A nonpartisan citizens’ lobbying group and 10 North Carolina residents filed a lawsuit Wednesday accusing the lieutenant governor and legislative leaders of violating the state Constitution in December when they hastily called a special session to consider laws that transform state government.
The executive director of Common Cause, the good-government advocate, and residents from Pamlico, Randolph, Watauga, Guilford and Wake counties stood in front of the Legislative Building after filing their lawsuit. They shared with reporters their frustrations about two laws that shifted long-held power 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.
“From start to finish, they took less than 48 hours to fundamentally alter our system of government,” said Burton Craige, a Raleigh-based attorney representing the challengers.
The laws, Senate Bill 4 and House Bill 17, are the focus of several other lawsuits in state court. The governor has challenged them as violations of the constitutional separation of powers. A three-judge panel has ruled in his favor on the portion of the law that merged the ethics commission and elections board, but stated he had not been able to show harm by the state Senate’s plan to have a say in who he appoints to Cabinet posts.
The lawsuit filed Wednesday in Wake County Superior Court 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 the bills in a three-day session in December without laying out to the public what was on the agenda.
Pat McCrory, who was in the last weeks of his term after losing to Democrat Roy Cooper, called a special session so legislators could approve financial assistance to victims of Hurricane Matthew and wildfires in the western part of the state. The Republican governor said the session would be for addressing the natural disasters “and other issues,” though he offered no specifics on what those issues were.
There had been talk in political circles that legislators were developing a plan to add two seats to the North Carolina Supreme Court that would be filled by McCrory before he left office after Democrats gained a 4-3 majority on the bench in the November elections.
The legislators did not put that plan forward. McCrory said afterward that he had stopped it from happening.
Legislators closed the session called for the hurricane and wildfire relief, then opened another session. They then combined the elections board with the state ethics commission and gave the legislature power to make appointments, taking away power that traditionally had been the governor’s. The lawmakers 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 University of North Carolina system boards of trustees.
Bob Phillips, the executive director of Common Cause, called the actions taken in the special session “an affront to our democracy.”
“Regardless of one’s political stripe or viewpoint, we the people are bonded by the faith that our lawmakers will abide by a fair process conducting the people’s business,” Phillips said. “But that did not happen last December.
“Fundamental to our process is the people’s voice and that’s more than voting. That’s the right to observe and participate in what is happening over there,” Phillips said, pointing to the building where legislators shape and adopt laws for North Carolina. “...This kind of activity is the very thing that causes citizens to lose confidence in their government. It should not have happened. We the people know that and I believe the lawmakers do as well.”
Berger rejected the argument. “It is difficult to take seriously this baseless lawsuit questioning the validity of a special session when that session was called exactly the way our North Carolina Constitution requires, and we expect the courts will reject this hollow press stunt,” Berger said in a statement after his general counsel obtained a copy of the lawsuit.
The lawsuit could test the meaning of Article 1, Section 12 of the North Carolina Constitution, which affords citizens a right to “instruct their representatives.” It could also test how much notice from lawmakers is sufficient to provide notice of a public meeting.
Since 1960, the challengers said, the General Assembly has enacted legislation in 26 special sessions. In all of those sessions except for the one at the center of their lawsuit, the challengers said the legislature or governor provided advance notice of the time and purpose of the special session.
Democrats raised concerns about the sessions, but the Republican-controlled General Assembly moved ahead with the legislation despite questions from inside and outside the legislative body. Protesters were outside the chambers because of the potential for the court-packing plan.
Craige described the bills that were adopted as “complex, carefully thought-out bills that required weeks to prepare,” noting that one was 18 pages and one was 25 pages. Neither was distributed to the public or committees for comment and debate.
Bob Morrison, a retired president of Randolph Hospital in Asheboro, said he did not agree lightly to join the lawsuit.
The challengers hope to make the laws null and void, expecting their case to go all the way to the state Supreme Court. They also hope to send a message to lawmakers of their intolerance for the process used in December.
“Legislative leaders used the tragedy of a hurricane to conceal a sneak attack on the authority of a properly elected governor,” Morrison said. “There was not even a pretense of proper procedure and public input.”