DCN - The Political Watch Dog -

Order of Judge Hinton Kirk Rivers v. Richard D. Gilbert

by DCN

For the second time this year, the Pasquotank County branch of the NAACP has filed a complaint with the State Board of Elections asking that a local elections board member be removed from office.

The complaint, signed by Keith Rivers, president of the Pasquotank chapter of the National Association for the Advancement of Colored People, alleges Betsy Meads acted in an . . . (Daily Advance)

Complaint to Gary Bartlett: Voter Suppression and Intimidation Targeting Black Voters in Pasquotank County

Persons to be subpoenaed in the Kirk Rivers v. Richard Gilbert Residency Challenge

Elizabeth City NC - Rivers complaint dismissed (Rivers v. Gilbert's Residency Challenge)

Saturday, September 27, 2008 at 9:11 AM

Elizabeth City NC - Complaint to Gary Bartlett: Voter Suppression and Intimidation Targeting Black Voters in Pasquotank County

by DCN

The Pasquotank County Board of Elections voted 2-1 Thursday to dismiss Richard Gilbert's residency challenge against Fourth Ward Councilman Kirk Rivers, reversing its earlier ruling in the matter. (Daily Advance)

Elizabeth City NC - Persons to be subpoenaed in the Kirk Rivers v. Richard Gilbert Residency Challenge

Elizabeth City NC - Naacp Demands: Stop the Witch-Hunt: Kirk Rivers v. Richard D. Gilbert Residency Challenge

Tuesday, September 23, 2008 at 9:45 PM

Elizabeth City NC - Complaint to Gary Bartlett: Voter Suppression and Intimidation Targeting Black Voters in Pasquotank County

by DCN

The Knight v. Higgs case from the NC Court of Appeals was the basis for the Pasquotank Superior Court reversing the racist decision of the Pasquotank Board of Elections!

North Carolina National Association

for the Advancement of Colored People

114 WEST PARRISH STREET, SECOND FLOOR ▪ DURHAM, NC 27701

919/682-4700 ▪ 919/682-4711▪ turner@naacpnc.org

Rev. Dr. William J. Barber, II

President

Amina J. Turner

Executive Director

NAACP DEMANDS: STOP THE WITCH-HUNT IN ELIZABETH CITY

FOR IMMEDIATE RELEASE AND DISTRIBUTION

FOR MORE INFORMATION, PLEASE CONTACT: Ms. Amina Turner

21 September 2008

North Carolina Conference of NAACP Branches President Rev. Dr. William J. Barber today requested the State Board of Elections “carefully monitor” the runaway Pasquotank Board of Elections, and if the State Board determines that a pattern of voter harassment and intimidation exists between Republican activists and the Board to suppress African American vote, that two members of the Pasquotank Board of Elections be removed. The complaint to the State Board of Elections is attached.

Rev. Barber demanded the Pasquotank Board of Elections stop the witch hunt against the Rivers family in Elizabeth City and that Michele Aydlett, a Democrat, and Betsy Meads, a Republican, be removed from their appointed positions to the Pasquotank Board of Elections.

The North Carolina NAACP, which leads over 100 adult and youth branches across the State, called upon its Branches and its 85 partner organizations in the People’s Coalition it has organized to demand justice for Elizabeth City Councilperson Kirk Rivers and his family, for the Pasquotank Board of Elections to stop its continued attack on Mr. Rivers, and for the bodies which appoint the members of the Elections Board to remove said Board members if they refuse to obey the well-documented Election Laws.

Councilperson Rivers has lived in Elizabeth City’s 4th Ward his whole life. His father, Raymond Rivers, was the long-time President of the Elizabeth City NAACP Branch, and his mother was a long time council person. Kirk Rivers has been an NAACP activist his entire life—with his home always in the 4^th Ward. In 2007 he was re-elected by a large margin over a white woman candidate, to serve his home Ward on the City Council for his third fourth year term. The defeated candidate’s husband, a Republican activist, filed a legal challenge against Councilperson Mr. Rivers, alleging he did not maintain his permanent domicile in the 4^th Ward at the time of the election and should be removed from office.

