NC's GOP lawmakers don't want to leave lawsuit defense to Cooper

cjarvis@newsobserver.comJuly 31, 2013 

COOPER.090810.TI

N.C. Attorney General Roy Cooper

TAKAAKI IWABU — newsobserver.com

— Unhappy with the Democratic state attorney general’s personal opposition to some of the laws the Republican-controlled General Assembly has passed, legislators want the option to mount their own defense when the legislation leads to lawsuits.

A provision accomplishing that was added to an unrelated bill in the final rush toward the end of session and was given final approval in the early morning hours Friday. The legislation, Senate Bill 473, is on the governor’s desk awaiting action.

If it becomes law, the bill would allow the speaker of the House and the president pro tem of the Senate to intervene in lawsuits. Currently, in North Carolina and nearly all of the rest of the country, defending the state’s laws falls to the attorney general.

But Attorney General Roy Cooper has spoken out against recent legislation on abortion and voter identification, and in 2011 he angered Republican lawmakers by refusing to join 26 other states in a legal challenge against the federal health care law. The GOP leadership in the legislature ended up filing a friend-of-the-court brief in another state’s lawsuit.

Several laws that passed the GOP-controlled legislature last session have led to federal lawsuits, and advocates for abortion and voting rights have threatened to sue over action taken this year.

House Speaker Pro Tem Paul “Skip” Stam, a Republican lawyer from Apex, said the bill was prompted by the fact that three attorneys general have refused to defend same-sex marriage laws in their states. One of those cases led the U.S. Supreme Court in June to dismiss an appeal of a lower-court ruling that overturned a voter-approved law banning same-same marriage in California, finding that the appellants had no legal standing to appeal in the wake of the attorney general’s refusal to appeal.

That, along with Cooper’s criticism of the bills, is what led to the last-minute provision, Stam said.

“With all these public political statements, we want to have an option in case he doesn’t vigorously defend the statute and the laws of North Carolina when they are taken to court,” Stam said Wednesday.

“In many cases, his staff has done a fine job defending laws. Reasonable people can disagree over the best way to defend something. I don’t want to be stuck with his defense if he makes a poor decision.”

Cooper said even if the bill becomes law it will still be his duty to defend constitutional challenges in court. He said a judge would likely have to decide in each case whether to allow the legislature to intervene, but that could complicate the litigation and cost the state more by paying additional attorneys.

“I think that there is a potential for conflicting and confusing legal positions on behalf of the state,” Cooper said Wednesday.

Cooper said his legal obligation to defend the state doesn’t prevent him from expressing his opinion.

“In fact, I have been speaking out because I’m trying to stop some of this bad legislation before it becomes law,” Cooper said. “In addition, I think some of the laws are bad public policy.”

If the governor does sign the bill, a technical correction will have to be approved, as there is a typo in the legislation. A late-night handwritten amendment to ensure the bill conforms to the state’s rules of civil procedure governing intervention was misread when the bill was finalized, and now erroneously refers to an unrelated rule.

Jarvis: 919-829-4576

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