Special session arguments focus on notice, instruction
By GARY D. ROBERTSON
Feb. 21, 2018
RALEIGH, N.C. (AP) — Arguments over the legitimacy of a December 2016 special legislative session called by North Carolina Republicans centered Wednesday on what "adequate notice" and the constitutional right for state residents to "instruct" their legislators mean.
A panel of three Superior Court judges heard from lawyers for government reform group Common Cause and 10 state residents who argue the session was illegal. The judges also heard from state attorneys who said GOP legislative leaders followed the rules in calling themselves to work.
The panel didn't immediately rule after a two-hour hearing on a request to declare the session unconstitutional, voiding the session's activities, or another motion to uphold its legality. The resulting decision is likely to be appealed.
The laws approved by the GOP-controlled General Assembly during that three-day session tilted the balance of power toward the legislative branch and away from Democratic Gov. Roy Cooper just two weeks before he was sworn in. The approved legislation led to separate lawsuits by Cooper, who had just narrowly defeated GOP Gov. Pat McCrory.
The lawsuit before the judges Wednesday takes a different approach by focusing on the legislative process that created the laws.
The session began the same day a separate "extra" session on Hurricane Matthew relief called by McCrory ended. The plaintiffs said GOP legislators deliberately hid their intentions by giving just two hours' notice before starting the session, even though requests seeking signatures necessary from House and Senate members to call the session were dated a day or two earlier.
Burton Craige, a lawyer for those who sued, told the judges the legislators' actions crushed his clients' rights to due process. He also said it blocked their right to "instruct their representatives," which has been enshrined in the state constitution since 1776.
The legislative leaders "gave citizens no advance notice that the ... session would be called and no notice of the subjects that would be addressed," Craige said. "What defendants did was undemocratic, unprecedented and unconstitutional."
But the judges pressed Craige to estimate how much time would be needed during an era of electronic communications and easy travel for a sufficient amount of notice. Craige avoided a definite time but said the case was an extreme situation that was plainly unlawful.
During questions, Superior Court Judge Marty McGee suggested the legislature may not have to explain publicly why it's returning to Raleigh for a special session. While the constitution requires the governor to describe the purpose for calling the General Assembly back, such language is absent from the provision in the constitution allowing the legislature to reconvene itself.
"Where would I point to to say there's clear guidance here that notice has to be given what they're going to do, and how long does that notice have to be?" McGee asked.
The laws approved during the session subjected Cooper's Cabinet to Senate confirmation, made appeals court elections officially partisan races and moved powers from the State Board of Education to the state schools superintendent. Other changes shifting control over administering elections and reducing the number of employees Cooper could hire compared to McCrory already were struck down due to Cooper's own litigation.
Hundreds demonstrated loudly at the Legislative Building against GOP actions over the three-day session, leading to dozens of arrests. The protests and media attention showed the public had enough notice about the session and to learn about the proposed legislation, according to a legal brief filed for Senate leader Phil Berger, House Speaker Tim Moore and Lt. Gov. Dan Forest, the Senate's presiding officer.
Matthew Tulchin, a special deputy attorney general representing the legislative leaders, told the judges the plaintiffs are seeking an extreme reading of the constitutional language.
Tulchin said those who sued want the right to instruct representatives to mean every citizen "has a right to have advance notice of legislative sessions, the right to review legislation that's presented and has the right to communicate with their legislators before ... bills are enacted."
But Superior Court Judge Wayland Sermons told Tulchin the "instruct" language is in the constitution for a reason: "If it doesn't mean that, it has to have some purpose." Tulchin responded that citizens also can "instruct their representatives" by whether they vote for them at the ballot box.