Mr. Rivers married Ms. Nina Griffin last year and at the time of the 2007 election, the couple was renovating their wedding home they had bought in the 4th Ward. While the work on their new home was going on, the newly-weds camped out at her parents' house outside the 4^th Ward. It was clear to all that Mr. (and Mrs.) Rivers did not intended to make the home of her parents their permanent residence. In fact, it was clear that their permanent residence was the house they were renovating in the 4^th Ward. In the face of this strong evidence and common sense which showed Kirk Rivers never intended to leave the 4^th Ward, two Pasquotank Board of Election members--Michele Aydlett and Betsy Meads--ruled Mr. Rivers was not a resident of the 4^th Ward, and struck his voter registration at that address. The City Council then removed him from his seat on the City Council. Mr. Rivers appealed to the Superior Court, which granted his petition to reverse the Board. The Superior Court ruled:

Clearly he had not abandoned that domicile and had not actually resided in the new domicile so he had not yet acquired a new domicile.

The North Carolina election law clearly provides that residency only changes when there is an intent to make that change permanent. Kirk Rivers is and always has been a resident of the Fourth Ward. The Superior Court admonished the Elections Board for not following the law. "That's the law and that should have been considered by the Board." .

The Court went on to instruct the Elections Board, if it wanted to, that it may tale further evidence on the limited question of whether Mr. Rivers intended to make his in-laws' house his permanent home.

Now, apparently in a fit of sour grapes, the Elections Board has issued subpoenas to 24 people, including two City Council members, the Director of Parks and Recreation, the Director of Public Utilities, the City Clerk, the Electric Superintendent, the Chief of Police, a Captain in the City Police Department, and the Chief Building Inspector. The Elections Board is in violation of the Superior Court order. It has set out to open up a second wave of harassment on Mr. Rivers, his family and friends, and other key African American leaders during the important election season. The pretextual charge is that Mr. Rivers committed perjury when he voted in the Primary of May of 2008. This separate allegation was heard and dismissed where many of the subpoenaed officials already testified.

The NAACP finds it intriguing that the same man who challenged Mr. Rivers’ eligibility to represent the 4^th Ward where he had lived his whole life, also found it necessary to challenge the domiciles of 18 African American students at Elizabeth City State University, a historically black college, to vote in municipal elections. Mr. Gilbert’s challenge to the young Black voters were also thrown out—although he and the Elections Board harassed them with subpoenas to make them prove their residency.

"Mr. Gilbert’s flawed interpretations of the law always seem to be directed toward African American young people who are exercising their constitutional rights to vote and participate in governmental decisions,” said Rev. Barber, NAACP State President. "In a period in which most election officials are preparing for an election season where turnout numbers are expected to break records, the Pasquotank Board of Elections, which should be encouraging this new wave of interest and participation, spends a disproportionate amount of time with barking up dead-end legal alleys. The NAACP of North Carolina, like the U.S. Constitution, believes that all Elizabeth City residents have the right to be represented by their elected candidates of choice.”

Dr. Barber concluded his statement with a clear demand: “The NAACP calls for the removal of Pasquotank County Board of Election members Michele Aydlett and Betsy Meads if they refuse to follow the law. Stop this frivolous witch hunt against the Rivers family.”

