Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.
House leader worries that AG may not offer best defense
RALEIGH Rep. Paul "Skip" Stam, R-Wake, the House speaker pro tem, says a provision passed late in the General Assembly's session - giving lawmakers the right to intervene in lawsuits filed against the state - offers an insurance policy in case the attorney general provides what legislative leaders think is an inadequate effort defending state laws or constitutional amendments from litigation.
While Democratic Attorney General Roy Cooper and critics of the General Assembly's legislative agenda question the need (and even the legality) of the bill, an expert on the state constitution says allowing additional parties to intervene in lawsuits can ensure that the best arguments are presented in court.
Lawsuits are likely in a host of areas, from school choice to election reform to abortion. Cooper - whose office traditionally represents the state in such litigation - has expressed his opposition to some of the new laws publicly. Stam says the state needs a legal backstop.
"I don't think it's a lack of confidence in Cooper personally," said Stam, who pushed to add the standing-to-intervene language in Senate Bill 473
, giving the speaker of the House and the Senate president pro tem the authority to join a lawsuit. "But on these high-profile [cases] that he has actually publicly attacked, you wonder."
One instance Stam cited was a letter Cooper sent July 26 to Gov. Pat McCrory opposing the election reforms in House Bill 589
, such as fewer early voting days and requiring Voter ID. Cooper called it "regressive legislation," and urged the governor to veto the bill.
"You may want to have the [General] Assembly have the option of presenting the case in a more positive light," an option enjoyed by legislatures in other states, Stam said.
"The pro-life bill (Senate Bill 353
), although it is clearly, in my opinion, constitutional, I mean most every significant provision of it has already been upheld by the courts - [Cooper] attacked it as unconstitutional," Stam said of a bill passed late in the session adding new restrictions on abortion clinics.
"So how does he defend a bill in court when a judge can just read back to him his statement that it was unconstitutional?" Stam said.
In several recent cases, state attorneys general have refused to defend state laws from court challenges. These instances added urgency to North Carolina's legislation.
"We had the spectacle in California and a couple of other states where the attorney general wouldn't defend their marriage amendment [a constitutional amendment banning same-sex marriage]. So as a result, even though a majority of California voters voted against same-sex marriage, California has same-sex marriage because the attorney general wouldn't defend it," Stam said.
Moore's spokeswoman Noelle Talley thinks the concerns are overblown. "It is the duty of the attorney general under the law to represent the state when it gets sued, and that's what our office plans to continue to do," Talley said.
"The AG doesn't have to agree personally with a law in order for his office to be effective in defending it," Talley said. As examples, she pointed to the litigation surrounding redistricting and previous abortion cases.
Stam's theory may be tested soon. The Rev. William Barber II, president of the North Carolina chapter of the NAACP, is promising to bring "several lawsuits" against the state for election reform measures and other legislation passed this year that he believes are unconstitutional.
"Our attorneys are talking about working on several different angles to challenge what they [GOP lawmakers] have done, especially in voting rights" and vouchers for low-income students to attend private schools, Barber said.
"Our constitution says that public education is a constitutional right, and when you undermine public education you're violating the constitution, so we're going to be looking at several areas of lawsuits, public education, voting rights, and probably a couple others," Barber said.
He also disapproves of the standing-to-intervene legislation.
"It's never been done before that we know of, and even if it had it's still wrong because the AG is the constitutional office," Barber said.
"They're operating in the 19th century. They're trying to go backwards," he said of Republican lawmakers' passage of the bill.
"They're trying to do what the radical Redeemers movement did after Reconstruction in the 1800s, and that's why we have to challenge it because it's an attack on democracy. In fact, it's a crime against democracy," Barber said.
The Redeemers were a powerful strain of the Democrat Party that used fraud and violence-fueled paramilitary forces to drive Republicans, Northern immigrants, and freed blacks from positions of power during the post-Civil War Reconstruction era.
Jeanette Doran, executive director and general counsel for the North Carolina Institute for Constitutional Law, does not share Barber's concern over the judicial standing legislation.
"I can tell you it's constitutional," Doran said.
"The people who suspect it might not be constitutional are people who do not understand that it is not in any way a diminution of the attorney general's authority. The attorney general would still represent the state, but the leadership jointly could intervene and have their own counsel," Doran said.
"And in any event, the duties of the attorney general are not enumerated in the constitution. They are set by law, which, of course, is made by the General Assembly," she said.
She believes the trend of state attorneys general not defending state laws "is a big problem."
It also is a problem at the national level, she said, where U.S. Attorney General Eric Holder refused to defend the constitutionality of the Defense of Marriage Act provisions in the recent U.S. Supreme Court case U.S. v. Windsor.
"There needs to be a mechanism in place for that just-in-case scenario," Doran said.
Nevada, Utah, and California all have laws giving the legislature judicial standing, she said.
Stam said research he conducted before filing the bill shows Oklahoma, Wyoming, and a few other states have such laws.
Jon Griffin, policy specialist at the National Conference of State Legislatures, said no other state has enacted standing-to-intervene laws this year.
He said Montana's Legal Review issued a note on draft House legislation that was proposed this year.
He said the review "discusses the legality of the bill, and finally concludes that the bill's 'statutory authorization of legislator standing and the ability to intervene may raise potential constitutional conformity issues with the Judicial Branch's power to determine a litigant's ability to bring a specific cause of action or to intervene in a cause of action before a court."
Doran said intervention allows a third party or another entity to join a lawsuit.
"They work alongside either the plaintiff or the defendant, but they don't push out the plaintiff or defendant," Doran said.
"Interveners have real participation in the case," and can present evidence, bring forth witnesses, and make motions, Doran said. "It's not just a sideshow."
"The attorney general could make one argument of why it's constitutional and the interveners could make a different argument. As long as either one of those would uphold the statute, the court would be required to uphold it," Doran said.
Rule 24 under North Carolina Rules of Civil Procedure provides for intervention "in any action when a statute confers an unconditional right to intervene, which is precisely what we have here" with the bill that permits the House Speaker and Senate leader to intervene, Doran said.
She said judges and attorneys in North Carolina are "all familiar with intervention. In fact, when we had our lottery case the [left-leaning N.C.] Justice Center intervened. They were plaintiff interveners representing Common Cause and NC Fair Share, and we worked collaboratively with them."