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Late-night legislation: Crafty, sneaky, legal?

Posted January 9, 2012

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— Legislation stopping a teachers' group from collecting dues via payroll deduction that was passed by the North Carolina General Assembly in a controversial midnight session last week was put on hold Monday.

Superior Court Judge Paul Gessner granted the North Carolina Association of Educators' request for a temporary restraining order on Senate Bill 727 on the grounds that it would cause "irreparable harm" to the organization. 

Gessner ruled that the complaint filed by the NCAE had merit and that there is some question as to whether the General Assembly had the authority to call an unplanned early-morning session last Wednesday to override the governor's veto and make the bill a law.

Former state Supreme Court Justice Bob Orr, who represents the NCAE, said the midnight session was unconstitutional.

"(It) violated the constitution, and therefore, the session was not only invalid, but also the legislation enacted ... was void," Orr said.

On Jan. 4, Gov. Bev Perdue called a special legislative session to allow the Republican majority to try to override her veto of the Racial Justice Act repeal. That override wasn't successful, but, later that night, Republicans announced a 12:45 a.m. session to override another veto.

That override – of SB 727 – passed 69-45. Several Democrats were absent for the vote.

Thom Tillis Was late-night veto override constitutional?

Rep. Rick Glazier, a Democrat and law professor in Fayetteville, said that lawmakers should have gone home after voting on the Racial Justice Act repeal.

"Any action that was taken after that, since it was a specially called session by the governor, is fundamentally unconstitutional," he said. "When you're called back to do an override, (the session) is limited to the issue of the override." 

The North Carolina Institute for Constitutional Law, however, said that, because Republican leaders used a resolution – not a bill – to call the late-night session, the action was valid and lawful.

"The constitutional limit that the General Assembly could only consider the bill that was in the notice from the governor (doesn't) apply to a resolution," said NCICL Executive Director Jeannette Doran. "It was probably a little crafty, a little sneaky, but it was constitutional."

An attorney for Speaker Thom Tillis said in a statement that lawmakers complied fully with the constitution, state statutes and House rules.

Orr and the NCAE disagree. Orr, a Republican, said his personal political views do not change the facts of the case.

"The state Constitution doesn't mention Democrat or Republican, it doesn't mention liberal or conservative," he said. "It is what it is and it says what it says." 

The teachers' group also argued that SB 727 is discriminatory because it specifically singles out the group and that the General Assembly should act on veto overrides within a timely manner, which they contend did not happen in this case.

Gessner did not rule directly on those issues.

The governor has said that the bill is an act of retaliation against teachers.

"The Republicans in the General Assembly are punishing public school teachers for opposing the deep and unnecessary education cuts that Republicans passed last year over my veto," Perdue said in a statement. "Expressing your views about the importance of education and standing up for your schools is the right thing to do and should not be punished."

The temporary restraining order allows the NCAE to continue collecting voluntary dues from members via payroll deduction. The group acted with urgency to ensure that members' January paychecks, issued at the end of the month, would not be affected.

"We have literally been on a full roll through the weekend trying to get this matter before the court," Orr said.

A preliminary injunction hearing on the matter is likely within the next two weeks, he said.

103 Comments

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  • ladyblue Jan 11, 1:18 p.m.

    I think that they learned this from the Obasma administration, led by Reid and Pelosi during the health care laws.......

  • fasote Jan 10, 4:56 p.m.

    Wake up people this is the precise and exact tactic that the democrats have used to control NC for the past 150 years - most recent big one was the NC Lottery debacle. Remember the old goose and gander rule applies to legally blonde Bev as well.

  • Come On_Seriously Jan 10, 4:30 p.m.

    Its slimeball tactics like this that has resulted in the gop-majority General Assembly to drop from 29% approval to 16% approval. They weren't that hot to begin with, and are dropping fast. http://www.newsobserver.com/2012/01/10/1766155/voters-dislike-midnight-legislative.html

    The most common comment on here is how some conservatives are happy that the Rs managed this because the Dems 'did it first.' Apparently, the gop rates high among children.

    As for the argument "As I stated earlier, all these organizations ran campaigns on ISSUES that impacted their membership. They did not fund attack ads against individual politicans or parties."

    It does not matter a lick. Free speech is protected in NC and the US. Legislators cannot use an arbitrary law to single out one group because the leaders do not agree with that group's message.

