Amend­ment eyed as back­door to stop veto power

The Charlotte Observer (Sunday) - - News - BY PAUL A. SPECHT AND WILL DO­RAN as­[email protected]­sob­ wdo­[email protected]­sob­

Some fear one of North Carolina’s pro­posed con­sti­tu­tional amend­ments could al­low state leg­is­la­tors to by­pass the gover­nor’s fu­ture ve­toes.

The amend­ment is one of six sched­uled to ap­pear on the Novem­ber bal­lot. As writ­ten, it would trans­fer much of the power to fill ju­di­cial va­can­cies from the gover­nor’s of­fice (cur­rently held by a Demo­crat) to the state Gen­eral Assem­bly (cur­rently con­trolled by the GOP).

Un­der the pro­posed amend­ment, ju­di­cial nom­i­nees wouldn’t be sub­ject to the gover­nor’s ve­toes. But Democrats worry the bill is writ­ten in a way that, if passed, it would al­low the leg­is­la­ture to at­tach an un­re­lated bill to a ju­di­cial nom­i­nee to cir­cum­vent the gover­nor’s veto.

Why does it mat­ter? Repub­li­cans cur­rently hold so many seats in the state House and state Se­nate that they can over­ride most of Gov. Roy Cooper’s ve­toes.

But if Democrats break the su­per­ma­jor­ity this fall, when ev­ery seat in the leg­is­la­ture is up for elec­tion, Repub­li­cans will have a harder time im­ple­ment­ing their agenda.

Since Cooper took of­fice, he has ap­pointed 35 peo­ple in the court sys­tem – in­clud­ing district at­tor­neys and district, su­pe­rior, and ap­pel­late judges, ac­cord­ing to his of­fice.

State Sen. Jeff Jack­son, a Char­lotte Demo­crat and at­tor­ney, pro­posed a bill that would clar­ify the ju­di­cial va­cancy amend­ment to block the at­tach­ment of other bills. But Repub­li­can lead­ers didn’t con­sider it.

“Given the op­por­tu­nity to fix this – and the de­ci­sion not to – it’s pretty clear they like the idea of pass­ing a con­sti­tu­tional amend­ment that will let them cir­cum­vent a gover­nor’s veto when­ever they want,” Jack­son tweeted re­cently.

Josh Stein, the Demo­cratic state at­tor­ney gen­eral, has made the same ar­gu­ment. To sup­port Jack­son’s claim, his of­fice pro­vided an in­ter­pre­ta­tion from the Gen­eral Assem­bly’s non­par­ti­san Leg­isla­tive Anal­y­sis Di­vi­sion.

“Be­cause there is no re­stric­tion on adding other mat­ters to these ju­di­cial va­cancy bills, a court could rea­son­ably in­ter­pret that a ju­di­cial va­cancy bill and leg­is­la­tion on other mat­ters is not sub­ject to the Gover­nor’s veto. Be­cause this would be new lan­guage in the Con­sti­tu­tion if adopted this fall, a de­ci­sion on how to in­ter­pret and ap­ply that lan­guage would ul­ti­mately be made by the courts,” Kara A. McCraw, staff at­tor­ney and leg­isla­tive an­a­lyst, told his of­fice in a July 31 email.

Gerry Co­hen, a long­time for­mer head of bill­draft­ing at the leg­is­la­ture, notes how the pro­posed amend­ment is no­tice­ably dif­fer­ent from other parts of the Con­sti­tu­tion about is­sues the gover­nor can’t veto.

The N.C. Con­sti­tu­tion says the gover­nor is pow­er­less when the leg­is­la­ture adopts bills re­vis­ing elec­tion dis­tricts and “no other mat­ter.” Or when it adopts a bill that solely makes an ap­point­ment to pub­lic of­fice and con­tains “no other mat­ter.” The “no other mat­ter” lan­guage is miss­ing in this case, Co­hen said, which could be in­ter­preted as in­tent.

It’s un­clear how the law would be in­ter­preted. In rul­ing, judges look at the in­tent of the N.C. Con­sti­tu­tion’s framers as well as the in­tent of amend­ment au­thors.

In a press con­fer­ence Satur­day, Repub­li­can lead­ers said the words “no other mat­ter” aren’t nec­es­sary given the pro­posed amend­ment’s lo­ca­tion in state law.

State Sen. Ralph Hise said state law al­ready “re­quires the leg­is­la­tion to be nar­rowly tai­lored to be in ac­cor­dance with those sec­tions,” adding, “We have never seen any case where the gover­nor’s veto – the ex­emp­tion of the gover­nor’s veto – ap­plied broadly to any bill that con­tained any of these parts. We don’t be­lieve it does it.”

Phil Berger, Repub­li­can Se­nate leader and an at­tor­ney, ar­gued that his com­ments in pub­lic could be ex­am­ined by a judge re­view­ing the bill’s in­tent.

“You said that leav­ing (the words ‘no other mat­ter’) out in­di­cates in­tent. I would con­tend to you that our state­ments at this time – and state­ments you will hear on the floor that that’s not our in­tent – is more per­sua­sive, or will be more per­sua­sive as far as a judge is con­cerned, if this is­sue ever comes up,” Berger said.

He con­tin­ued: “We are telling you that our in­tent is that this con­sti­tu­tional pro­vi­sion would not be ap­pro­pri­ate to be used as the at­tor­ney gen­eral has ar­gued..”

Bob Orr, a for­mer state Supreme Court jus­tice and Repub­li­can, said a judge would likely con­sider Berger’s pub­lic com­ments.

“I’d give it weight, but smart lawyers would make the case that that’s one per­son’s opin­ion,” Orr said. The amend­ment lan­guage “doesn’t make it clear that it’s not some ve­hi­cle to cir­cum­vent the gover­nor’s veto au­thor­ity.”

Some worry that the ab­sence of the words “no other mat­ter” shows that au­thors of this con­sti­tu­tional amend­ment on ju­di­cial va­can­cies in­tend to use the pro­posed amend­ment to cir­cum­vent the gover­nor’s veto.

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