Superior Court Judge Howard Manning said Monday that an new executive order signed by Gov. Bev Perdue requiring her administration to retain government e-mail fully complies with the state's public records law.
However, the judge took no action on a motion from lawyers for Perdue to dismiss the lawsuit filed by several North Carolina news organizations, including The News & Observer and The Charlotte Observer, over former Gov. Mike Easley's mass deletion of government e-mails.
The lawsuit was filed last year after a former spokeswoman for the state Department of Health and Human Services publicly disclosed orders she recieved to delete all e-mails sent to and from the governor's office each day.
Without conceding that any e-mails were deleted by the Easley administration, Special Deputy Attorney General Dale Talbert challenged lawyers for the media organizations to produce the deleted e-mails to prove they were, in fact, deleted.
Talbert also argued that Manning could not issue a legal finding of fact in civil court that the Easley administration deleted e-mails because that would indicate the former governor committed a criminal act for which he has not been tried in criminal court. Knowingly destroying public records is a misdemeanor under state law.
Talbert said the media lawsuit, which was originally filed when Easley was still governor, is no longer valid because the new governor has issued an order telling her administration to follow the law.
Though he delayed making any ruling on the motion to dismiss, Judge Manning did not appear to buy the argument that the suit was no longer valid just because a new person occupies the Governor's Mansion.
"I'm declaring the new governor's policy to have a clean bill of health," Manning said to Amanda Martin, the lawyer representing the media organizations. "But I'm not going to dismiss your case today."
Manning gave Martin 30 days to review a lengthy new policy regarding e-mail retention released by the state Department of Cultural Resources last week and to update their complaint to reflect the new action taken by Perdue.
Manning appeared to agree with Talbert, however, that he should not issue a judicial order requiring Perdue's people to actually implement and follow the order she signed.
"I'm not going to order them to comply with the law," the judge said. "People are supposed to comply with the law."
Manning observed that the next step in the case would be for the state to provide the lawyers for the media organizations documents through discovery that could prove uncomfortable for Easley, who is now under scrutiny by both state election officials and federal prosecutors for alleged campaign finance violations and influence peddling.
"As if the former governor doesn't have enough to worry about," Manning lamented.