Late-night legislation: Crafty, sneaky, legal?
Posted January 9, 2012
Raleigh, N.C. — 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.
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.