Lawsuit challenging North Carolina special session goes to trial

RALEIGH, N.C. — A legal challenge of a special session called by Republicans at the North Carolina General Assembly to pass laws that eroded Democratic Gov. Roy Cooper's powers just before he took office is going to trial.

A panel of three Superior Court judges scheduled arguments Wednesday from lawyers for a government reform group and 10 state residents who argue the December 2016 session was illegal. Lawyers for the state and the Republican legislative leaders who were sued disagree.

The session began the same day a separate "extra" session on Hurricane Matthew relief ended. The challenged measures shifted the balance of power between the legislative and executive branches just days after GOP Gov. Pat McCrory conceded an extremely close election to Cooper, and led to Cooper's own legal challenges.

The lawsuit before the judges Wednesday takes a different approach than Cooper by focusing on the legislative process. Still, Common Cause and the citizens want the legislature's methods to pass the laws struck down as unconstitutional and the two wide-ranging laws lawmakers approved voided.

The laws subjected Cooper's Cabinet to Senate confirmation, made appeals court elections officially partisan races and moved powers from the State Board of Education to the state schools superintendent. Other changes shifting control over administering elections and reducing the number of employees Cooper could hire compared to McCrory already were struck down due to Cooper's own litigation.

The trial was expected to last only an afternoon. The judges said previously they would aim soon after for a ruling, which likely will be appealed.

The plaintiffs said GOP legislators deliberately hid their intentions by giving just two hours' notice before starting the session, even though requests seeking signatures necessary from House and Senate members to call the session were dated a day or two earlier.

Although demonstrators protested at the Legislative Building over the three-day session, leading to dozens of arrests, the plaintiffs say they had little or no time to contact lawmakers about proposals. The actions, they argued in a brief, crushed their rights to due process and the right to "instruct their representatives," which has been enshrined in the state constitution since 1776.

"By radically abridging the process of hearing and debate, defendants deliberately denied plaintiffs and other citizens their right to participate in the legislative process," lawyer Burton Craige wrote. "This was legislation by ambush - a premeditated assault on democracy."

Attorneys in the department - led by Democratic Attorney General Josh Stein - are defending Senate leader Phil Berger, House Speaker Tim Moore and Lt. Gov. Dan Forest, the Senate's presiding officer. They want the case dismissed or a judgment favoring them, saying the conflict is a matter for political forums, not courtrooms, and the plaintiffs can't show they've been deprived of a constitutional right.

The protests and media attention showed the public had enough notice about the session and to learn about the proposed legislation, the defendants' briefs say. The briefs add that those who sued had email, text and social media to make their feelings known.

"The avenues available to these legislative-savvy plaintiffs to communicate with their representatives could have clearly occurred within the course of a period of three days," Chief Deputy Attorney General Alexander Peters and other state attorneys wrote.

Associated Press