Common Cause and 10 North Carolina residents failed to persuade a three-judge panel that state lawmakers held an illegal meeting in December 2016 when the General Assembly shifted long-held power from the governor's office to legislators.
The judges issued their ruling on Tuesday with a nod to the difference in modern lawmaking and the circumstances of doing the business of the state more than two centuries ago.
In April 2017, Common Cause and others accused the lieutenant governor and legislative leaders of violating the state constitution when they hastily called a meeting in December 2016, weeks before Republican Gov. Pat McCrory was to turn over leadership of the executive branch to Democratic Gov. Roy Cooper.
In a special session that was open and closed several times with little notice to the public about what would be on the agenda, the Republican-led General Assembly "took less than 48 hours to fundamentally alter" the state's system of government, the challengers contended.
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McCrory, who was in the last weeks of his term, 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.
After ending the session the governor called, legislators opened another.
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. Part of that plan has since been overturned in state court.
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.”
In their ruling issued Tuesday, the three Superior Court judges — Wayland Sermons of Hyde County, Martin B. McGee of Cabarrus County and Todd Pomeroy of Cleveland County — said the challengers had failed to show that their right to instruct their representatives had been violated.
Lawmakers had the three-fifths vote necessary to hold the special sessions, the judges found. They also stated that no law or regulation explicitly describes a legislative procedure to be followed that ensures North Carolina citizens have been able to instruct their lawmakers.
When the state constitution was written, the judges pointed out, there was no internet, no 24-hour news cycle or real-time reporting. North Carolina lawmakers met in Bath, Edenton and New Bern, and news from their meetings was carried by letter and horseback to other towns.
"This court recognizes that the right to instruct, from a historical context, is a right of general nature, having evolved from the days when early citizens of this state went months without news of their state's issues that might have been debated in Bath, Edenton, New Bern, and finally Raleigh," the judges stated in their ruling. "In that era, the deliberative process necessarily required restraint in 'on the spot' enactment of new laws, the populate having just emerged victorious from a revolution prompted exactly by such edicts being delivered by the British government and its army and proprietors. The times in which we live now greatly reduce those problems encountered long ago with electronic access and notices and news reporting on an hourly or even real time basis. If you are remotely interested in what is going on in Raleigh, it is as available as the time or weather forecast on one's device."
Phillips, with Common Cause, said that the 2016 session was unlike any of the preceding 30 extra sessions dating back to 1960.
“We are disappointed in this ruling, as should anyone be who believes in transparency and accountability in government,” he said. “We will review our options to appeal the decision. Regardless, we will continue to stand up for the right of North Carolinians to instruct their lawmakers and to fully participate in the legislative process. Sadly, we continue to see the legislature’s reckless disregard for transparency in the way a narrow group of lawmakers has crafted this year’s state budget behind closed doors and without opportunity for public input.”