Judge won’t dismiss lawsuit accusing NC lieutenant governor and legislators of holding illegal session

A Superior Court judge rejected Tuesday a request from North Carolina’s lieutenant governor and legislative leaders to dismiss a lawsuit accusing them of violating the state Constitution when they hastily called a special session in December to consider laws that transform state government.

Judge W. Osmond Smith III ruled instead that the lawsuit filed this spring by Common Cause and 10 North Carolina residents should be heard by a three-judge panel tasked with hearing any constitutional challenges to laws adopted by the General Assembly.

The nonpartisan, good-government advocacy group contends that Lt. Gov. Dan Forest, president of the state Senate, Phil Berger, president pro tempore of the state Senate, and Tim Moore, speaker of the state House of Representatives, violated North Carolinians’ rights when they took up bills in a three-day session in December without laying out to the public what was on the agenda. The lawsuit also contends that the elected officials did not provide the advance notice necessary to give the people affected an opportunity to “instruct their representatives.”

The special session resulted in two laws that shifted long-held appointment powers from the governor’s office to legislators, shifted some oversight of the state schools from the state board of education to the elected superintendent and overhauled the makeup of the state board of elections, ethics commission and county elections boards.

Those changes have been challenged in separate lawsuits filed by the governor and others.

Legislators held a special session called by then-Gov. Pat McCrory to provide hurricane and wildfire relief. Those subjects were dealt with quickly, the session closed, and a new one opened – called not by McCrory but by legislative leaders and the lieutenant governor. They had quietly gathered signatures from at least three-fifths of the members of the House and Senate, as required by the state Constitution, and then gave two hours public notice before a new session began.

They then combined the elections board with the state ethics commission; reduced the number of jobs appointed by the governor; made his Cabinet picks subject to Senate approval; and took away his authority to make appointments to UNC system boards of trustees.

Burton Craige and Michael Crowell, attorneys for Common Cause, argue Forest, Berger and Moore did not follow the state Constitution when calling the special session.

“This was legislating by ambush,” Craige said.

If the courts agree, the challengers want the courts to void all laws from that session.

Ann Matthews and Matthew Tulchin, lawyers from the state attorney general’s office, argued that legislators can change their rules or procedures for calling special sessions. That, the attorneys for the legislative leaders, is what happened in December.

“They’re challenging the legislature’s authority to change their rules,” Matthews argued.

She also argued that there were media reports about the special session and pointed out that protesters with the Rev. William Barber, the architect of the Moral Monday movement, had enough notice to be in the halls of the Legislative Building.

In arguing that the challengers’ lawsuit should be dismissed, Matthews and Tulchin said the core of the complaint was more about the content of the laws than the process used to adopt them.

“The way it works is if you don’t like the way they’ve acted, don’t re-elect them,” Matthews argued. “There’s nothing that they’ve alleged that shows they were unable to instruct their representatives.”

Under a process created by the Republican-led legislature in 2014, constitutional challenges of their laws go before a panel of three judges appointed by the chief justice of the state Supreme Court.

This story was originally published July 18, 2017 at 7:18 PM with the headline "Judge won’t dismiss lawsuit accusing NC lieutenant governor and legislators of holding illegal session."