Should NC lawmakers be able to intervene in HB2 protesters’ criminal cases?

Nearly a year and a half has passed since Carol Anderson and Dale Herman were among the Moral Monday protesters arrested at the N.C. Legislative Building protesting House Bill 2.

The controversial law they were protesting has since been repealed and replaced. But the criminal cases against Anderson and Herman have lingered, and could determine whether North Carolina lawmakers overstepped their constitutional authority when amending rules that govern where people can go, what they can do and how much noise they can make while inside the Legislative Building.

On Jan. 23, District Court Judge Joyce Hamilton found Anderson and Herman guilty of trespass charges, but dismissed allegations that they violated Legislative Building rules after finding those rules unconstitutional on several fronts.

Both rulings have been appealed to Wake County Superior Court for further proceedings that have resulted in an unusual request. Paul Coble, head of the Legislative Services Commission, has asked to be allowed to intervene in the criminal cases. The commission is 10 lawmakers with Senate leader Phil Berger and House Speaker Tim Moore acting as chairmen.

“It’s unprecedented for the legislature to try to intervene in a criminal case,” said Scott Holmes, a Durham-based attorney representing the protesters. “I don't know of this ever happening.”

Not only does Holmes object to the rules for visitors to the building where lawmakers conduct their business, he also questions the General Assembly’s authority to operate its own police force.

More than 1,000 arrests

The General Assembly police have used Legislative Building rules to arrest more than 1,000 protesters since 2013, when the Rev. William J. Barber II, the former head of the state NAACP, led the beginnings of the Moral Monday protest movement.

The rules have been cited in the arrest of Barber on several occasions, with the most recent leading to him being temporarily banned from the building.

The question of whether the lawmakers’ representative can intervene could go to a judge in the next couple of months, and it could bring former state Supreme Court Justice Bob Edmunds back into a courtroom. Since his failed bid for re-election last year, Edmunds has returned to private practice in Greensboro. He's representing Coble in a request that Holmes plans to oppose.

“The North Carolina Constitution mandates a separation of powers between the legislative, executive, and judicial branches,” Holmes said. “We have successfully argued that the Legislative Services Commission has strayed beyond its proper legislative sphere into the executive function by enacting criminally enforceable building rules and running their own police force. Now, by seeking to intervene in this judicial criminal case against my clients, the Legislature is proving our point.”

In the request to intervene, Edmunds outlines the Legislative Services Commission’s concerns, and why it wants to intervene when the public is already represented by a district attorney. While it is not unusual for lawmakers to ask to intervene in civil cases and lawsuits challenging their laws, it is unusual for anyone — lawmakers, victims or others — to intervene in criminal cases, Holmes said.

“The District Attorney’s office is tasked with representing the people of North Carolina in criminal cases, and as such, the District Attorney’s interest in Judge Hamilton’s order and its effects as to the Legislative Services Commission is limited solely to the extent the order affects the criminal cases at issue here,” Edmunds wrote in the court document filed this week in the case. “Judge Hamilton’s order, however, reaches much further than these particular misdemeanor charges.”

Why commission wants a say

Edmunds contends the order holds that “many” of the Commission’s duties are unconstitutional without giving further specification. The commission, Edmunds contends, performs a variety of administrative and support functions through the Legislative Services Office — including information technology services, evaluation of state agency programs, fiscal research, bill drafting and policy analysis, as well as providing day-to-day services such as the processing of paychecks and cafeteria services.

“The consequences of the order, threatening the existence of the commission – transcend the criminal cases at issue here and the small portion of the Commission’s duties embodied in the promulgation of the Legislative Building Rules,” Edmunds stated in the intervention request.

In her Jan. 23 court order, Hamilton found that the building rules were amended and adopted in 2014 outside the formal rule-making process. The judge also found that the Legislative Services Commission violates the state Constitution’s separation-of-powers clause because lawmakers were the members of the commission when the changes were made.

The changes were made after judges in Wake County presiding over the cases of protesters arrested in 2013 Moral Monday rallies found the Legislative Building rules to be vague and overly broad in some cases. That resulted in most of the cases being dismissed.

Holmes argues that instead of addressing their concerns through Legislative Building rules, the lawmakers should have taken a different route. “If the General Assembly wanted to pass a law making it a misdemeanor to cause a disturbance in the Legislative Building, the General Assembly could follow the procedures set forth in the North Carolina Constitution for the passage of laws in the House, the Senate, and signature by the Governor,” Holmes stated in his brief appealing the case to Superior Court. “However the General Assembly did not pass the contents of the Legislative Building Rules as a generally applicable criminal statute. Rather the General Assembly delegated that power to the Legislative Services Commission... . “

But because the commission was made up of legislators, Holmes argues, the lawmakers are acting as an executive branch.

‘Their own police force’

“It violates the North Carolina Constitution and North Carolina law to allow one person, two legislators, or a Commission solely composed of legislators to enact building rules which are criminally enforceable against the Defendants,” Holmes argues.

Additionally, Holmes contends the commission failed to follow rulemaking processes that call for public notice, public hearings and an analysis of legal authority for the rule being considered.

“Given the fact that the Legislative Building Rules are being used to base decisions to arrest and charge people, the need to follow the letter of the law with respect to administrative procedure is even greater than for the typical issue,” Holmes argues.

Holmes also raises questions about the constitutionality of the General Assembly having its own police force that has the power to arrest and is supervised by lawmakers.

The lawmakers, Holmes contends, “have essentially created their own police force to enforce their own criminally enforceable building rules. This violates the separation of powers because the power to arrest and prosecute the laws is an essentially executive, and not a legislative function.”

All the court briefs in the case are due to Judge Michael J. O'Foghludha by Dec. 11, according to court officials. It’s not certain when he will hold a hearing on whether the Legislative Services Commission can intervene in the criminal matters.

This story was originally published November 30, 2017 at 4:24 PM with the headline "Should NC lawmakers be able to intervene in HB2 protesters’ criminal cases?."