Thirteen months have passed since Carol Anderson and Dale Herman were convicted of trespass charges after refusing to leave the North Carolina Legislative Building during a Moral Monday protest over House Bill 2.
On Monday, the protesters are due in Wake County Superior Court as part of an appeal that could decide whether North Carolina lawmakers went beyond 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 building where the lawmakers conduct their business.
A ruling for the protesters could have an effect on other cases, including the one lingering against the Rev. William J. Barber II, the former state NAACP leader and architect of the Moral Monday movement.
Anderson and Herman, Durham residents, were arrested on May 16, 2016, protesting House Bill 2, the law restricting bathroom access for transgender people which since has been partially repealed.
On Jan. 23, 2017, 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.
Not only does their attorney object to the rules, he also questions the General Assembly’s authority to operate its own police force.
Prosecutors appealed the judge’s order on the building rules, and that brought an unusual request from state lawmakers.
No lawmakers at DA’s table
Late last year, Paul Coble, head of the Legislative Services Commission, 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, both Republicans, acting as chairmen. The full commission did not meet to take up the question, Rep. Darren Jackson, a Wake County Democrat also on the commission, has said.
Nonetheless, with former North Carolina Supreme Court Justice Bob Edmunds acting as their attorney, the lawmakers tried to persuade Superior Court Judge Carl Fox they should have a seat at the table.
Scott Holmes, a Durham-based attorney representing the protesters, protested the request, calling it unprecedented to have an outside party intervening in the prosecution of a criminal case. “I don't know of this ever happening,” Holmes said.
On Jan. 31, Fox ruled against the lawmakers represented by the former Supreme Court justice. In his order, the judge stated that the legislature had not cited a law showing that intervention in a criminal case was allowed.
Geeta Kapur, a Durham-based attorney also representing the protesters, called Fox’s ruling “a victory.”
The General Assembly police have used Legislative Building rules to arrest more than 1,000 protesters since 2013, when the Moral Monday protests began.
The rules have been cited in the arrests and tweaked more than once after court rulings went for the protesters.
The changes were made after judges in Wake County presiding over the cases of protesters arrested in 2013 Moral Monday rallies found the rules to be vague and overly broad in some cases. That resulted in most of the cases being dismissed.
In her court order on Jan. 23, 2017, 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 – not the executive branch – made the changes.
Holmes argued 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... .”
In the request to intervene, Edmunds outlined the Legislative Services Commission’s concerns, and why it wanted to intervene when the public already is 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.
Questions about police powers
Edmunds wrote in his request to represent lawmakers at the prosecutor’s table that Hamilton's order was sweeping and vague in contending that “many” of the commission’s duties are unconstitutional without giving further specification.
“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.
“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. “Judge Hamilton’s order, however, reaches much further than these particular misdemeanor charges.”
But prosecutors have put forward many of the same arguments in recent court filings that Edmunds made last year.
In response to protesters asking for the trespassing verdict to be vacated, Wake County Assistant District Attorney Nisha Patel noted that the commission at the center of the case 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.
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 has raised questions about the constitutionality of the General Assembly having its own police force that has the power to arrest and is supervised by lawmakers.
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.”
Power of two
Patel responded in court documents that what North Carolina lawmakers have set up is similar to what the U.S. Congress does. The prosecutor argued that lawmakers need a way to keep order inside the buildings where laws are made.
“The similar constitutional design and functioning of the United States Congress and state legislatures, such as the General Assembly, necessitates the inference that state legislatures also possess the ability to keep order and nullify contempt to carry out the legislative function,” Patel wrote. “The inability to do so would leave the General Assembly without any mechanism by which to cease disruptions obstructing legislative staff from performing their constitutionally mandated function. This would also leave the government’s ability to function vulnerable to the whims of the masses. There are no functional differences between Congress and the General Assembly that would necessitate different contempt powers.”
Patel also noted that building rules leave it up to the courts, a separate branch of government, to find guilt or innocence of individuals accused of violations.
But Holmes pointed out in his response that the House speaker and Senate leader can approve building rules on their own without any meeting of the commission, wielding much power. The General Assembly leaders also may single out individuals who can receive waivers from the building rules during their terms in office, Holmes noted.
“(T)hese two legislators can unilaterally and without due process immunize individuals from prosecution under the building rules by issuing ‘waivers from prosecution,’” Holmes stated in his response to the prosecutor.
The state constitution, Holmes argues, does not allow two lawmakers to unilaterally create laws for the public.