Raleigh, N.C. — A lawsuit filed Wednesday challenges the legality of a one-day special session the General Assembly held in December and the two laws legislators passed during that session, parts of which have already been thrown out by the courts.
Common Cause North Carolina, a nonpartisan good-government group, and 10 North Carolina residents filed the lawsuit, alleging that the session was unconstitutional because lawmakers gave citizens little advance notice they were meeting and no notice of what legislation was under consideration.
"How can citizens participate in a session that hardly has a notice of it happening? How can 9 million-plus citizens expect to have any idea what their representatives are doing? How can they register their views and participate in that process? Of course, the answer is they cannot," Bob Phillips, executive director of Common Cause, said at a news conference outside the Legislative Building.
"It is difficult to take seriously this baseless lawsuit questioning the validity of a special session when that session was called exactly the way our North Carolina Constitution requires," Senate President Pro Tem Phil Berger said. "We expect the courts will reject this hollow press stunt."
Then-Gov. Pat McCrory called the General Assembly into session on Dec. 14 to approve funding to help recover from Hurricane Matthew and mountain wildfires. After approving the aid package, legislative leaders adjourned the session and immediately called themselves into another session the next day.
During that second session, the General Assembly fast-tracked two bills and approved both within hours:
- House Bill 17 required cabinet secretaries to undergo Senate confirmation, drastically cut the number of political appointees in a governor's administration and shifted some oversight of public schools from the State Board of Education to the elected superintendent of public instruction.
- Senate Bill 4 combined the State Board of Elections and the State Ethics Commission and evenly divided all state and local elections boards between Democratic and Republican members, ending the tradition of giving a majority on the boards to the party of the governor.
"These were complex, carefully thought-out bills that required weeks to prepare. These bills were prepared in secret," said Burton Craige, an attorney for the plaintiffs in the lawsuit. "(Lawmakers) knew what was coming. They knew, but the people who didn't know were the people of North Carolina."
Article I, Section 12 of the state constitution says citizens have the right to "instruct their representatives" on how to handle matters before the legislature. Phillips, Craige and others said the speed of the Dec. 15 special session deprived North Carolinians of that right.
"The process was undemocratic, unprecedented and unconstitutional," Craige said, noting that lawmakers provided advance notice for 25 previous special sessions dating to 1960.
Bob Morrison, a retired president of Randolph Hospital in Asheboro, said he didn't want to sue the legislature but felt he had no choice, noting rapid-fire legislating got North Carolina into trouble a year ago with House Bill 2, the since-repealed law on LGBT rights and transgender bathroom access, and would continue to do so if the General Assembly isn't reined in.
"Legislative leaders used the tragedy of a hurricane to conceal a sneak attack on the authority of a properly elected governor," Morrison said. "There was not even a pretense of proper procedure and public input."
Another plaintiff, Stella Anderson, a member of the Watauga County Board of Elections, said she wanted to tell lawmakers that their plan for bipartisanship on elections boards was a bad idea, but she had no chance to offer input based on her expertise.
"Rather than making bipartisan boards of elections, county and state, the 4-4 and the 2-2 makeup will only enhance partisan divide, and the result might very well be complete gridlock or deadlock, and if that happens, voters will be harmed," Anderson said.
If courts determine the session was held illegally, Craige said, both Senate Bill 4 and House Bill 17 would be wiped off the books.
Both laws have already been challenged in court. A three-judge panel last month ruled the combined state elections and ethics board and the cuts to political appointments to be unconstitutional after Gov. Roy Cooper sued over the provisions but upheld the cabinet confirmation process. A second three-judge panel will hear arguments in June on the power struggle between the State Board of Education and the superintendent of public instruction.
"Above all, process matters," Phillips said. "Regardless of one's political stripe or viewpoint, we the people are bonded by the faith that our lawmakers will abide by a fair process conducting the people's business. But that did not happen last December."