####

Elizabeth City NC - Persons to be subpoenaed in the Kirk Rivers v. Richard Gilbert Residency Challenge

Elizabeth City NC - Order of Judge Hinton Kirk Rivers v. Richard D. Gilbert Residency Challenge

Tuesday, September 23, 2008 at 9:44 PM

Elizabeth City NC - Persons to be subpoenaed in the Kirk Rivers v. Richard Gilbert Residency Challenge

by DCN

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

PASQUOTANK COUNTY SUPERIOR COURT DIVISION

FILE NO. 08-CVS-309

)

EDWARD KIRK RIVERS )

)

Petitioner, )

)

v. ) MEMORANDUM OF DECISION

) AND ORDER

)

RICHARD D. GILBERT, )

)

PASQUOTANK COUNTY )

BOARD OF ELECTIONS, )

)

And )

)

THE CITY OF ELIZABETH CITY, )

Respondents. )

THIS MATTER came on for hearing before the undersigned Superior Court Judge presiding during the July 7, 2008 session of Civil Superior Court for Pasquotank County upon the Petitioner’s Motion for Relief Of Final Order of the Pasquotank County Board of Elections, said Motion having been filed on April 4, 2008; the Petitioner was represented by Anita S. Earls, Attorney; Respondent Richard D. Gilbert appeared on his own behalf; the Pasquotank County Board of Elections was represented by R. Michael Cox, Attorney; and the City of Elizabeth City was represented by William H. Morgan, Jr., Attorney. After hearing the arguments of counsel and Mr. Gilbert, and upon considering all matters appearing of record herein, including the transcript of the hearing conducted by the Pasquotank County Board of Elections on March 18^th and 20^th, 2008, the Court issues this Memorandum of Decision and Order:

This matter is for review by the Superior Court of a decision of the Pasquotank County Board of Elections entered on the 20^th Day of March 2008 and signed the 26^th day of March 2008 on the residency challenge, pursuant to N.C. Gen. Stat. § 163-85, filed by Richard D. Gilbert against Edward Kirk Rivers. Following the oral arguments of all parties on July 7^th, 2008, the Court reviewed the written briefs submitted by the Petitioner and by Respondent Pasquotank County Board of Elections, as well as the cases proffered by the parties. The Court recognizes the Court’s standard of review as delineated in statutes, as well as in Knight v. Higgs, 659 S.E.2d 742 (N.C. App. 2008).

In reviewing this matter this Court, acting as an appellate court, first reviews the record for errors of law. The Court then reviews the record to insure that procedures specified by law in both statute and ordinance are followed. Here, the Court finds there are no violations with regard to the procedure utilized by the Pasquotank Board of Elections. The Court further reviews the record to ensure that that appropriate due process rights of the Petitioner were provided. The Court finds that there were no violations of the Petitioner’s due process rights during the hearing of this matter. The Court reviews the record to ensure that the decision of the Board is supported by competent and sufficient evidence in the whole record; and to ensure that the decision is not arbitrary and capricious.

With regard to the Order signed on March 26^th, 2008 by the Chair of the Pasquotank County Board of Elections, there were five findings of fact and four conclusions of law. The issue for the Board is whether or not Petitioner, Mr. Rivers, had made a change in his domicile or residence. The cases and statues with regards to election law equate the two and the Court will make no distinction between the two. The Court’s research and reading leads the court to the determination that to effectively change one’s domicile, a person must do four things:

1. Abandon the first domicile, AND

2. Have the intention not to return to the first domicile, AND

3. Acquire a new domicile by actual residence in that domicile, AND

4. Have the intention of making the new residence a permanent home.

Also, a person is not deemed to have acquired a new domicile until they have abandoned the old domicile. To effect a change in a domicile, the person must have a new domicile/residence. Intent to abandon or not to return to the first domicile and intent to make a permanent home in a new domicile is seldom provable by direct evidence and normally provable by circumstances such as the actions and the statements of the person.

The Board of Elections Order is the subject of this review and the Order of the Board speaks to abandonment of Mr. River’s domicile at 512 Magnolia Street. This Court will not comment on which way the Board decided. But in the Court’s review, the Order does not speak to all four of the legal requirements necessary to effect a change in domicile. The Order speaks to the abandonment of the first domicile but not to the acquisition of a new domicile and the actual residence coupled with the intention to make the new domicile a permanent home. That is the law, and that should have been considered by the Board and addressed by the board in its Order. The Court finds the Order is deficient in that regard.

