Lawmakers to return to Raleigh with open-ended agenda

Gov. Pat McCrory has scheduled a special session of the state legislature for 10 a.m. Tuesday, and four words in his proclamation are fueling speculation that lawmakers might go beyond disaster relief.

McCrory called the session to allocate disaster funding to help victims of Hurricane Matthew flooding and wildfires in Western North Carolina. But the governor left Tuesday’s agenda open-ended: The proclamation says the purpose also includes “addressing any other matters” legislators want to consider.

House Speaker Tim Moore and Senate leader Phil Berger won’t say what else might be on the agenda, but their recent comments haven’t ruled out an attempt to add two seats to the N.C. Supreme Court. And a high-ranking Republican House member said a deregulation bill from earlier this year could resurface.

Legislators have been told the session will last two or three days. While the March special session that passed House Bill 2 took just one day, there are procedural obstacles to moving so fast this time. The legislature’s adjournment this summer effectively killed all remaining bills – meaning lawmakers can’t bypass the committee review process by amending an existing piece of proposed legislation.

Critics of the Republican-dominated legislature have warned of what they call “court packing” – the idea the legislature might offset Democrat Mike Morgan’s election to the state Supreme Court by adding two more justices who could be appointed by Republican McCrory before he leaves office in January. The move would change the balance of the court from a 4-3 majority for Democrats to a 5-4 majority for Republicans.

House Majority Leader John Bell, a Goldsboro Republican, downplayed the possibility in a statement released Friday afternoon. “The truth doesn’t make good headlines,” he said. “The GOP has not had any formal conversations of substance on adding justices.”

On Thursday, Berger spokeswoman Amy Auth sent a statement to The News & Observer in response to a question about Tuesday’s agenda.

“The only confirmed issue for next week’s special session is taking up Gov. McCrory’s disaster relief proposal,” Auth said. “We are also carefully reviewing what Gov.-elect (Roy) Cooper did as Senate Majority Leader in 2000 and prior.”

Auth did not respond to follow-up questions about what aspects of Cooper’s Senate record are under review by Berger’s staff.

In discussing the “court packing” issue, some Republicans have pointed to 2000, when a legislature controlled by Democrats added three seats to the N.C. Court of Appeals – increasing the total number from 12 to 15. Then-Gov. Jim Hunt appointed the three judges on the day before he left office.

Supporters said the expansion was needed because of a heavier workload, but critics called it an attempt by Democrats to have more Democratic judges appointed to the court before Hunt left office. Sid Eagles, the court’s chief judge at the time, said he didn’t want the extra judges.

Thomas Mills, a Democratic political consultant and former congressional candidate, disputes the idea that the 2000 change was “court packing.”

“The Court of Appeals never acts as a single body,” he said in a blog post. “They meet in three judge panels. So, comparing additional supreme court seats to appellate court seats is the epitome of false equivalency.”

Tony Rand, who was among the Senate’s leaders at the time, said the Court of Appeals expansion helped alleviate judges’ workload. He acknowledged that talk of expanding the Supreme Court came up a year later after the Democrats’ 2001 redistricting maps faced a court challenge.

After the court ruled against some of the maps, Rand said there was talk among “some of the boys and girls.”

“There was discussion about ‘my God, we’ll put two more on the Supreme Court,’ ” Rand said. “It was more of a reaction and I don’t ever remember it getting out. We figured, well, that would be going too far.”

Democratic legislators say they’ve been getting emails and calls from opponents of any Supreme Court change. “Citizens across NC are making it known – they do NOT want (Republican lawmakers) to force an undemocratic court packing scheme during special session,” House Democratic Leader Larry Hall tweeted Friday.

As he developed his special session proclamation, McCrory sought advice from fellow members of the Council of State – the statewide elected officials in the executive branch – on the topics covered by the session.

Several Democrats and Labor Commissioner Cherie Berry, a Republican, urged McCrory to limit the session to disaster relief.

“Commissioner Berry concurs with the governor’s request to call a special session, however, it is her opinion that the special session should be limited to the stated purpose of authorizing financial assistance necessary to aid the recovery from both Hurricane Matthew and the western North Carolina wildfires,” Berry’s chief of staff, Art Britt Jr., wrote to the governor’s office.

Lt. Gov. Dan Forest and Agriculture Commissioner Steve Troxler, the other Republican Council of State members, simply replied that they “concur” with McCrory’s request as proposed.

‘Other stuff’ on tap?

Rep. Chuck McGrady, a Hendersonville Republican and a House budget co-chairman, said legislators might address non-disaster issues during the session. “I wouldn’t be surprised to see some other stuff,” he said.

One possibility is a regulatory reform bill that died in the final hours of this summer’s session.

“We got very close to an agreement on that thing” with the Senate, McGrady said. “I’ve heard discussion that we ought to put together that bill. There’s some housekeeping stuff like that that’s out there.”

The deregulation bill would have reduced the number of counties that must conduct vehicle emissions inspections, repealed the ban on discarding televisions and computers in landfills, and allowed a new technology to dispose of waste liquids from landfills without permits. Moore has said the bill’s failure was his biggest disappointment of the session.

Rep. Pricey Harrison, a Greensboro Democrat who’s active on environmental issues, said Republicans shouldn’t resurrect the bill in the special session.

“It lacks transparency and it’s not good government to bring up a controversial bill” in a brief session, Harrison said. “It just makes sense to have a little more deliberative debate about it.”

Since legislators would have to refile the bill, it’s unclear what provisions might appear in the special session – multiple versions were on the table when the legislature adjourned in the summer. Harrison said she’s particularly worried about a Senate proposal to sharply limit wind energy development.

That measure would prohibit skyscraping wind turbines from going up in military flight paths and would make large swaths of the state off-limits to wind farms.

Environmental groups are also concerned about the possibility. “It’s unfortunate that Gov. McCrory hasn’t strictly limited the special session to helping victims of Hurricane Matthew as advised by the Council of State,” Sierra Club lobbyist Cassie Gavin said, adding that the proclamation “invites legislative mischief.”

The special session has also prompted speculation, including by Wake County Democratic Rep. Darren Jackson on Twitter Friday, that lawmakers might limit the governor’s political appointment powers after Cooper defeated McCrory.

Around the time McCrory took office in 2013, legislators increased the number of state positions exempt from the Personnel Act from 400 to 1,500. That means those employees don’t have civil service protections and can be dismissed when a new governor takes office.

Both McGrady and Rep. Jason Saine, a Lincolnton Republican who chairs the House Finance Committee, said they’ve heard no talk about changing that law.

“I haven’t heard any discussion of that from anybody,” Saine said, adding that he’s hopeful legislators will stick to disaster relief.

“That’s exactly what I want this close to Christmas.”

Staff writer Anne Blythe contributed to this report

This story was originally published December 10, 2016 at 10:18 AM with the headline "Lawmakers to return to Raleigh with open-ended agenda."