As attorney general, GOP clash, spending on private lawyers skyrockets
Posted January 25, 2016
Raleigh, N.C. — Years before he announced it officially, Attorney General Roy Cooper's nascent campaign for governor was the worst-kept secret in North Carolina politics.
The Democrat's open criticism of the Republican legislature's policies riled the right, fueling skepticism among GOP leaders about Cooper's ability to defend the state against a slew of lawsuits challenging their new measures.
That distrust, whether real or perceived, has cost taxpayers millions.
Since Republicans took the helm of the North Carolina legislature in 2011, financial data show state lawmakers have racked up almost $7 million in legal bills through October 2015. Gov. Pat McCrory shelled out another $1.3 million for private lawyers in the years since he was elected in 2013, half of which was tied up in a dispute with fellow Republicans.
The amount dwarfs spending on outside counsel by any governor or legislature in the last 15 years.
Cooper's top deputies say Department of Justice lawyers are perfectly capable of defending the state despite the attorney general's views and that they continue to do so despite the unwanted legal help.
Yet, GOP leaders in the House and the Senate say the payments were necessary to properly defend policies that continue to face legal challenges from activist groups.
"It's important to understand that, in many instances, the money being spent is being spent to defend things that were part of an agenda that the voters approved," Senate President Pro Tem Phil Berger said. "These are things people have elected legislators to do, and they've been done."
But observers say the process for defending that agenda has seen a significant change in the last five years.
"It really is a fundamental question about how government should function: Who should perform legal responsibilities for the state?" said Eddie Speas, who worked in the Attorney General's Office for about 30 years and served as general counsel in Democratic Gov. Bev Perdue's administration. "Historically, that's been the attorney general."
Speaking for the king
North Carolina, like any other state that interacts with millions of people, spends a lot of time in civil court.
When the state is sued, it's usually the responsibility of the Attorney General's Office – working with general counsel from the legislature, executive agencies or the Governor's Office – to defend its laws, regulations and actions.
Speas said the state normally hires outside attorneys when there are clear conflicts of interest or in cases where the Attorney General's Office has no expertise, such as intellectual property disputes.
"The common law was clearly that the attorney general speaks for the king on all legal matters, and I think the statutes for a long time reflected that proposition," Speas said. "But that seems to be changing."
When it was under control of Democrats, the General Assembly occasionally shelled out for private counsel. In 2006, for example, lawmakers paid out about $180,000 to represent the staff of Democratic House Speaker Jim Black, who at the time was embroiled in a criminal corruption scandal that landed him in federal prison.
But in the last five years, state lawmakers paid about 17 times more for outside legal counsel than they did in the preceding 10 years, according to November data provided by General Assembly Financial Services. Those costs peaked in 2015, when legislative leaders paid law firms about $2.2 million – with more than $800,000 still due as of early November.
Legislators hired their own lawyers when Cooper announced in 2014 he would no longer defend a constitutional ban on gay marriage, pointing to a federal appeals court that ruled a similar measure in Virginia violated the U.S. Constitution. The U.S. Supreme Court a year later reiterated such bans on gay marriage are unconstitutional.
Lawmakers spent $102,000 on that case as of early 2016.
But the legislature has also hired its own lawyers at taxpayer expense to work alongside Cooper's office on issues such as school vouchers, the state's redrawn election districts and a tougher voting law passed in 2013.
That last measure, which includes requirements for voters to present photo identification at the polls, prompted McCrory to hire his own private lawyer as well.
Speas, whose firm is involved in the voter ID case and several others against the state, said he was unable to recall a similar case with so many attorneys.
"It does seem to me that the case is overstaffed with lawyers at public expense," he said.
Because of the complexity of the redistricting case, Berger, R-Rockingham, said the legislature sought "nationally recognized experts" to help defend against lawsuits on the federal and state level. But he attributed much of the rising cost of private lawyers to repeated public comments from Cooper, who has expressed his opposition to the Republican legislature's agenda.
"The attorney general has, in many instances, disparaged and criticized the policies adopted by the General Assembly," Berger said. "It's difficult to feel comfortable going into court with a lawyer who has indicated he's more sympathetic to the opposing side."
Republican leaders pointed to a message from Cooper's campaign just last week encouraging supporters to sign a petition against "politically motivated voting laws."
"The attorney general claims it is his duty to defend the state, yet campaigns against the very laws he is 'defending' in court," Mollie Young, a spokeswoman for House Speaker Tim Moore, said in a statement.
But Grayson Kelley, the state Justice Department's chief deputy attorney general, calls the legislature's spending on private attorneys wasteful and says agency lawyers are fully capable of handling the cases on their own.
"The taxpayers provide a substantial amount of money for this office to represent the state's legal interest," Kelley said. "Prior to this legislature, lawmakers and the governor have been satisfied with us doing our jobs."
As officers of the court, he said, his agency's lawyers have an ethical responsibility to represent their clients effectively regardless of personal and political opinions – just as they're doing in 15 major constitutional lawsuits with or without outside attorneys.
"Our lawyers do their jobs. They come to work every day to do that," Kelley said. "They want to win their cases as much as those in private practice do."
Governor spending also increases
In several cases, the governor has followed the legislature's lead on employing private attorneys.
Since he took office in 2013, McCrory's office has spent more than $1.3 million on legal services, according to a review of spending data through October provided by the Office of the State Controller. That's compared to just $56,000 spent in prior administrations dating to 2001.