Therefore, the Court finds that there is a substantial error of law in the Order of the Board of Elections in this matter. In light of this finding with regard to the legal deficiency in the Order, the Court does not reach and will not address the Petitioner’s second claim that the proceedings before the Board of Elections violated the state Open Meetings Law, N. C. Gen. Stat. § 143-318.11(c).

NOW, THEREFORE, IT HEREBY ORDERED that the Final order of the Pasquotank County Board of Elections dated March 26, 2008 decreeing that the Petitioner is ineligible to remain registered to vote at 512 Magnolia Street, Elizabeth City, NC and directing that his voter registration card be corrected to reflect his address of 101 Madeline Lane, Elizabeth City, NC be reversed and the matter is remanded to the Pasquotank County Board of Elections for further proceedings consistent with this Order.

IT IS FURTHER ORDERED that at the discretion of the Board, an additional evidentiary hearing may be held if necessary to supplement the record herein to determine the domicile of Mr. Rivers at the time of this challenge. In any case, whether or not an additional evidentiary hearing is held, on remand the Board is to consider all four prongs of the test for determining an actual change in domicile.

IT IS FURTHER ORDERED that nothing herein dissolves or otherwise disturbs the Order of the Court dated May 12, 2008 staying the March 26^th Order of the Pasquotank County Board of Elections pending the final resolution of this matter and directing that the Petitioner may continue holding his seat representing the 4^th Ward on the City Council of Elizabeth City pending the resolution of the Petitioner’s appeal.

Entered in open court this, the 9^th day of July, 2008 and signed this, the ____ day of ____, 2008.

______________________________

The Honorable Alma L. Hinton

Superior Court Judge Presiding

Elizabeth City NC - Complaint to Gary Bartlett: Voter Suppression and Intimidation Targeting Black Voters in Pasquotank County

Tuesday, September 23, 2008 at 9:43 PM

by DCN

North Carolina National Association

for the Advancement of Colored People

114 wEST pARRISH STREET, SECOND FLOOR ▪ DURHAM, NC 27701

919/682-4700 ▪ 919/682-4711▪ turner@naacpnc.org

Rev. Dr. William J. Barber, II

President

Amina J. Turner

Executive Director

September 21, 2008

Mr. Gary Bartlett, Executive Director

North Carolina State Board of Election

Raleigh, NC

RE: Voter Suppression and Intimidation Targeting Black Voters in Pasquotank County.

Dear Mr. Bartlett:

On behalf of the North Carolina Conference of over 100 NAACP Branches across North Carolina, I file this formal complaint against what appears to be a conspiracy between a Republican activist in the County and two members of the Pasquotank County Board of Elections. Specifically, we allege that:

On September 23, 2008, the Pasquotank County Board of Elections has announced it will hold a hearing to elicit evidence regarding the residency and domicile of City Councilman Kirk Rivers.

The Board, in its exercise of its official duties, has the authority and duty to, in good faith, consider good faith challenges to voters, this Board has shown by its actions, as alleged herein, that it is not acting in good faith and has abused its discretion and limited powers by seeking to examine twenty-four (24!) witnesses who the Board has subpoenaed to appear at said hearing. The two dozen witnesses include, among others, two city council members, the Director of Parks and Recreation, the Director of Public Utilities, the City Clerk, Electric Superintendent, the Chief of Police, a Captain in the City Police Department, and the Chief Building Inspector.

Some of these witnesses, along with several other witnesses, have already testified during the-day hearing the Board held on the same complaint against Mr. Rivers, several months ago.

The purpose of the hearing this week has been tightly circumscribed by a recent Superior Court order, attached here to, namely to determine whether Mr. Rivers, who with his new bride was temporarily camping out at her parents home while the newly-weds’ home was being prepared for them, ever intended to make his new in-laws’ house his permanent domicile. As can be seen from the Court’s order, this is the only issue before the Board now.

