It appears when North Carolina Republicans passed a technical corrections bill restricting Attorney General Josh Stein’s powers, they may have forgotten about a provision of the state constitution that delegates to him those very powers.
Senate Bill 582, among many other things, dictates that Stein’s office handle all criminal appeals without any power to delegate that work to district attorneys or other entities.
The exact language: “The Attorney General shall not delegate to the district attorney, or any other entity, the duty to represent the State in criminal and juvenile appeals.”
Article IV, Section 18 of the North Carolina Constitution, however, directly contradicts that statute with very clear language.
“The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.”
Two people who are considered to be state constitutional experts said Friday they were unaware of the provision until it was pointed out, but that on its face, it very clearly delegates power to Stein with regard to how appeals are handled.
“It looks to me pretty straightforward,” said Gerry Cohen, former special counsel to the state legislature. “He has a power directly granted to him under the Constitution.
Michael Crowell, an attorney in Chapel Hill, said there has always been litigation over whether the General Assembly has the power to change the Attorney General’s duties, but the provision in Article IV, Sec. 18 makes this situation different because it is a power directly delegated by the Constitution.
“It doesn’t seem that there’s any way around that,” Crowell said. “I mean, how do you argue it doesn’t mean what it says it means?”
The General Assembly slashed Stein’s Department of Justice budget by $10 million without any public notice that it was coming. In acquiescing to the budget cut, Stein eliminated 45 DOJ positions and shifted some criminal appeals to district attorneys offices across the state. He still has $3 million to cut.
SB582 was legislative leaders’ response to Stein’s delegation of work to comply with their budget cut. Republicans on the House floor Thursday said they received complaints from some district attorneys about the shift and said that Stein should be able to handle its workload with the resources it has.
According to the legislation they created, district attorneys could step in to handle criminal appeals if they want to but Stein could not delegate the work to them on his own.
House Democrats, who also were not aware of the constitutional provision until Friday, argued that Stein already has had to cut too many resources and that SB582 was drafted and passed out of meanness and spite.
The bill passed both chambers, with a couple Republicans voting against it. It is awaiting Gov. Roy Cooper’s signature. Cooper’s Office said he is currently reviewing the legislation.
House Minority Leader Darren Jackson agreed that the constitutional provision seemed very clear.
“Having read that, I think that’s a pretty strong argument that what we’ve done is essentially unconstitutional,” he said.
Jackson, who voted against SB582, said he thinks the General Assembly should restore the $10 million budget cut to Stein’s office. He added that he’s hopeful since lawmakers have to stick around for 10 more days (the special session is not technically scheduled to end until the 17th), they will be able to fix what they’ve done, and maybe also work on addressing class size issues.
Senate Minority Leader Dan Blue said Friday he saw the provision delegating Stein’s power the day before but the attitude of some of his colleagues is that they don’t care about the constitution.
“Maybe it made them feel better, but it is unenforceable,” he added of SB582. “This is as clear and straightforward as you can get.”
The Attorney General’s office and Senate President Pro Tem Phil Berger and House Speaker Tim Moore’s offices were not immediately available to comment.
This is a developing story and will be updated as responses are made.