Three-judge panel asked to invalidate December 2016 special session

Correction: This story was updated Feb. 23 to correct the spelling of Special Deputy Attorney General Matthew Tulchin.

They are four words among many in the state constitution. But their meaning could invalidate all laws passed in a 2016 special session of the General Assembly if a three-judge Superior Court panel decides they enshrine fundamental right predating the American Revolution.

Lawyers for Republican legislative leaders who are defendants in a lawsuit brought by Common Cause North Carolina and 10 citizens say the constitutional phrase “to instruct their representatives” is a legally obsolete historical artifact. They insist it doesn’t mean what plaintiffs’ lawyers claim — defendants had a constitutional obligation to give sufficient public notice of the times and purposes of a special session.

Both sides argued their case Wednesday, Feb. 21, that the judges should summarily dismiss the case in their favor. The hearing was held at Campbell Law School in downtown Raleigh before an audience of law students.

At stake is the possible revocation of House Bill 17 and Senate Bill 4. The General Assembly went into session Dec. 14, 2016, and passed the bills Dec. 16 in the fourth of five special sessions that year. Gov. Roy Cooper and the State Board of Education have filed lawsuits against those bills.

The three-judge panel hearing the case comprises Judge Wayland Sermons, a registered Democrat whose multicounty district includes Beaufort County, where he lives, and registered Republican Judges Martin McGee of Cabarrus County, and W. Todd Pomeroy, whose district covers Cleveland and Lincoln counties.

All three judges quizzed the opposing lawyers what they believed “to instruct their representatives” means, but it didn’t appear the answers satisfied them.

Plaintiffs’ lawyer Burton Craige said the language was in use in North Carolina legal documents before the Revolutionary War, and has been included in versions of the state constitution since 1776.

Craige said it should be interpreted to mean legislators have a constitutional obligation to meet citizens’ constitutional rights to have meaningful advance notice of when legislative sessions are to commence, and what bills will be taken up. Asked by Sermons what meaningful meant, Craige didn’t have an answer. He suggested the court should create some time element without defining a specific limit.

Special Deputy Attorney General Matthew Tulchin represents Republican Lt. Gov. Dan Forest, Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, the defendants. He said the plaintiffs were inventing a constitutional right that is not spelled out anywhere in the constitution, and offered two alternative explanations.

He called the language a function of the times in which it was enacted. It enshrined a right for residents of the new state to tell their representatives to oppose a powerful, overreaching federal government. He also said it was included to preserve the right of citizens to remove representatives they opposed at the next election.

Tulich also noted the difference in two constitutional provisions involving special sessions. When the governor calls them, Article III says the governor must state “the purpose or purposes for which they are thus convened.” By contrast, Article II merely says the legislature can call a session anytime three-fifths of the members of the House and the Senate request one. No reason required.

The judges huddled briefly at the conclusion of the two-hour hearing. They said they hoped to render a ruling quickly, but didn’t suggest a target date.

Both sides asked for a summary judgment, declaring instant victory without the need to proceed to a full-blown, fact-gathering trial with witnesses. The verdict could — and many expect would — be appealed.

“What defendants did was undemocratic, unprecedented, and unconstitutional,” Craige said. Unlike the previous 30 special sessions dating to 1940, the defendants didn’t give citizens advance notice a special session would be held, or advise them of legislation to be considered. He said they radically altered normal legislative rules for conducting business.

“Those bills fundamentally changed the structure of state government, and stripped the new governor of his executive authority,” Craige said.

H.B. 17 removed power from the governor’s office to make appointments to boards of trustees at UNC campuses, reduced the number of gubernatorial political appointments, required Cabinet nominees to get Senate confirmation, and transferred authority to the state Department of Public Instruction and its elected superintendent from the appointed State Board of Education.

The most controversial provision of S.B. 4 merged the state elections board and ethics commission. It’s been challenged in court several times, and it’s still unresolved. The bill also changed Supreme Court and Court of Appeals elections from nonpartisan to partisan.

“This was legislation by ambush. This was a premeditated assault on democracy,” Craige said.

The plaintiffs are unhappy with two laws, and the process used to enact them, Tulchin countered. That’s a policy dispute rather than a legal one. The court would violate the constitutional separation-of-powers principle if it invalidated the laws, telling the General Assembly how to conduct its business.

He refuted Craige’s contention there was no advance notice of session business. Lawmakers knew about the bills 44 hours before voting. The bills were posted on legislative websites when introduced, and the record shows citizens not only knew about the measures, but viewed them there.

Hundreds of people showed up at the General Assembly to protest the special session. “They expressed their viewpoints in loud enough terms to disrupt the session,” Tulchin said.

Pomeroy noted it is not unusual for legislation to be marked up many times before it becomes law, and amendments can be inserted throughout the process. He wondered if lawmakers had to notify citizens for every one of those actions if legislative business might grind to a halt.

Tulchin said bills frequently are amended in the flurry of activity to beat the end of legislative sessions, and even lawmakers don’t receive notice when that happens.

He dismissed the plaintiffs’ complaint many normal rules of legislative operation were changed for the special session. The constitution gives the General Assembly power to establish procedural rules, subject to revisions of its choosing, at the outset of any new session, he said.