The legislation from the December 2016 two-day legislative session proposed numerous changes in state government structure, including curtailment of then Gov.-elect Roy Cooper’s powers, and limits on the governor’s ability to make appointments. Already, we have seen two lawsuits challenging the constitutionality of portions of these two bills. I anticipate that there will be several other lawsuits filed challenging the enactment of Senate Bill 4 and House Bill 17 under the North Carolina Constitution.
Here’s a guide to the upcoming litigation.
First, was the special legislative session improperly called? The N.C. Constitution requires legislative leaders to convene “upon receipt” of the required “legislative signatures.” Rep. Darren Jackson filed a petition challenging the legitimacy of the session. It contends that the presiding officers, cannot wait a day or two before actually convening the session; they must do so “upon receipt.” If a lawsuit is filed, the courts must determine if the General Assembly was properly convened. If not properly convened, are these two legislative enactments valid?
A second basis of litigation, (which will probably be raised in every case) arises from the Separation of Powers Clause. Last year, the N.C. Supreme Court invalidated legislation that would diminish executive appointment power by proposing to place a majority of legislative appointees on three executive branch commissions. For the first time, the court has held that a governor must appoint the majority of an executive branch commission, board or council. Cooper has relied on this recent ruling in two lawsuits that he has filed.
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A third basis for litigation involves the legislation transferring duties from the State Board of Education to the Superintendent of Public Instruction. This lawsuit has already been filed by the SBOE, and a preliminary injunction has been issued. The court must determine whether by enactment of HB 17, the General Assembly has usurped the constitutional power of the SBOE.
Fourth, the General Assembly’s combining functions of the State Board of Elections and the Ethics Commission presents many potential challenges. Cooper’s lawsuit challenges this action and a three-judge panel has issued a preliminary injunction.
Fifth, Cooper may choose to litigate the restrictions on his Appointment Powers. Thus far, he has challenged the new combined Ethics Commission/State Board of Elections, but he has not questioned the appointment of the head of the new agency. If so, the court must determine whether the General Assembly’s designation of the Elections Board Executive Director as the new combined agency director violates the governor’s Appointment Powers. The legislation requires six of eight votes to replace the director, but the governor only has four appointees. In addition, under the same provision of the state Constitution, the governor could challenge the General Assembly’s unilateral appointment of the chair of the Industrial Commission and the legislative appointment two Business Court judges.
Sixth, did the General Assembly overreach in providing jobs for political supporters? The N.C. Constitution prohibits “exclusive emoluments.” Has the General Assembly created an “exclusive emolument” by legislatively appointing Yolanda Stith as the Chief of the N.C. Industrial Commission and designating the current Executive Director of the State Board of Elections, Kim Strach, as the new director of the combined agency?
Seventh, the legislature proposed limiting the jurisdiction of the Supreme Court of North Carolina until the full Court of Appeals hears the case decided by a three-judge panel. One can safely predict that the losing party in the first litigation under this process will raise achallenge.
In addition to these areas of constitutional litigation, there are other potential and tougher constitutional claims. The Senate is probably entitled to exercise confirmation of cabinet secretaries, but Cooper has challenged legislators’ interpretation of the N.C. Constitution provision on “officials.”
The legislature can set the number of exempt state employees, who serve at the pleasure of the governor. HB 17 reduced the number from 1,500 under Gov. Pat McCrory’s administration to 425 positions under Cooper. You can anticipate that state employees will litigate this issue.
This separation of powers tension is not a new issue. It is as old as the Republic. Now, in 2017, it remains for the courts to decide whether the December 2016 legislation becomes law.
Jack Nichols, a Raleigh attorney, is a former Wake county commissioner and Wake County Democratic Party chairman.