Should a bill that gives leaders of the General Assembly standing to intervene in lawsuits on the state’s behalf become law, its use would likely be expensive, disruptive and possibly irrelevant to federal courts.
So say some legal experts and former Gov. Mike Easley, who is also a former attorney general. Proponents of the bill say similar mechanisms are in place in other states and the law is needed to shore up defense of laws in case the attorney general declines to defend them.
As the Aug. 25 signing deadline neared, discussions concerning Senate Bill 473 were ongoing last week in Gov. Pat McCrory’s office, with the governor expected to approve it. The bill, passed on the last day of the legislative session, would give the speaker of the House and president of the Senate joint authority on par with that of the state AG to defend legal challenges to state laws – a move that opponents say violates the principal of separation of powers and would not withstand scrutiny from the federal bench.
Attorney General Roy Cooper, a Democrat, has said he personally opposes the voter ID law passed by the Republican-dominated General Assembly earlier this summer, and which is now the target of federal lawsuits. Before McCrory signed it into law, Cooper launched an online petition drive seeking to persuade McCrory to veto what he called a “regressive elections bill.”
Nonetheless, Cooper has said his office will defend the state in judicial matters.
“It’s 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,” Noelle Talley, a spokesperson for the AG, said via email. “The AG doesn’t have to agree personally with a law in order for his office to be effective in defending it.”
Less contentious than assumed
Easley said he doubts legislators would ever use the law, and that the relationship between the AG’s office and the legislature is not as contentious as press accounts have portrayed it. The long-time staff attorneys in the AG’s office are public servants who have watched politicians come and go, Easley said. When they disagree over a matter of law with a state group or agency, they work it out before things get to court or they put their personal differences aside and do their jobs.
“I think this office generally sees their role pretty clearly, that they have to make every effort to defend the laws as passed by the General Assembly unless there is something clearly unconstitutional,” he said.
For example, the AG’s office has put up a good defense in the lawsuits challenging Republican-drawn voting districts, he said.
“And you know that personally Cooper can’t like that, yet the office is making all of the best arguments that they can and then letting the courts decide,” he said.
A legal challenge to North Carolina’s same-sex marriage ban is also on the political radar. The plaintiffs, represented by the ACLU, have asked to amend the lawsuit, which focuses on adoption rights, to include a challenge to the state’s ban on same-sex marriage. Cooper has said he would not oppose the change.
The issue of standing was a key point in the recent Supreme Court ruling on California’s Proposition 8 law, which banned same-sex marriage. California’s attorney general refused to defend the law, and a federal district court allowed petitioners to intervene. The Supreme Court ruled that the petitioners did not have standing to defend the law.
Jeannette Doran, executive director of the North Carolina Institute for Constitutional Law, says SB 473 was crafted with the question of the U.S. Constitution’s Article III, which covers standing in federal courts, in mind.
“The statute seems to have been written with an eye toward that,” Doran said. “When deciding standing, a federal court can relate to that state statute and rely on it to determine that the state legislature has a right to defend the state constitution, provision or statute.”
But Michael Gerhardt, professor of constitutional law at UNC Law and director of the UNC Center on Law and Government, pointed out that members of Congress do not have standing to intervene on legislation they’ve had a chance to vote on. He cited Raines v. Byrd, in which the U.S. House tried to mount a constitutional challenge to the line item veto. The Supreme Court ruled that lawmakers can’t represent the legislative body as a whole, and take a “second bite of the apple” regarding laws they have had a chance to vote on.
Doran says the fact that the state constitution grants the authority of defining the powers of the attorney general to the legislature undermines arguments that SB 473 would violate the separation of powers principle.
“If there was any concern about a separation of powers, the [state] constitution would have been written differently,” she said.
Paying twice for lawyers
North Carolina’s governor is also empowered by statute to retain counsel other than the attorney general on behalf of the state if the AG finds it impracticable to defend a law.
Doran said about one-third of states have some mechanism that allows the governor or the state officers to represent the state in the case that the AG does not.
Gerhardt said the bill undermines the attorney general. “I don’t think the speaker or the senate pro tem is the proper authority,” he said. “I don’t think this is the right remedy for that situation. These are exactly the places where those federal questions might be raised.”
UNC Law professor William Marshall, who served as the Solicitor General of Ohio, says the bill amounts to “a remedy without a problem” that could wind up being expensive.
“It’s often, by the way, costly to have two sets of lawyers,” he said “That’s going to cost the state some money … This is the antithesis of government efficiency.”
Easley agreed that having legislative leaders intervene and hire lawyers from outside the AG’s office could be expensive and disruptive.
“When you get more than one lawyer trying to set the strategy for a case, it usually ends up as a disaster,” he said. “The experts in this area are at the AG’s office.”
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