Spate of suits aimed at curtailing controversial laws

Posted December 6, 2014

NC Flag, Legislative Building, Raleigh

— Teachers, bail bondsmen, city governments and even the governor are on the roster of those who have sued the General Assembly over the past four years, all claiming the legislature overstepped limits laid out by the state or federal constitutions. 

The outcomes of those and other cases will affect everything from how North Carolinians vote to how tax dollars can be spent on education to who will have the final say on cleaning up coal ash pits across the state. 

"My sense is ... there is significantly more litigation challenging actions of the General Assembly over the past two to four years than at any other time in recent history," said Eddie Speas, a lawyer who worked for the Attorney General's Office for 28 years, including time heading the special litigation section in charge of defending constitutional claims, and four years as general counsel for former Gov. Bev Perdue.

Pat McCrory When a governor sues the state Speas cautioned that neither he nor anyone else has done a count of the various constitutional claims brought against the state over the years. Legal observers say the raw number of lawsuits brought against the state wouldn't tell a complete story anyway because some of those would be minor spats over ministerial matters.

But Speas and some others, mainly Democrats or representatives of groups pushing back against policies put forward by the Republican-led General Assembly, say there has been an uptick in cases involving sweeping matters of constitutional rights for North Carolina's nearly 10 million citizens. 

"There are substantially more of these type of cases than we had 10 years ago," said Grayson Kelley, chief deputy attorney general.

Kelley works for Attorney General Roy Cooper, a Democrat who is widely expected to run for governor in 2016. 

Rep. Paul Stam, R-Wake, contends these cases are merely the latest in a cycle that runs all the way back to days sandwiched between the end of the Revolutionary War and the ratification of the U.S. Constitution. 

"I sued Gov. (Jim) Hunt twice back in the early 1980s," Stam said, referencing cases that revolved around state-funded access to abortion.

Stam said he was confident North Carolina's law would be upheld in cases pending before federal and state appellate courts. In the meantime, he said, it's not hard to trip through North Carolina's legal history to find examples of those outside of government pushing back against those in the legislature.

"None of this is new," he said.

Political, social controversies drive lawsuits

To be sure, North Carolina gets sued – a lot. A report by the Attorney General's Office submitted to lawmakers in October shows dozens of cases making constitutional claims. The majority of those fall into few easily recognized categories: felons trying to regain their rights to own firearms, property owners claiming state highway planning is taking their land without compensating them for it and a bucket of cases that claims the one state agency or another is throwing its weight around in an unconstitutional manner.

Leaving those more mundane cases aside, North Carolina has found itself defending newly passed laws between 15 and 20 times over the past four years, depending on how the cases are counted. North Carolina has lost some of those, as when a group of bail bondsmen sued to keep the lawmakers from granting a monopoly for continuing education classes in their industry.

Others are still making their way through the appellate courts. North Carolina's law clearing the way for a "Choose Life" license plate but not allowing a plate for abortion rights supporters, is currently pending before the U.S. Supreme Court. The 4th U.S. Circuit Court of Appeals has ruled against the state in that case. 

"We're going to win most of those," Stam said. 

Although they are not yet final victories, the state has been most successful defending changes to its voting laws and legislative districts. 

"There are some issues that are so politically and socially controversial, they will generate ligation," Kelly said. 

For example, a 2013 state law that allowed state tax dollars to fund scholarships for low-income students to attend private schools touched on a well-worn battle line with passionate advocates on both sides. That case is heading to arguments before the state Supreme Court after a Superior Court judge ordered the scholarship payments stopped.

Such a voucher program would have had a hard time making its way through a Democratically-held General Assembly. But in 2010, Republicans won majorities in the state House and Senate. Two years later, Gov. Pat McCrory won the governor's mansion, marking the first time in more than a century the GOP completely controlled North Carolina's political apparatus. Given 100 years of pent-up Republican frustrations and the inability of progressives and their legislative allies to block legislation, it's not surprising to see a spike in litigation.

"If you're out of power, there's a tendency to look to the courts to resolve issues that have turned out unfavorably for you legislatively," said Bob Orr, a lawyer and former Supreme Court justice who at one time headed the North Carolina Institute for Constitutional Law, a conservative legal advocacy group. 

From 2004 to 2011, the institute filed suit on a number of tax and economic development issues. They included an effort to stop the North Carolina Education Lottery and incentives granted to companies such as Google. 

Orr, a Republican who at one point ran for governor, said the state may be going through an uptick in litigation, but that has more to do with politics than the merits of the laws in question. 

"Numerically, there are probably more cases, but that may be product of the political circumstances," he said. 

Rep. Rick Glazier, D-Cumberland, acknowledges that political turnabout has driven some litigation, but says there's more to it.  

"In almost every one of these cases, the legislature was warned on the floor (of the House) with case law and good argument and data that they were getting ready to pass an unconstitutional bill," Glazier said.

For example, a decade ago, South Carolina had passed a similar "Choose Life" license plate bill to the North Carolina legislation now before the U.S. Supreme Court. That measure was struck down by the 4th Circuit.

Stam argues that North Carolina lawmakers knew they were likely headed to the Supreme Court, saying the 4th Circuit decision on South Carolina stood at odds with rulings from other parts of the country. 

Glazier argues there is a difference between cases in the past, which largely tackled how the law applied to a individual or group, and the recent spate of lawsuits, which have sought to invalidate state laws before they take effect. 

