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Three-judge appellate panel considering how much right public has to instruct NC lawmakers

What does the constitutional right for North Carolinians to instruct their representatives mean?

That was the question a three-judge panel at the state Court of Appeals mulled over Thursday morning in Common Cause v. Forest, a challenge to the 2016 special legislative session in which two bills were passed that fundamentally changed the balance of power between governmental branches.

Burton Craige argued on behalf of the plaintiffs, Common Cause and 10 North Carolina citizens. He said that lawmakers provided no notice about the special session, suspended the majority of legislative rules and buried the substantive legislation by filing 26 other bills at the same time.

“They knew for months in advance what they were going to do,” Craige said. “They planned for it and they deliberately withheld it from the public and other legislators.”

He pushed for the court to craft a rule requiring notice for special legislative sessions and a reasonable opportunity for members of the public to communicate with their representatives.

Judge Richard Dietz, who is a registered Republican, asked Craige a lot of questions and played devil’s advocate during his argument. He said there wasn’t really any guidance when it came to the constitutional right to instruct, so the court would have to create precedent if it stepped into the challenge and overturned the lower court’s ruling for the defendants.

“Why couldn’t people call on legislators to call another special session and undo it?” he asked. “One of the unique features of legislating is that you can undo what you’ve done.”

He also indicated that the legislative process is always confusing and asked what made the special session different from a regular session committee meeting in which a complicated amendment might be added without notice.

Craige told him regular sessions were planned and people have ample notice to mobilize and lobby and participate in the process — special sessions, he added, have their own constitutional significance. He said the challenge for the court would be to reconcile the right of lawmakers to call a special session and the right of the people to instruct their representatives about legislation.

He addressed the court’s concerns about establishing a timeline for the right to instruct to the right to procedural due process. That right does not give “x period of time” but the courts established what it meant.

“If these facts don’t violate the right to instruct, what facts do?” he asked. “[The court] must give meaning to those rules.”

Dietz asked the attorney for the state, Matt Tulchin, a similar question during his argument. He asked him what his example would be of a situation that violates the right to instruct.

Tulchin told him it would be more generalized — if legislation couldn’t be made public prior to its enactment or if lawmakers prohibited lobbying or the public’s opportunity to communicate altogether with them.

He said the right to instruct hasn’t been used in the country in over 100 years because it’s a different time now than when it was created. We live in a 24/7 news cycle and communication and travel to the capital is easier, he said, adding that just because the right is in the constitution doesn’t mean it is what the plaintiffs want it to mean.

“That would render a lot of legislation unconstitutional,” he warned of the judges imposing a time-frame for public notification.

Tulchin said that the public did have time to communicate with lawmakers during the 2016 legislative session and that the media reported on the substantive bills before they were introduced. He also said there was nothing preventing citizens from communicating with lawmakers after a bill passed.

The bills that were passed out of the session were Senate Bill 4, which 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, which transferred power from the state Board of Education to the Superintendent of Public Instruction.

There has already been extensive litigation over the substance of those bills rather than the special session itself.

Craige asked the judges to read and re-read the affidavits of the North Carolina citizen plaintiffs as part of the case. They wrote about being actively engaged in the political process on a regular basis and historically participating in robust discussion with lawmakers.

“Those avenues were cut off,” he said of the 2016 special session. “Reasonable notice and opportunity to be heard — that’s what the legislature needs to provide its citizens.”

The judges are taking arguments under advisement to release an opinion at a later time. Dietz presided with Judge Hunter Murphy, another registered Republican, and Judge Allegra Collins, a registered Democrat.

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