Legislative leaders Choose Litigation over Choose Life plate

Legislative leaders Choose Litigation over Choose Life plate

- in Law and the Courts


House Speaker Thom Tillis and Senate President Pro Tem Phil Berger may still be battling over budgets, but they’ve found plenty of common ground when it comes to protecting controversial laws they’ve shepherded through their chambers these past few years.

The legislative leaders paved their way into the courthouse last session by pushing into passage a bill that allows them to intervene in lawsuits and defend challenged state laws – a task typically undertaken by the state’s elected attorney general.

Since securing that right, Tillis and Berger have jumped into a number of the many court actions filed in response to the General Assembly’s actions last session, often at taxpayer expense.

It’s not because they’ve been named parties in those lawsuits and have to appear – they haven’t been.

It’s not because the attorney general is refusing to defend the state in those actions – he is.

It’s simply that they’re unhappy with the direction that those cases might be headed and are unwilling to accept the possibility that laws they’ve promoted might be struck down by the court.

And by injecting themselves into those cases, they’ve created confusion over who’s being defended and incurred unnecessary litigation expenses given the defense already being provided to the state.

They’ve also set afoot a dangerous precedent of usurping the role of the state’s elected attorney general.

The idea of allowing the legislature to just go running into court is a guaranteed way to result in lots of flailing-around lawsuits, and is just using the courthouse to continue the legislative session, which to my way of thinking is a very bad idea,” said James Tierney, the former Maine Attorney General who now runs the National State Attorneys General Program at Columbia Law School.


The law giving legislative leaders the right to intervene in actions challenging state laws had its genesis in concerns over statements made by Attorney General Roy Cooper about issues popping up in the General Assembly during the long session.

Cooper hadn’t refused to defend state laws in any pending actions — as the Pennsylvania Attorney General had done in response to that state’s same-sex marriage ban or the Indiana Attorney General did in response to a challenge to state immigration laws.

But he had openly opposed provisions of a gun bill eliminating permits for handguns and questioned the merits of provisions of the abortion bill. He also called new voting changes unnecessary, expensive, burdensome and likely to lead to costly litigation and asked the governor to veto them.

Such questioning of proposed laws and advice to the governor is entirely consistent with the role and duties of an attorney general, as would be a refusal to defend a law deemed unconstitutional.

An attorney general is, above all else, obliged to uphold the constitution, Tierney said, and to that end should scrutinize – and possibly not defend — laws that might be popular yet flawed.

The simple truth is that attorney general refusal to defend happens all the time,” he explained in an earlier Washington Post article. “Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the attorney general to clean this mess up.”

Duty aside, the possibility of that happening in North Carolina apparently unhinged GOP lawmakers at the end of the long session and led to the midnight-hour, party-line passage of Senate Bill 473, giving the Senate President Pro Tem and the Speaker of the House standing, on behalf of the General Assembly, to intervene in lawsuits challenging state laws.

With all these public political statements, we want to have an option in case [Cooper] doesn’t vigorously defend the statute and the laws of North Carolina when they are taken to court,” Rep. Paul (“Skip”) Stam told the Winston-Salem Journal after the bill’s passage.


Since the passage of that bill, Tillis and Berger have popped up in a number of lawsuits in which state laws have been challenged as unconstitutional.

They’re two of several lawmakers who’ve asked the federal judge in pending voting law challenges to keep secret emails and other communications generated while debating voting changes.

They attempted to intervene in the state court action challenging the school voucher program this past spring when that case landed before the Supreme Court over questions about the lower court’s order blocking implementation of that program pending a trial.

Although the high court dismissed their request as moot when it reversed the lower court’s order, the legislative leaders are once again trying to participate in the voucher lawsuit, this time asking Wake County Superior Court Judge Robert Hobgood to let them in on the eve of a scheduled trial.

And most recently, they’ve petitioned the U.S. Supreme Court for a review of the Fourth Circuit decision  rejecting the state’s “Choose Life” license plate as unconstitutional viewpoint discrimination.

That request follows on the heels of an apparent decision by the Attorney General not to pursue an appeal, suggesting that state leaders find a legislative solution instead.

As reported by the Associated Press:

In an April 30 email to staffers for Tillis and Berger, Chief Deputy Attorney General Grayson Kelley said the appeals court ruling was consistent with case law and recent decisions handed down by other judges. The 4th Circuit struck down a similar South Carolina law in 2004 and the Supreme Court subsequently declined to hear the case.

Kelley said state taxpayers would likely be required to pay any further legal fees incurred by those challenging the law. Rather than continue the fight in court, he urged the legislative leaders to draft new legislation in the current session.

“I encourage you to consider that option, if possible, as an efficient way to resolve the issues raised in this litigation,” Kelley wrote.

Tillis and Berger have rejected that advice and are moving forward in the Supreme Court with the assistance of the controversial Alliance Defending Freedom (formerly the Alliance Defense Fund), an organization formed as the antidote to the American Civil Liberties Union.

With a hefty war chest (their 2012 Form 990 shows grants and contributions of nearly $40 million) and a growing corps of trained lawyers, the ADF is best known recently for its nationwide fight against same-sex marriage.

Jeffrey Toobin recently profiled its senior counsel Austin Nimocks in the New Yorker, opening with this:

You think you’ve got a tough job? Try opposing same-sex marriage in the federal courts these days. That’s what Austin Nimocks does for a living (among other things). Nimocks is senior counsel for a conservative public-interest group called the Alliance Defending Freedom, which is devoted to protecting religious liberty. In recent years, the organization has been a principal legal defender of what it calls “traditional marriage.” Things have not been going so well lately.

Whether the Supreme Court will again consider an abortion-related issue and review the state’s decision to offer a pro-life license plate but not a pro-choice one is a decision that will likely come in the fall – coincidentally, just as state voters are deciding whether to elect Tillis to a seat in the United States Senate.