a new sheriff. In the next sentence, the ruling cites the other law and adds: "if a vacancy occurs for any other reason, it remains the responsibility of the county commissioners to select a new sheriff."
But other N.C. election law experts disagree. They note that the 2005 ruling came in a civil rights case filed by a Robeson County jail inmate, not an elections law case.