Although the Board’s spurious fishing expedition with its two dozen subpoenas will be in contempt of the Superior Court’s order, it is obvious from the people subpoenaed and the statements made that the Board intends to harass, intimidate, and suppress a leader in the African American Community during one of the most important elections ever held in North Carolina, to try to suppress the Black vote and intimidate voters.

The Board’s pretextual reason for this new round of harassment is that it wants to try to show that Mr. Rivers committed perjury when he voted in May 2008 when he answered the question about where he lived.

This separate allegation that the Republican activist made against Mr. Rivers several months ago was dismissed by this same Board, after holding a day-long hearing in which some of these officials already testified.

The Superior Court, in reviewing the Pasquotank Board of Election decision that Mr. Rivers’ camping out in his new in-laws home while his marital home was being renovated did not meet the statutory requirements for acquiring a new domicile. The Court said:

Clearly he had not abandoned that domicile and had not actually resided in the new domicile so he had not yet acquired a new domicile.

That's the law and that should have been considered by the Board.

Residency only changes when there is an intent to make that change permanent, therefore, Kirk Rivers is and always has been a resident of the Fourth Ward.

The Court remanded the case with clear instructions to the Pasquotank Board of Elections ,to use its discretion in addressing the only question before it, whether Mr. Rivers intended to make his in-laws' house his permanent home. But it was not the Court’s instruction that the Board reopen and rehear other challenges filed against Mr. Rivers.

The Court clearly limited the scope of any additional evidentiary hearing, if the Board decided to proceed with the case: “At the discretion of the Board, an additional evidentiary hearing may be held if necessary to supplement the record herein to determine the domicile of Mr. Rivers at the time of this challenge.” (emphasis added).

The Board has abused its discretion by issuing subpoenas to 24 witnesses for its “additional evidentiary hearing” because many of them have no information or evidence relevant to where Mr. Rivers lived when the challenge was filed on February 21^st, 2008.

Those subpoenaed include several public officials, such as the Chief of Police, who have important duties to carry out. The Board’s witnesses will take up a full day of testimony, leaving no time for witnesses Mr. Rivers might call unless the matter is then extended to yet another day.

At a time when North Carolina’s Election Boards are being swamped with thousands of new voters and thousands more voters who have not come to the polls but who will certainly want to vote in the important national and state elections this fall, the Pasquotank County Board of Elections should be engaged in the fundamental tasks of preparing for a smooth and orderly voter registration process and election.

Instead, this Board has spent three days in a hearing and a decision on a frivolous complaint which the Superior Court, upon review, found to be invalid. Now it intends to spend at least another day, and maybe more, in violation of the scope of any new hearing the Court ordered it might hold, against one of the most visible and principled African American leaders in the County.

The Board, by this action, lends further weight to the perception in the Community that is abusing its powers to pursue a personal vendetta against a popular Black elected official.

This is the same Board of Elections, acting on complaints from the same Republican activist that issued subpoenas to 18 Elizabeth City State University students, requiring them to appear before the Board to defend their residence last year.

The North Carolina NAACP has an outstanding complaint in that matter with the Civil Rights Division of the U.S. Department of Justice. We believe the Board and the Republican activist it has a clear pattern of cooperating with against the interests of Black voters are intentionally targeting African American voters, harassing them with long and expensive hearings, based on frivolous challenges to their voting domiciles. The aim is obvious--to intimidate young African American voters and respected community leaders, and all similarly situated African Americans, to chill their free exercise of the hard-won right to vote in Pasquotank County.

Because of this pattern by two members of the Pasquotank Board of Elections, who appear to be working in concert with a Republican activist, the North Carolina Conference of NAACP Branches respectfully requests the State Board to carefully monitor the actions of the Pasquotank County Board of Elections in this case. If the Pasquotank Board continues to disregard the narrowly drawn Court Order, insists on trying to compel testimony on issues that have already been decided and ought not to come before the Board again, then we respectfully request the State Board take the necessary steps to remove the members of the Pasquotank County Board of Elections who are engaged in the acts alleged herein.

