RALEIGH — Just before they left town on Thursday for the long holiday weekend, Republican leaders in the state House casually added a vetoed bill to the calendar for future consideration.
The bill, repealing the Racial Justice Act, joins four other bills vetoed by Gov. Bev Perdue in what House Speaker Thom Tillis has dubbed the “veto garage,” where they remain parked until Tillis thinks he has enough votes to successfully override. Lawmakers return to work Tuesday.
This concept of a metaphorical parking deck is a new one in North Carolina, arriving last year with the GOP takeover of the General Assembly, pitting the majority of lawmakers against a Democratic governor. But just how long bills can stay parked there before their meters expire is a question coming to a head soon.
It’s at the heart of a lawsuit the N.C. Association of Educators filed against the state as a result of the infamous late-night veto override vote on Jan. 5. The governor had called the legislature back into session, as required by law, on Jan. 4 solely to consider her veto of the Racial Justice Act bill. The Senate overrode the veto, but the House didn’t try because Republicans couldn’t muster the votes. Instead, legislators convened a new session after midnight and overrode the veto of a bill that took away the teachers association’s ability to automatically collect dues from paychecks.
The NCAE sued within days, challenging the bill on constitutional grounds that the legislature wasn’t properly in session, that the bill was retaliatory and that the General Assembly had failed to take an override vote promptly after the veto. It’s that last point that challenges the veto garage. It relies on wording in the state Constitution that says once the governor has issued a veto, the General Assembly must “proceed to reconsider” the bill.
The dues check-off bill had been parked for six months after it was vetoed, through several sessions of the General Assembly coming and going. The teachers association claims the law intended for vetoes to be reconsidered promptly, not at some indefinite time in the future. One of the bills in the garage has been there for more than a year.
The teachers’ position has gained some important momentum. First, former state Supreme Court Chief Justice Robert Orr, a conservative constitutional law expert, agreed to take the case, signaling this is potentially landmark litigation.
Then, on May 16, Wake County Superior Court Judge Paul Gessner sided with the teachers by issuing a preliminary injunction preventing the bill from taking effect. In order to issue an injunction, a judge has to determine a lawsuit is likely to succeed, and he did that in this case, specifically citing the teachers’ constitutional claims.
Teachers pick up support
The teachers have also picked up support from the N.C. Police Benevolent Association and the League of Women Voters, which filed briefs on their behalf. The police are interested in the case over the issues it raises about retaliation for an association exercising free-speech rights, calling this bill an abuse of power.
The League of Women Voters is interested because it worked to amend the state Constitution in 1996, giving North Carolina governors veto power for the first time. The League also says the amendment was intended to require prompt action by the legislature on vetoes, certainly not a months-long delay.
“To allow such unconscionable delay for political purposes is to make the veto process, which the League and its members worked so hard to pass, a mockery of good government,” the organization’s motion to join the suit says.
Orr, in arguing for an injunction, writes that it would cause undue uncertainty if the wording in the constitution, “proceed to reconsider,” were construed to mean “reconsider at your leisure.”
“Suppose the legislation here had dealt with a death penalty provision, a voter identification requirement, or abortion regulations,” Orr writes. “The uncertainty, confusion as to application, and indefiniteness that comes from waiting indefinitely to ‘proceed to reconsider’ could not, by any stretch, have been the intent of the framers and adopters of the veto amendment.”
But the state argues in its defense motions that there is no violation. It points out that the constitution doesn’t give lawmakers a deadline to decide whether to attempt an override or let it stand. While the 1996 amendment sets out a timetable for the governor to act, it only says legislators must “proceed to reconsider.”
And that, according to the state, doesn’t mean the General Assembly has to take a vote. In fact, simply putting the bills on its calendar for reconsideration might be all that is legally required, the state argues. Under its rules, the legislature considers all bills alive until it reaches the end of its two-year session and adjourns without scheduling a return date.
“There is absolutely nothing in … the Constitution that restricts the General Assembly’s authority to reconsider a vetoed bill at any time after the governor returns it,” Senior Deputy Attorney General Thomas J. Ziko writes. “Absent such a constitutionally based restriction, the courts cannot create one out of whole cloth.”
GOP confident of legality
The veto law, which took effect in 1997, was modeled after the U.S. Constitution, and the first veto didn’t happen until 2002 under Gov. Mike Easley. (That Legislature didn’t try to override his veto of the bill, an obscure piece of legislation dealing with appointments to boards and commissions.)
The Republican takeover reshaped the dynamic last year, resulting in 16 vetoes and seven overrides. Tillis put Democratic legislators on notice that if they don’t show up for work, they risk losing out on override votes sprung from the veto garage.
The Republican leaders in the General Assembly are confident their garage is legal. Jordan Shaw, Tillis’ spokesman, said Friday that Tillis has given ample notice about when override votes could be taken.
“The speaker has been very open about the policy, which is, when in session they’re eligible for override votes,” Shaw said.
“Vetoes haven’t been in the vocabulary of North Carolina government,” Shaw added. “We don’t have a long history of the governor being opposed by the Legislature. I understand some of the concern. But we’re on solid ground.”
House Minority Leader Joe Hackney, a Democrat from Chapel Hill, said the judge’s early ruling in the teachers’ lawsuit indicates Republicans are not on solid ground.
“I think any of those vetoes now on the calendar are legally suspect and subject to a legal challenge if somebody tries to put those laws into effect,” he said.
Another veteran legislator, Rep. Rick Glazier, a Democrat from Fayetteville, agrees.
“When the veto provision was set up it was never designed to create a veto garage,” Glazier said. “In fact, it was designed for the opposite purpose, which was to get a quick resolution on the finality – either the legislation was going to be law or the veto was going to stand. It seems to me the process they’re using now is not only in violation of the Constitution but an abusive one in terms of good government.”
Motions are still being filed in the teachers association lawsuit, and a trial date has not yet been set. The veto garage concept is not the only issue in the case, but it could end up being the most definitive one if it goes to the appellate courts.