The South Carolina firm of lawyer Butch Bowers billed the governor's office $678,000 through October for work on the voter ID case.
McCrory also sought private lawyers at a cost of about $5,000 so far to bypass the Attorney General's Office and augment his own full-time general counsel, Bob Stephens, in a public records lawsuit filed by WRAL News, The News & Observer and other groups (Full disclosure: WRAL Reporter Tyler Dukes is a participant in ongoing mediation in this suit).
In a statement Monday morning, McCrory spokesperson Graham Wilson defended the use of outside lawyers, saying Cooper's statements made them a necessity.
"The attorney general has compromised his ability to represent our state with his continued decision to put politics over the job he was elected to do," Wilson said. "As long as that continues, the governor will take the appropriate steps to defend the State of North Carolina."
In other cases, however, the reasons for hiring private counsel are more straightforward, with precedent for both Democrats and Republicans.
In 2005, then-Gov. Mike Easley, a Democrat, paid about $40,000 to the Womble, Carlyle, Sandridge and Rice law firm over the course of a few months for representation in a dispute over a land deal in Currituck County. In that case, Cooper was separately representing the Council of State.
The firm of Robinson, Bradshaw and Hinson worked on McCrory's lawsuit against legislative leaders Berger and Moore, fellow Republicans, in a dispute over who has the right to make appointments to the new Coal Ash Management Commission. At a cost of more than $500,000 through October, the Governor's Office needed outside counsel because the Attorney General's Office was obligated to defend the law passed by the legislature – and by proxy, the commission itself.
McCrory was joined in the suit by former governors Jim Hunt, a Democrat, and Jim Martin, a Republican.
Even in this case, however, the legislature has insisted on its own counsel in addition to attorneys from the Department of Justice.
"We could have represented the legislature and the Coal Ash Commission in that case," Kelley said.
Jon Guze, director of legal studies for the conservative John Locke Foundation, said that, while it's clear the separation between the attorney general and the rest of the Republican leadership is "pretty awkward," the ideological differences are bound to happen given that the positions are all independently elected. The spending is higher than he'd like to see, but he said the schism at the core of the issue may have benefits in the short term.
"We could get some waste. On the other hand, having different points of view in different parts of the government is a good thing because there's checks and balances," Guze said. "It gives the voters more options."
Bob Hall, executive director of the government watchdog group Democracy North Carolina, said Cooper's past statements give the Republican leadership "sound bites to justify what they're doing." But he said the question both the legislature and the governor need to answer is whether Justice Department lawyers are actually doing their jobs.
"It does seem like so much of it is viewed through a partisan lens, that we've got to bring our cannons to the walls of the ship and fire away, and we can't trust the established tools to do the job for us," Hall said.
For now, he said, North Carolinians are paying the price of that distrust. With spending on the rise, he said, the practice needs more examination to separate real conflicts of interest from public statements advocating for one issue or another.
"Lawyers do that a lot," Hall said, "and they win cases."
Partisan split had smaller effect on past leaders
When voters elected both McCrory and Cooper in 2012, it marked the first time a Republican governor served alongside a Democratic attorney general since the two-term administration of Martin, starting in 1985.
"Oftentimes we disagreed, but we never had anything but mutual respect for each other," said Andy Vanore, who served as chief deputy under several elected attorneys general, including Martin's counterpart, Lacy Thornburg. "That's what is best for both offices and for the people of North Carolina."
Several times during his administration, Martin pursued litigation over separation of powers issues, which Vanore said all "involved what he believed as governor were necessary to protect the authority and power of the governor."
"Not his authority personally, but the office," Vanore said.
But he said it was very rare for Martin to bypass the attorney general unless there was a clear conflict.
It's rare for other states as well.
According to a 2013 legal memo from the North Carolina Institute for Constitutional Law, North Carolina is among about a third of states to allow alternatives to the attorney general in legal representation, and the state is one of the few that grants that capability to the governor and legislative leadership.
In the last few years, Kelley said, there's been a different attitude toward the Attorney General's Office from the state's Republican leadership.
"From the beginning of the McCrory administration, there seemed to be a belief that there was some type of conflict in certain cases which required the governor to hire his own private lawyers," Kelley said. "We tried to explain our job is not directly related to whatever personal or political views this attorney general has – or any attorney general has."
Although the party split between McCrory and Cooper may be similar to the divide during the Martin administration, the comparison doesn't exactly line up: Thornburg never challenged the Republican governor in an election year.
"I don't recall a situation like this ever occurring, where a sitting attorney general is running against a sitting governor," Vanore said.
GOP leaders have repeatedly pointed to that conflict as justification for hiring private attorneys to look over Cooper's shoulder.
"We just want him to do the job he has," Berger said. "It seems like he's more interested in applying for the job he wants to have."
With the office of the attorney general up for grabs this year, Berger said it's hard to say whether the state will see more spending on private counsel in the future. Judging by the ongoing legal challenges, however, he expects the tide of lawsuits is a "wave we've not seen crest."
Guze said it's unlikely increased spending on private lawyers will be sustainable in the long run, "otherwise the system isn't going to work." But come November, he said, it will likely be one more issue where voters will get an opportunity to decide who's right and who's wrong.
"Whatever benefit it has between the rough and tumble of the democratic process, it is expensive," Guze said. "North Carolinians are pretty sensitive about taxpayer money and will probably find ways to curb this."