    Kudos to all the conservatives who don't think the midnight action is appropriate for either party.

  • Plenty Coups Jan 10, 4:07 p.m.

    "I do not want them touching my paycheck. Why would teachers?"

    They want the option to decide for themselves. Republicans wanted to take that option away as political payback.

  • Plenty Coups Jan 10, 4:06 p.m.

    "As I stated earlier, all these organizations ran campaigns on ISSUES that impacted their membership. They did not fund attack ads against individual politicans or parties."

    Are you kidding??? Your playing semantic games. Any ad counter to what one party wants is "negative". NCAE sent out mailers criticizing democrats that voted with the republicans! What makes one ad "friendly" and one "nasty"? Is it simply your bias? The Chamber of Commerce regularly endorses conservative candidates. Blue Cross funded and released multiple commercials aimed at killing Obamacare. (Guess which political party was targeted?)The NC realtors took out a full page ad in the News and Observer.

    Chamber endorsements:
    http://www.uschamber.com/press/releases/2008/may/us-chamber-endorses-rep-walter-jones

    Blue Cross ads:
    http://voices.washingtonpost.com/health-care-reform/2009/05/by_ceci_connolly_one_week.html

    NC realtor website w/ links to sponsors of home tax
    http://www.itsabadidea.org/content/page/id/2

  • zonk Jan 10, 3:33 p.m.

    I certainly would not want my voluntary trade association dues gleaned from my check. Why would anybody ? It seems there is alot more important issues to tackle. I just do not see the issue here. I am a member of several trade associations. I do not want them touching my paycheck. Why would teachers ?

  • westernwake1 Jan 10, 3:08 p.m.

    "I don't get it. Are you telling me NC association of realtors never funds negative ads? The NC Chamber of Commerce? The NC association of home builders? Blue Cross Blue shield? The NRA? The State employees union?etc. I seem to recall the realtors spending many more millions on negative ads back in 2008 to protest a planned land transfer tax" - Plenty Coups

    As I stated earlier, all these organizations ran campaigns on ISSUES that impacted their membership. They did not fund attack ads against individual politicans or parties.

    As per the article, the North Carolina Association of Realtors tried to use friendly lobbying to court legislature members to block the transfer tax. They did not go to the districts of legislative members who wanted the tax and fund nasty attack ads.

    Once again, the difference between "lobbying" and "funding negative attacks against candidates" should be obvious. The NCAE was targeted due to their funding of negative attack ads.

  • westernwake1 Jan 10, 2:59 p.m.

    Objective Scientist - Well Stated!

    It is time that both the Republicans and Democrats started to focus on what the citizens of North Carolina are demanding rather than bowing to their corporate donors and extremist PACs. We are tired of the shenanigans in downtown Raleigh.

  • Objective Scientist Jan 10, 2:45 p.m.

    "The GOP just grabbed the moral low ground" - "By grabbing it from the other party. But, worry not, the other party will grab it back as soon as it is expedient." post by Titus Pullo

    You are exactly right... a pox on both the Republicans and the Democrats!!! This blatant partisan gamesmanship has become more and more evident over recent decades... and those who "suffer the fools" currently in our legislature are "you and me" - the electorate. We, the electorate, are more and more simply "jerked around" by our own elected officials playing political brinksmanship. We deserve better than that... but it will only change if WE give that message loud and clear during the campaigns and finally in the ballot box. Neither State nor Federal business should be done in the "dark and dead of the night" for the purpose of and in a fashion that allows a minority to "over-rule" the majority. Furthermore, we must get away from viewing an election win of even 55% to 45% as a mandate for anything!!!

  • Plenty Coups Jan 10, 2:37 p.m.

    westernwake-"This difference between "lobbying" and "funding negative attacks" should be obvious. This is also why the NCAE was targeted."

    I don't get it. Are you telling me NC association of realtors never funds negative ads? The NC Chamber of Commerce? The NC association of home builders? Blue Cross Blue shield? The NRA? The State employees union?etc. I seem to recall the realtors spending many more millions on negative ads back in 2008 to protest a planned land transfer tax.

    http://www.wral.com/news/local/politics/story/3028616/

    Blue Cross/Blue Shield, which also has state automatic deductions is constantly advocating for itself and running against "Obamacare" and other health insurance issues.

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