Thank you for your immediate attention to this matter.

Sincerely,

William J. Barber II

Enclosures: Superior Court Order in Rivers

Transcript of Judge Hinton’s Remarks in Open Court

List of Witnesses Subpoenaed to September 25, 2008 Hearing

Elizabeth City NC - Persons to be subpoenaed in the Kirk Rivers v. Richard D. Gilbert Residency Challenge

Tuesday, September 23, 2008 at 9:42 PM

by DCN

PASQUOTANK COUNTY BOARD OF ELECTIONS

426 McArthur Drive, P.O. Box 1797, Elizabeth City, NC 27906-1797

Phone (252)335-1739, FAX (252)331-2560

Michele E. Aydlett, Chairman Linda G. Page, Director

Betsy S. Meads, Secretary Bonnie Godfrey, Deputy

William T. Skinner, Member

The following is the list of individuals to be subpoenaed and the time line for appearing on September 25, 2008, for the Rivers Hearing:

9:00 a.m.

Anita Hummer. Councilwoman

Jean Baker, Councilwoman

Jim Overman, Director of Parks and Recreation

Andrea Simpson

Ed Conran, Director of Central Communications

Richard Gilbert

10:30 a.m.

Nina Rivers

Marvin Griffin

Catherine Griffin

Dianne Pierce-Tamplen, City Clerk

Belinda Arnold, Electric Customer Service

Lt. John Etheridge, Police Department

1:30 p.m.

Capt. Frank Koch, Elizabeth City Police Dept.

Paul Fredette, Director of Public Utilities

Vivian White, Administrative Assistant

Myrtle Rivers

Raymond Rivers, Sr.

Raymond Rivers, Jr.

Keith Rivers

3:00 p.m.

Karl Clow, Electric Superintendent

Chief Charles Crudup

Rich Olsen, City Manager

Kirk Rivers

Stanley Ward, Director/Chief Building Inspector

See related:

Elizabeth City NC - In buildup to elections, board to consider Sunday voting Board delays talks on Rivers' challenge

Thursday, August 21, 2008 at 12:10 AM

Board of Elections Elizabeth City NC

by DCN

To ensure that everyone who plans to vote in the upcoming presidential elections has plenty of time to do so, Pasquotank elections officials are considering allowing one-stop early voting on Sundays.

Raymond Rivers Sr., first vice president of . . . (Read More)

See related link:

Board of Elections Edgecombe County NC

Obama Incites Republicans With New North Carolina Black Voters

Saturday, August 9, 2008 at 11:21 PM

by DCN

Aug. 6 (Bloomberg) -- The North Carolina waterfront community of Elizabeth City witnessed an early skirmish in a high-stakes political battle over registering new black voters, which may help decide the outcome of the presidential election.

Republican voter Richard Gilbert last year challenged the eligibility of several students at historically black Elizabeth City State University to vote in a . . . (Read More)

See related link:

Elizabeth City NC

Elizabeth City NC - DA plans to review residency challenge Residents claim perjury committed

Sunday, July 27, 2008 at 6:57 PM

by DCN

District Attorney Frank Parrish said he will review documents from a recent residency challenge involving allegations of perjury by 4th Ward City Councilman

Kirk Rivers.

The Pasquotank County Board of Elections delivered its evidence to . . . (Read More)

See related link:

Elizabeth City - Rivers appeal remanded to board of elections

Sunday, July 13, 2008 at 9:20 PM

by DCN

Fourth Ward City Councilman Kirk Rivers won another legal battle Wednesday in his ongoing efforts to fend off claims that he moved out of his ward. See the ongoing fight against Rivers by a white man who wants him removed from the council.

See related link: