Common Cause Challenges the Constitutionality of the December 14-16, 2016 Special Session

On February 21, 2018, a three-judge panel heard oral arguments in the case of Common Cause v. Forest. This lawsuit was filed to dispute the constitutionality of the special session held by the General Assembly December 14-16, 2016, which was reported widely in the national news as a power grab by the NCGOP before newly elected Governor Cooper’s inauguration. As part of that special session, the General Assembly enacted two pieces of legislation that, among other things:

  • Combined the state Board of Elections and the Ethics Commission;
  • Changed the composition and appointment style of members of the state Board of Elections;
  • Made changes to county boards of election;
  • Removed power from the state Board of Education and gave it to the state Superintendent;
  • Required that the incoming governor’s cabinet picks be confirmed by the legislature;
  • Reduced the number of positions the incoming governor could deem as “exempt” from the NC Human Resources Act;
  • Created partisan judicial elections.

Much of the legislation that was enacted in that special session has been challenged (or is still being challenged) in court.

There are two ways to call a special session in line with the NC Constitution. Article III, Section 5(7) lets the governor call a special session by proclamation in “extraordinary occasions,” and requires the governor to state the purpose of the special session in the proclamation. Article II, Section 11(2) states that the legislature may convene a special session upon receipt of the signatures of three-fifths of the members of the House and three-fifths of the members of the Senate. The lawsuit from Common Cause notes that there have been 26 special sessions held from 1960 to December 2016 during which legislation was enacted, and for every single special session held prior to the one in question, advance notice that a special session would be held and advance notice of what would be considered during the special session was provided to the public. In oral arguments, the attorney for Common Cause said this was the only special session in the last 75 years that did not provide prior notice to the public.

The special session held December 14-16, 2016 came on the heels of a special session that had been called by then-governor Pat McCrory for the purposes of providing financial relief for victims of Hurricane Matthew. McCrory announced that special session on December 9, 2016 and it was convened on December 13, 2016. The legislature did indeed consider and pass legislation providing relief for victims of Hurricane Matthew. Just before adjourning, however, the House and Senate leaders announced there would be another special session to convene immediately following the end of the one in progress one.

According to the lawsuit, the timing of events on December 14, 2016 is as follows:

11:00 a.m.: The Senate convenes to consider the relief bill previously passed by the House.

11:50 a.m.: The Senate passes an amended version of the relief bill, which is sent back to the House.

12:00 p.m.: The House and Senate leaders announce there will be another special session convening at 2:00 p.m. At this point, the existing special session has not yet concluded.

1:30 p.m.: The House passes the amended version of the relief bill sent to them by the Senate, which is then sent to the governor and later signed.

2:02 p.m.: The Senate adjourns the special session.

2:05 p.m.: The House adjourns the special session.

2:06 p.m.: The House convenes the next special session.

2:19 p.m.: The House passes HR 1, modifying the permanent rules of the House (more on that below).

2:34 p.m.: The Senate convenes the next special session.

2:37 p.m.: The Senate passes SR 1, modifying the permanent rules of the Senate (more on that below).

Clearly, if the General Assembly called for an extra special session, adjourned the existing special session, convened the new extra special session, and enacted two pieces of legislation – all within a span of a little over two and a half hours – this was not spontaneous but was indeed some kind of special.

The two pieces of legislation that passed – HR 1 and SR 1 – temporarily modified the permanent rules of the House and Senate. Ordinarily, there are rules that govern how potential legislation makes its way through the House and Senate, and there is time built into those rules to allow for public notice. For example, bills introduced one day are ordinarily not eligible to be considered for the first time until the following day. After the first time a bill is read in the General Assembly, it is typically referred to a committee, which then posts advance notice of when it will meet and when it will consider that particular bill. Once the bill passes either the House or the Senate, it is sent over to the other side, where the same process repeats itself.

During this special session, HR 1 and SR 1 eliminated the following regulations from the permanent rules of the House and Senate:

  • Time restrictions on when a bill that was first introduced could appear on the calendar.
  • A requirement that a bill have a single topic (House only).
  • A requirement that all bills be referred to a committee before being placed on the calendar for a second or third vote by the full chamber (House only).
  • A requirement that two-thirds of the chamber approve the addition of a bill to the calendar the same day it returned from committee (House only).
  • A requirement that the committee members must receive a proposed substitute for a bill by 9:00 p.m. the night before a committee meeting (House only).
  • A requirement that a conference committee report wait a day before being voted on.
  • A requirement that a newly introduced bill or a bill received from the other chamber must wait a day before appearing on the calendar.
  • A requirement that members of a chamber needed a two-thirds majority approval to hold more than one reading of a bill on the same day.
  • A requirement that a gubernatorial veto must be placed on the calendar two legislative days after (instead allowing it to happen the same day as the gubernatorial veto) (House only).

Common Cause states in its lawsuit that the reason for this was to deprive the public of an opportunity to be aware of the topic of the proposed legislation or to speak out about it. It’s hard to argue that point, given the timeline and given the striking similarity of the legislation modifying the permanent rules that was adopted within minutes of the convening of the special session.

The NC Constitution puts no requirements of notice to the public in its provisions allowing the General Assembly to call a special session. However, Common Cause is using other parts of the NC Constitution to argue that this special session was unconstitutional and should be deemed invalid (which would then arguably make the legislation enacted invalid).

Article I, Section 12 of the NC Constitution states:

The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; but secret political societies are dangerous to the liberties of a free people and shall not be tolerated.”

Common Cause argues that the special session violates Article I, Section 12 of the NC Constitution because the lack of notice about and during the special session deprived citizens of their opportunity to instruct their representatives; that is, to have a say about the legislation proposed. It includes a number of additional plaintiffs from around the state who regularly participate in the political process by “instructing their representatives.”

Common Clause also argues that denial of the right of citizens to know the content of legislation and communicate with their representatives violates Article I, Section 19, which is the due process clause (before depriving someone of a fundamental right, like one enumerated in the constitution, there must be a fair and equitable legal process). Common Cause further argues that the due process clause protects citizens from arbitrary or meaningless enacting of legislation. Some of the plaintiffs included in the case with Common Clause are members of county boards of election who will now have their ability to influence and govern diminished by the changes in the law and an unaffiliated voter who has previously run for judicial office and will now face difficulties in doing so because the judicial elections are partisan.

The case was heard by a three-judge panel comprised of judges picked by the chief justice of the state Supreme Court, under a process established by the GOP in 2014 specifically with regard to hearing challenges to their legislation. The panel is comprised of one Democrat and two Republican judges. There is no indication yet on when a decision will be made. Stay tuned!