Statehouse override procedure faces constitutional scrutiny

The N.C. General Assembly convenes tonight for the third week of its 2012 short session. Last week saw some remarkably disparate actions from both inside and outside the Statehouse, having to do with current and past legislation. Notably, one of items added by the leadership to this week’s agenda — a veto override attempt to repeal the Racial Justice Act (SB 9) — is now involved in what may prove to be a landmark lawsuit regarding gubernatorial vetoes.

The lawsuit was filed by the N.C. Association of Educators. It involves “parking” (removing from the agenda) vetoed bills until — ostensibly — legislative leadership perceives the required override vote can be mustered. The suit was filed in reaction to a veto override vote taken post-midnight in one of the special legislative sessions earlier this year. That action directly affected the NCAE because it banned dues checkoffs for the organization from the paychecks of school employees. The bill (SB 727), introduced April 11, 2011, was originally approved and forwarded to Gov. Bev Perdue on June 9, 2011. Perdue vetoed the bill on June 18, 2011.

The Senate then voted to override the veto, which requires a three-fifths majority approval, on June 18, 2011, and it was then placed on the House calendar for July 25. But due to the parking system of holding a vetoed bill until a vote favorable to the leadership is assured, the override vote did not take place until that post-midnight session on January 5, 2012. That late-night session itself remains a source of contention, since it was convened immediately following a legislative session called by the governor solely for the sole purpose of considering her veto of SB 9. The Senate voted to override that veto, but the House — without the necessary number of votes present — referred it to the Judiciary Committee. Now, over five months later, it has been placed on the calendar again.

The NCAE’s lawsuit involves the larger question of the efficacy of parking such bills. As the Charlotte Observer reports, the suit is built on constitutional grounds that “the legislature wasn’t properly in session, that the bill was retaliatory and that the General Assembly had failed to take an override vote promptly after the veto.” The challenge contends that a prompt vote is necessary because the state Constitution says once the governor has issued a veto, the General Assembly must “proceed to reconsider” the bill. The Observer’s news article further notes that former N.C. Chief Justice Robert Orr, known to be a conservative constitutional scholar, agreed to take the NCAE’s case — adding to the potential significance of the constitutional argument. Now supporting briefs have been filed by the N.C. Police Benevolent Association and by the League of Women Voters of North Carolina — the latter a nonpartisan organization that pushed for the constitutional amendment that gave veto power to North Carolina governors in 1996.

As the court action plays out (a recent ruling in the Wake County Superior Court stopped the checkoff bill from taking effect), other high-profile holdovers from the 2011 legislative session include requiring photo ID to vote (HB 351), and making hydraulic fracturing (“fracking”) legal in the state (SB 709). (See “Legislature’s Back, Still Carrying Some Old Baggage,” May 15).

Meanwhile, other action among the sizeable number of new bills introduced last week (primarily resulting from interim committee work) included two potentially signature local-control bills to cap the number of charter schools and establish charter-school standards on a county basis (introduced on behalf of Durham County); an Asheville/Woodfin boundary adjustment sponsored by all three Buncombe County representatives; and a bill providing for interconnection of public water systems, sponsored by WNC representatives Tim Moffitt (Buncombe County) and Chuck McGrady (Henderson County). For details on those and others, click on the bill numbers below.

by Nelda Holder, associate editor

HB 1152 Cap on Charter Schools/ Durham County
HB 1153 Standards on Charter Schools/Durham County
HB 1166 Temporarily Raise Income Tax on Millionaires Kever co-sponsor
HB 1178 Western Carolina/University Participant Program Haire, West primary
HB 1184 Clarify Underground Injection Ban
HB 1185 Fracking Contracts/Against Public Policy (Faison primary; Hall, Luebke co-sponsor)
HB 1186 Restore Budget Cuts/Add Temp. Sales Tax (Faison/Hall primary)
HB 1187 NC Toxic-Free Kids Act McGrady/Fisher primary; Keever co- sponsor
HB 1192 Amend Castle Doctrine/Repeal Stand Ground
HB 1201 Citizens United Response Rapp, Keever primary
HB 1217 Asheville/Woodfin Boundary AdjustHB 100ments Fisher/Moffitt/Keever primary 5/30

SB 231 Interconnection of Public Water Systems
SB 795 (Committee Substitute) Excellent Public Schools Act
Apodaca/Berger primary; Jim Davis, Ralph Hise co-sponsors