Republicans point to previous proposals in defending special session bills

Power struggle underway in Raleigh
Published: Dec. 15, 2016 at 5:42 AM EST|Updated: Dec. 15, 2016 at 6:50 PM EST
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RALEIGH, NC (WBTV) - Republican leadership in the North Carolina General Assembly unveiled a raft of new proposals Wednesday night that would alter the way state government is currently administered.

The new proposals come amidst a fourth special session of the North Carolina General Assembly, which was unexpectedly announced early Wednesday afternoon. The fourth special session comes immediately on the heels of the legislature's third special session that was called by Gov. Pat McCrory to allocate funding to assist those impacted by the flood from Hurricane Matthew and the wildfires in the western part of the state.

Many people—including staffers, lobbyists and some lawmakers themselves—spent most of Wednesday waiting to find out what, exactly, Republicans planned to accomplish in the unexpected special session.

The answer came through a series of bills filed in the House and Senate Wednesday evening.

Most of the proposals originating in the Senate are included in one bill that makes changes to elections and the state's appellate courts.

Proposals from Republican leadership in the House were spread across a number of different bills and include major changes to the way the North Carolina Department of Public Instruction is administered, the way governors appoint cabinet officials and the number of political employees that can be hired by the governor, among other things.

Prior to the legislation being unveiled Wednesday night, Republican lawmakers and staffers had said they were reviewing legislation previously promulgated under Roy Cooper during his time as a lawmaker. A review of some legislation passed in the mid- to late-1990s found that claim to hold up with regard to some of the new proposals.

Change to appellate court procedures

One provision of the legislation introduced in the Senate would allow the North Carolina Court of Appeals to hear cases as a full court; a procedure known as sitting en banc.

Currently, the Court of Appeals only hears cases in three judge panels. A case can be appealed from the Court of Appeals to the North Carolina Supreme Court, which hears and decides cases as a panel of seven.

As it currently stands, cases that are unanimously decided by the three-judge Court of Appeals panel must be granted special review by the Supreme Court in order to be heard; something that is seldom given.

The Senate's new proposal to allow the Court of Appeals to sit en banc would add an additional level of appellate review by giving losing parties the ability to request the case be heard by a panel made up of all 15 Court of Appeals judges.

Such a proposal more closely aligns with how federal appellate courts operate, which allow for the Court of Appeals to hear cases en banc after a decision from a three-judge panel.

The en banc proposal also comes on the heels of a controversial rule implemented and later rescinded by the Supreme Court aimed at avoiding tied decisions.

Chief Justice Mark Martin recently attempted to implement a new rule to avoid such situations by allowing a temporary judge to be appointed in place of the justice who had to recuse themselves.

That rule was rescinded weeks later amid questions and controversy.

A similar en banc proposal was originally introduced in 1999, legislative records show. Cooper is listed as a sponsor of the bill.

Records show the proposal was approved by the Senate but never got a vote in the House.

Superintendent of Public Instruction to get more powers

Legislation introduced Wednesday night also aims to expand the powers of the North Carolina Superintendent of Public Instruction.

The superintendent is an elected position and serves as a member of the Council of State but has very little day-to-day authority in running the North Carolina Department of Public Instruction.

Republican Mark Johnson beat incumbent Democrat June Atkinson in November to become the next Superintendent of Public Instruction.

Under the new legislation, Johnson will gain additional oversight powers in his chamber that currently reside with the State Board of Education.

Legislative records show the General Assembly approved a similar bill in 1995 when Democrats controlled the Senate.

Control of NCDPI was later moved largely from the Superintendent of Public Instruction to the State School Board in different legislation.

Governors' appointments, political hiring curtailed

Another proposal in House Bill 17, which also contains the provisions expanding power of the Superintendent of Public Instruction, limits the number of political employees that the governor can hire.

When Pat McCrory took office, the general assembly changed the law and allowed him to hire up to 1,500 political employees—or those subject to being hired and fired at the will of whoever is in office—across executive branch agencies overseen by the governor.

Under the new proposal in HB17, that number would shrink to 300.

If HB17 is to become law as currently written, it will not be the first time the legislature has legislated cuts to political hiring.

A law passed in 1997, when Roy Cooper was the Senate Majority Leader, capped the number of political employees at just 100.

"The legislature is trying to violate the will of the people, by declaring that Governor-Elect Cooper will only be able to declare 300 state employees exempt, 1,200 employees fewer than Governor McCrory was afforded in 2013, and 100 fewer than under Gov. Perdue," Jamal Cooper, a spokesman for the North Carolina Democratic Party, said in a statement reacting to the proposals unveiled Wednesday night.

Another provision of HB17 would require the Senate to confirm agency heads appointed by the governor.

Currently, the governor appoints secretaries to run executive branch agencies without any oversight. Under the new proposal, cabinet secretaries will require approval by the senate.

A review of bills voted on during Cooper's tenure as Senate Majority Leader did not find a basis for such a move in previous legislation.

The proposal has already been criticized by Democrats in their list of "top 6 NCGOP power grabs" emailed Wednesday night.

Little, the NCDP spokesman, referred to Senate confirmation as "an unprecedented infringement on the discretion given to North Carolina's governors to pick their own cabinets."

Republicans' proposed bills include other changes

Other proposals included in the bills introduced by Republican leadership Wednesday night include efforts to re-organize the North Carolina State Board of Elections, implement a series of regulatory reforms and return state judicial races to having a party affiliation.

A majority of the bill introduced in the Senate focuses on the re-organization of the elections board.

Currently, the board is made up of five members. Three of the members belong to the party of the sitting governor. County elections boards are made up of three members, two of which belong to the same party as the governor.

Under the new proposal, the board would be expanded to eight members—four members from each of the two major parties—and would have oversight of ethics and lobbying compliance in addition to administering elections and enforcing compliance with the state's elections laws.

The majority vote on the new board would require six of the eight members.

The Senate bill would also return statewide judicial races to partisan contests, where candidates are identified by party affiliation.

Statewide judicial candidates used to be elected by party affiliation until Democrats changed the system after a series of wins by Republicans.

I-77 legislation introduced

Members of the General Assembly proposed other bills not in coordination with Republican leadership.

A trio of Mecklenburg County lawmakers—Representatives Tricia Cotham, John Bradford and Justin Moore—filed two bills aimed at stopping the I-77 toll project.

It remains unclear whether either of the bills will receive a hearing in committee or reach the House floor for a vote.

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