The General Assembly reconvened to consider overriding a veto by the governor. During the reconvened session, legislators amended their adjournment resolution so they could take up matters not identified in a previous adjournment resolution.
If you think I am talking about the so-called Midnight Session at the start of this year, you are only partly correct. Im also referring to 2007, when the General Assembly gathered to consider overriding a veto by Gov. Mike Easley and amended its previous adjournment resolution. Beverly Perdue, then acting as president of the Senate, and Joe Hackney, as speaker of the House, signed the 2007 adjournment resolution. Was there a hue and cry?
No. Was there outrage by the press? No. Why? The obvious difference between 2007 and 2012 is the party in control of the General Assembly. When a legislature controlled by Democrats amended its adjournment resolution it was no big deal. However, when a Republican-controlled legislature did the same thing, the action was branded as conniving. It has even prompted a lawsuit.
Critics have condemned legislators for enacting Session Law 2012-1 during what they label a midnight session. The law, also known as the Dues Check-off Law, puts an end to the practice of having the state collect membership dues for the N.C. Association of Educators (NCAE) directly from teachers paychecks. The law made its way through the General Assembly in 2011 but was vetoed by now-Gov. Beverly Perdue. In the early morning hours of January 5, 2012, the General Assembly convened and in a surprising maneuver overrode the veto.
The legislature had been reconvened on Jan. 4 by the governor to consider an override of her veto of the repeal of the Racial Justice Act. There were not enough votes to override that veto. The General Assembly, as always, considered an adjournment resolution to end the session. Before adjourning, the legislature amended its adjournment resolution to provide that it would reconvene at 12:45 a.m. the next day. It did so, and enacted the Dues Check-off Law.
Opponents of the new law criticized the late-night tactics. The NCAE has taken its criticism a step further, by suing. Just hours after that lawsuit was filed, lawyers for the teachers association obtained a temporary restraining order postponing the effective date of the law. That order was issued at an ex parte hearing at which the state and General Assembly had no lawyers present.
A hearing was held on March 30, and the original temporary restraining order remains in place while a Wake County Superior Court judge considers a motion to dismiss the case.
The NCAE lawsuit hinges on Article III, § 5(11) of the state constitution, which states, in relevant part: The Governor shall, when required by Section 22 of Article II of this Constitution, reconvene a session of the General Assembly. At such reconvened session, the General Assembly may only consider such bills as were returned by the Governor to that reconvened session for reconsideration. This provision does not speak to resolutions. Bills and resolutions differ in substance and procedure.
The NCAE alleges that the General Assembly was not permitted to consider the Dues Check-off Bill on two counts. First, the bill was not returned by the governor for consideration at the Jan. 4 session. Second, during that session the General Assembly was not permitted to adopt an adjournment resolution allowing it to reconvene the following day shortly after midnight. The lawsuit states that the only matter the General Assembly may take up is the bill identified in the proclamation of a reconvened session issued by the governor. But the language of the constitutional provision upon which they rely uses the term bills. The lawsuit slyly substitutes only matter for bills.
The NCAEs lawsuit is premised on an elastic view of constitutional language. The language at issue is clear, and lawyers and judges cannot play fast and loose with it. The constitution says what it says. If a party wants the constitution to say something else, an amendment is the appropriate vehicle.Now, on the verge of the General Assemblys short session and nearly six weeks after the last court hearing, it is time to dismiss a lawsuit that is less about the law than it is about gamesmanship.
Jeanette K. Doran is executive director and general counsel at the N.C. Institute for Constitutional Law.