"This has been a pretty consistent theme for a couple of years now," he said. "At some point, you have to remember we move from campaigning to governing." 

Costs are unclear 

In years past, Kelley said, it wasn't unusual for lawmakers to consult with the Attorney General on laws that might have pushed constitutional boundaries. 

"More recent General Assemblies have relied more on their own in-house lawyers," he said.

Those laws have made their way to the AG's office through litigation, and those suits have a costs, although it's unclear what that might be. 

"It has been a challenge for us to provide the legal resources for us to handle this many significant cases where the General Assembly has reduced the number of lawyers on our staff fairly significantly in recent years," Kelly said.

The Department of Justice has funding for 30 fewer lawyers in 2014 than it had five years ago. In 2013 and 2014 budget requests, the DOJ asked for more staffing to tackle complex litigation, but lawmakers turned the agency down. 

The result, said Kelly, is that the department has had to pull less experienced lawyers from other DOJ divisions into help staff complex litigation cases. The cases are in good hands, he said, but it puts pressure on the department.

Unlike a private law firm, lawyers in the Attorney General's Office are salaried, not paid based on how many hours they work, so the price of litigation doesn't necessarily show up in state budget lines.

That only happens when the department hires outside counsel to help with a case when other state leaders step into a fray. For example, Cooper recently decided that federal court decisions striking down state gay marriage bans left North Carolina with few legal options. But a recently passed state law gives the state House speaker and Senate president pro tem standing to step in on behalf of North Carolina, which they have done.

"I think we owe it to the voters who did that to stand up for the law," said Rep. Tim Moore, R-Cleveland, the Republican speaker-designee for 2015.

It now appears a clash of federal appellate court decisions will bring the issue to the U.S. Supreme Court before long. 

The next twist in North Carolina's battles over complex litigation will take shape next week when a panel of three Superior Court judges hears the city of Boone's lawsuit against the state. City officials say they were improperly stripped of extraterritorial jurisdiction, which gives cities the ability to manage development outside their borders. 

It will be the first case to be held under a new law that says all challenges to the constitutionality of a state law must be heard by a three-judge panel in Wake County rather than by a single judge in the county where a suit was filed. The 2014 law was aimed at cutting down on judge-shopping – the practice of looking for a judge viewed as predisposed to the plaintiff's position – and passed despite opposition form the North Carolina Bar Association. Critics point out that lawmakers pushed through the three-judge panel law after individual judges handed down a number of decisions critical of recently passed laws.

There is some question whether many of those three-judge Superior Court panels will be needed going forward. 

"There are a number of matter that we're monitoring, ranging form privacy issues to women's rights," said Christopher Brook, legal director for the North Carolina chapter of the American Civil Liberties Union, which is involved in several of the constitutional lawsuits. 

As with others who have been involved in these recent suits, Brook said they were spurred because issues like abortion and school vouchers are hot-button topics that draw passion – and litigation – from all sides of those debates. 

In a recent interview, Moore said that the legislature had "dealt with a lot of those issues over the past four years. We have righted the ship and dealt with what I had considered to have been a hard left turn the state had taken in the years before the Republicans came to majority."

During the next two years, he predicted, there would be less of an appetite for dealing with the hot-button issues that had spurred many of the recent lawsuits.


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  • miseem Dec 9, 2014

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    How about the right to enjoy the benefits of being a US citizen without having to pay the taxes that provide those benefits. Or the right to deprive others of rights based on your opinion (think abortion rights, voting rights, marriage rights) .

  • Terry Watts Dec 9, 2014
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    Name a single Right of which you have been "stripped". Please. Just one.

  • Terry Watts Dec 9, 2014
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    Man! I gotta get some of what you're smoking!

  • disgusted2010 Dec 9, 2014

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    The progressives you speak of are no longer progressive. They passed progressiveism years ago Those who used to be called by this term are today anarchists intent on destroying the US. Those intent on upholding criminals, stripping honest citizens of their rights, taxing working people to death to support those who never have and never will work are not progressive. The cycle of one party or the other being in control has just about reached the point of revolution as it does throughout history. People in the US can no longer pay taxes at the rate that liberals/progressives demand while being systematically stripped of their rights. Perhaps you are OK with being the subject of a government, but we are not.

  • heelhawk Dec 8, 2014

    Just like the GOP to claim to be the party of fiscal responsibility and then be the cause of all of these lawsuits which will cost the state hundreds of millions of taxpayer dollars.

  • miseem Dec 8, 2014

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    Seems like you are having trouble following your own advice. Obama won election twice, but you can't seem to get over that. But you don't see that as being a little hypocritical in your outlook, do you?

  • Gary_too Dec 8, 2014

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    That was your Messiah that spit out that garbage, not me.

  • Grand Union Dec 8, 2014

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    And when the Pendulum swings back to the progressive future as it always has and always will, shall you be so keen on "getting over it"?

  • miseem Dec 8, 2014

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    Are you referring to the death penalty in the judicial system? Because obviously, you are not referring to the abortion rights groups. Otherwise, the courts would be clogged with hundreds of thousands of women and thousands of doctors charged with murder. So clearly, an abortion is not murder according to our laws. Just according to your opinion. Which fortunately does not carry any legal or scientific authority.

  • Christopher Curley Dec 8, 2014
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    Correct, but that is due in some part to redistricting can be classified as a gerrymander. Since Locke, a key to democracy is the right to appeal laws in the courts. Where a group of people believe themselves not only unrepresented by institutionally unable to be represented, the courts are the place they should turn.