NC Appeals Court: Not up to judges how long legislative sessions take

Common Cause had challenged a quick 2016 session over separation of powers, saying it violated the people's constitutional right to weigh in.

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Court and legal
Travis Fain
, WRAL statehouse reporter
RALEIGH, N.C. — A unanimous and bipartisan trio from the North Carolina Court of Appeals rejected a legal challenge Tuesday against the General Assembly's surprise 2016 session, saying it's not up to the courts how long these things must take.

Common Cause, a left-leaning group that has challenged a number of decisions made by the legislature's Republican majority in recent years, argued that the special session's speed violated the people's right to instruct their legislature, as laid out in the state constitution.

The General Assembly, coming off a special session to pass disaster relief in the wake of Hurricane Michael, quickly went back into session in December 2016 and, within 48 hours, passed a pair of bills taking power from incoming Gov. Roy Cooper and the State Board of Education, granting it to Republican officials instead in the wake of 2016 elections that flipped offices between the Republicans and Democrats.

"Since 1940, this is the first extra session in which the General Assembly chose not to announce in advance the subject matter of the laws they would consider during the session," Judge Richard Dietz wrote a the Court of Appeals opinion released Tuesday. "Although unusual, that choice was not unlawful."

Judges Hunter Murphy and Allegra Collins concurred, and the opinion affirmed a decision made in 2018 by a three-judge-panel in state Superior Court.

Common Cause NC Executive Director Bob Phillips said in a statement that the group hasn't decided yet whether to appeal up to the state Supreme Court.

The appeals court said the judiciary must protect "open access" to law making, but "we reject the plaintiffs’ claim that our State Constitution permits the courts to wade into this legislative process and dictate how much time our General Assembly must spend contemplating legislative action."

The lawsuit targeted two bills passed in December 2016: House Bill 17, which strengthened the newly elected Republican state school superintendent's role relative to the State Board of Education and shifted university trustee appointments from Cooper to the General Assembly; and Senate Bill 4, which changed how the State Board of Elections was named, shifting many of those appointment decisions from the governor to the General Assembly.

Dietz and Murphy are Republicans on the court; Collins is a Democrat.

The elections board law was challenged in separate lawsuits and ultimately struck down as part of a wider argument over separation of powers in the wake of Cooper's 2016 win over then-Gov. Pat McCrory.


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