Common Cause and NC citizens file lawsuit challenging constitutionality of legislature’s surprise extra session

Common Cause NC and 10 North Carolina citizens on Wednesday filed suit in Wake County Superior Court challenging the constitutionality of the process that the NC General Assembly used to enact sweeping legislation by a hastily convened special session in December 2016.

At the heart of the challenge is a violation of citizens’ constitutional right to “instruct their representatives” – a right expressly guaranteed by Article I, Section 12 of the North Carolina Constitution.

“In December 2016, the General Assembly – with no notice to the public – convened a special session, cut off debate, and rushed through legislation that changed the fundamental structure of state government,” said Bob Phillips, executive director of the nonpartisan Common Cause NC. “The right of the people ‘to instruct their representatives’ is meaningless if they have no notice and no opportunity to be heard.”

The 10 individual plaintiffs are North Carolina citizens from around the state who have actively participated in civic affairs, but were denied the right to instruct their representatives in the December special session. The plaintiffs include:

•Rev. Dawn Baldwin Gibson, resident of Pamlico County, and pastor at Peletah Ministries in New Bern;
•Bob Morrison, former President of Randolph Hospital in Asheboro;
•Stella Anderson, a member of the Watauga County Board of Elections;
•Rev. T. Anthony Spearman, a minister in Greensboro and President of the North Carolina Council of Churches; and
•Sabra Faires, a Raleigh lawyer who was the lead plaintiff in the lawsuit that struck down the 2015 “retention election” statute.

Legislative leaders provided public notice of the December special session only two hours before the session was convened and gave no notice of the topics that would be addressed. Since 1960, the General Assembly enacted legislation in 26 special sessions. In every one of those special sessions – except the Fourth Extra Session in December 2016 – the legislature or governor provided advance notice of the time and purpose of the special session.

After convening the Fourth Extra Session, legislative leaders modified the rules of the House and Senate to speed up the legislative process and curtail participation in committee meetings, effectively eliminating debate and deliberation.

The absence of public notice and wholesale changes to the legislative rules made it virtually impossible for North Carolina citizens to communicate with their representatives about the sweeping legislation proposed and enacted during the Fourth Extra Session.

The plaintiffs’ suit seeks to void the two bills that were passed in the Fourth Extra Session:

•Senate Bill 4 changed the structure of state and county boards of elections and the State Ethics Commission, created partisan appellate judicial elections, and stripped the newly elected governor of the power to administer the Industrial Commission; and

•House Bill 17 curtailed the governor’s appointive powers and transferred power from the State Board of Education to the Superintendent of Public Instruction.

Key passages from the plaintiffs’ complaint:

“The lack of any advance notice to the public about the Fourth Extra Session and the sharply abbreviated legislative process denied plaintiffs and other interested citizens any meaningful opportunity to communicate with their representatives about the potential effect of the bills, in violation of plaintiffs’ right under Article I, Section 12 of the North Carolina Constitution to ‘instruct their representatives.’

“There was no emergency requiring the Fourth Extra Session, and no circumstances justified the lack of notice and the lack of opportunity for citizens to instruct their representatives.

“Seeking to restrict public scrutiny, participation, and debate, Defendants concealed from the public and the media the contents of House Bill 17 and Senate Bill 4 before convening the Fourth Extra Session.”