Legal experts split on NCAE challenge
Posted January 9, 2012 8:11 p.m. EST
Updated January 9, 2012 9:38 p.m. EST
The stage is set for a legal showdown over the constitutionality of last week’s post-midnight override of the vetoed Senate Bill 727, a bill that stops public school employees from having membership dues for teachers’ groups voluntarily deducted from their paychecks.
The late-night House vote (more on that here) was held at 12:45am, with just 90 minutes’ notice to the public and Democratic lawmakers.
At the time, Democratic opponents said the bill and the process used to override its veto would likely be found unconstitutional.
Late this afternoon, in a temporary restraining order issued in response to a complaint by NCAE, Wake County Judge Paul Gessner ruled NCAE “has shown a likelihood of success on the merits” of its claim that the process violated the state constitution.
Gessner’s order puts the new law on hold for now. A preliminary hearing on the complaint is expected within the next ten days.
The second part of NCAE’s complaint says the law is retribution for the group’s political activity during last year’s budget debate. The ban could also affect PENC, another teacher’s group, as well as retired educators. But “Without question, the NCAE was the target from the very beginning on the legislation,” said chief counsel Bob Orr on a conference call late this afternoon.
Gessner didn’t offer an opinion on that claim, saying the likelihood of success on the first claim was enough to put the law on hold.
Rep. Rick Glazier (D-Cumberland), a law professor, thinks the law will ultimately be found unconstitutional on a number of counts.
Glazier says the law violates the constitutional prohibition of “bills of attainder” – legislation aimed at punishing a person (and under Citizens United, NCAE is a “person”) without due process. He says it also violates the “equal protection” clause because it applies to teachers’ groups, but not to the state’s biggest employee organization, SEANC, which also uses payroll dues deduction. And, he said, it violates the First Amendment because it’s punishing NCAE for protected political speech and assembly.
Also unconstitutional, Glazier says, was the process of the late-night override. He said lawmakers were called back to Raleigh to consider only the veto of 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 under the provision of the constitution that says when you’re called back to do an override, that is limited to the issue of the override.”
“The governor called [the special session], the governor set it for one day – we can’t go and change that on our own simply because we want to add stuff to it,” Glazier said. “When that session was over, there was no right to flip into a new session and take up a matter with no notice to the public, no notice to stakeholders, no notice to the press, no notice to anyone that that bill or any bills were going to be heard.”
See Glazier's unedited comments at right.
Sneaky, but constitutional?
Other legal experts disagree with Glazier and the NCAE.
The NC Institute for Constitutional Law’s director Jeannette Doran said the late night session was “probably a little crafty, a little sneaky, but it was constitutional."
The constitution specifically limits lawmakers in a veto session to taking up only “such bills as” the governor returned to them. But the strategy Republicans used to call the late-night session wasn’t a bill – it was a resolution.
"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 Doran.
House and Senate leaders also didn’t follow the constitutional procedure to call the legislature back into session. But Doran said they didn’t need to.
“They had reconvened, and then decided to modify their adjournment resolution,” she said. “The Constitution has a specific provision that says that the House and the Senate can specify their own adjournment, when they’ll reconvene in the future. And they can set that for any day” she explained.
See Doran's unedited comments at right.
House Speaker Thom Tillis’s legal counsel Jason Kay is a former NCICL attorney. In an email, he explained why he, too, believes the procedure was constitutional. Here's his take via email:
During last week’s reconvened veto session scheduled by the Governor, the General Assembly simply voted to come back into regular session from a break in the regular session.
The process for taking that vote was identical to the 2007 process approved by then Speaker Hackney and Lt. Governor Perdue -– the adjournment resolution for the veto session modified the adjournment resolution for regular session.
The legislature is, of course, able to vote on resolutions during a veto session. Once the legislature voted to return to a regular session from the veto session, the legislature could – and did – take up other pending legislation properly before it, including veto overrides. The process complied fully with all requirements of the North Carolina Constitution, state statutes, and even the House rules, which were approved unanimously by all members of the House.
In the end, the Governor called the legislature back to consider overriding a veto, which is what happened.
Legal experts at UNC agreed the procedure might well have been constitutional.
Michael Crowell at the UNC School of Government said there’s precedent for the distinction between a bill and a resolution. “The practice has been to treat them as two separate things,” he said.
He said he’s also not yet convinced the calling of the surprise session was unconstitutional. “The constitution is intended to not make it easy for the legislature to call themselves into session,” Crowell said, “but once they’re in session, rescheduling or adjourning to a different date is pretty easy.”
However, Crowell said, the Constitution doesn’t offer a clear answer. UNC School of Law Professor John Orth, who hadn’t had a chance to review the proceedings, agreed that it’s the first time this question has arisen in in this state.
“It is clear that the plain meaning of the constitution says that nothing but the bill returned by the governor could be considered at the reconvened session,” Orth said. “But there’s a difference between resolutions and bills.”
“They clearly were going to come back in February. So the question is whether they could change that day, and more importantly whether they could change it during the session the governor called to reconsider vetoed bills,” he explained.
“For better or worse, I’m inclined to think it’s permissible,” Orth said. “It may be unwise, it may be unfair, it may be stupid for any number of reasons, but I think it would be upheld as constitutional.”
NCICL’s Jeannette Doran isn’t convinced the law will be overturned as a violation of equal protection, either.
Her group has undertaken many lawsuits against economic incentive packages on the grounds that they, too, violate equal protection by helping one group and not another.
“The courts have pretty consistently shot those cases down,” she said.
“I abhor any legislation that is or seems to be tailored to benefit or hinder any one group. But I don’t think that not liking something is the same thing as it being unconstitutional,” Doran added.