State seeks dismissal of NCAE lawsuit

Attorneys for the state asked a Wake County judge today to dismiss NCAE's lawsuit against lawmakers.

Posted Updated

Laura Leslie

Attorneys for the state asked a Wake County judge today to dismiss a lawsuit filed by the NC Association of Educators against the state. 

NCAE's legal counsel countered with a request for a preliminary injunction against Session Law 2012-1, the law taking away its members' ability to choose to have their NCAE dues automatically deducted from their paychecks.

The backstory

NCAE is just one of many groups whose members can have their dues deducted by the state. But after the group ran ads attacking the five House Democrats who sided with Republicans in last year's state budget battle, GOP leaders moved legislation to strip the group's dues deduction.

GOP leaders have denied the measure was political payback. But in a private caucus meeting that was inadvertently broadcast to the press room, House Speaker Thom Tillis said, "“The reason we’re doing it is because the NCAE has gone into all five districts with mailers hammering these Democrats. It’s just a little taste of what’s to come.”

Governor Bev Perdue vetoed the bill last summer. But in January, lawmakers who had been called back to try to override a different veto instead took up the Dues Checkoff veto, amending their adjournment resolution to call an unannounced post-midnight session. Because some Democrats had gone home, fewer votes were needed for an override.

NCAE said both the law and the session were unconstitutional. The group quickly sued to block the law. Wake County Judge Paul Gessner granted its request for a temporary restraining order in January. 

Today's hearing
Deputy AGs Tom Ziko and Tracy Hayes presented the state's motion to dismiss. They say the legislature acted within its constitutional powers both on the bill itself and in calling the midnight session. Their brief details the state's arguments on behalf of lawmakers. 
NCAE's attorneys Bob Orr and Drew Erteschik, seeking a preliminary injunction, argued legislators violated constitutional provisions by calling themselves into session to reconsider a veto other than the one they were called back to override. Their brief says the law is unconstitutional because it targets NCAE specifically, and, since money equals speech, it's an attempt to infringe on the group's political speech.

Judge Gessner did not rule from the bench, except to order that his original TRO would stand until he rules on today's two competing motions. Gessner said he hoped to have a decision by the time lawmakers come back for their scheduled short session in May. 


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