What does the constitutional right to instruct mean? Did lawmakers violate it when they called a special session in 2016 with just two hours’ notice?
Those are some of the questions a three-judge panel is considering in the case of Common Cause v. Forest, a lawsuit challenging the constitutionality of the session in which two laws were passed that changed the power structure of state government.
“What the defendants did was undemocratic, unprecedented and unconstitutional,” said Burton Craige, an attorney representing the plaintiffs — Common Cause NC and 10 state residents.
He told the judges that the 2016 fourth extra special session was the only one in 75 years that did not provide advance notice to the public that a special session would be convened and notice of the purpose of the special session.
In addition to the lack of notice, lawmakers passed a number of special rules that Craige said truncated the legislative process and deprived members of the public a meaningful opportunity to participate.
“Even citizens well-versed in the legislative process did not have a practical opportunity to communicate with their legislators,” Craige said.
He pointed to an affidavit submitted by Common Cause NC Executive Director Bob Phillips that said the organization did not have enough time to review bills, offer inside analysis or suggestions to make the legislation better.
“This was legislation by ambush; this was a premeditated assault on democracy,” Craige said.
His solution is for the court to apply a constitutional test that applies to the circumstances of the case — the legislature should be required to either provide advance notice to the public of a special session and its purpose or provide some justification for its departure from historical precedent.
He accused the defendants, Lieutenant Gov. Dan Forest, House Speaker Tim Moore and Senate President Pro Tem Phil Berger, of providing no justification for the 2016 special session.
“There was no reason other than to exclude the public from participating,” Craige said. “We have to look at the circumstances, and here the circumstances we have are zero notice, extraordinarily complex legislation, deliberate secrecy and no explanation for why.”
Matthew Tulchin, of the State Department of Justice, argued that lawmakers did in fact give notice and that Craige was using rhetoric to make a policy argument.
“Underneath it all though, what this is about, is the plaintiffs don’t like the two laws enacted,” he said.
He added that lawmakers have a right to determine what processes and procedures they follow, and that there is no expressed time or notice requirement in the constitution. He also said that the public had 44 hours to review the bills introduced during the 2016 special session.
“It’s erroneous to say that there wasn’t any notice,” Tulchin said. “Hundreds of people showed up at the General Assembly … and expressed their viewpoints in loud enough terms to disrupt their session.”
The three-judge panel had numerous questions for both Tulchin and Craige, but one they seemed to come back to was what the right to instruct meant in Article 1, Section 12 of the North Carolina Constitution.
The three judges presiding over the case are are Judge Wayland Sermons, a registered Democrat who serves the second judicial district, which includes Beaufort County; Judge Martin McGee, a registered Republican who serves Cabarrus County; and Judge W. Todd Pomeroy, a registered Republican who serves Cleveland and Lincoln counties.
Tulchin compared the right to instruct with dead letter law — a law that is still in effect but cannot be enforced because of a change in circumstances.
“It is a function of the times of when it was enacted,” he said, noting that technology now is a lot different than when the provision was enacted.
He also said the provision was a process of a representative government, which the state has, and voters could exercise their rights at the ballot box.
Craige argued that the provision is meant to give voters a meaningful opportunity to participate in the legislative process.
“Those words have meaning,” he said. “They would eliminate these words from the constitution, pretend they don’t exist, and of course, they can’t do that. This court can’t do that.”