Trust of Democratic attorney general questioned by Republicans
RALEIGH — After passing politically divisive legislation on voting laws and setting in motion new abortion restrictions, North Carolina's Republican-led General Assembly has given itself the authority to defend them in court.
Last month, in a last-minute move before adjourning for the year, lawmakers inserted two sentences into legislation clarifying a new hospital-billing law that would give the state House speaker and Senate leader the option to defend a state statute or provision of North Carolina's constitution and not rely on Attorney General Roy Cooper, a Democrat.
Gov. Pat McCrory, a Republican, has until Aug. 25 to veto the measure.
Cooper hasn't refused to defend the state in any case, though counterparts in California, Illinois, and Pennsylvania said they would not defend their states' same-sex marriage bans.
GOP lawmakers don't trust Cooper to fully defend Republican initiatives in court after he publicly criticized North Carolina's constitutional ban on gay marriage as well as the voting and abortion regulations, said Rep. Paul Stam, R-Wake.
"There's some cases that other people need to present through the courts," Stam said.
Stam said his suspicion of Cooper increased when the attorney general started a petition drive urging McCrory to veto the election law changes. Cooper complained they were tailored to make it harder for people to register and vote. After McCrory signed the voting rules into law on Monday, Cooper sent a campaign email to supporters saying: "I'm appalled that the bill is now law."
Cooper previously said abortion regulations passed by GOP lawmakers and signed by McCrory would force clinics to meet excessive conditions and make it harder for doctors to perform the procedure. Cooper also opposed a legislative proposal to eliminate the need for getting a pistol permit from a local sheriff before buying a handgun. In 2011, he angered Republican lawmakers by refusing to join 26 other states in a legal challenge against the federal health care law.
Also, with rumors that Cooper is angling to run for governor in 2016, Stam said Republicans have reason to doubt the attorney general will put full effort into a federal lawsuit challenging North Carolina's year-old constitutional prohibition against same-sex marriage.
Cooper didn't dismiss the idea that he's weighing a run for governor or other office in a recent interview.
"I'm concerned that North Carolina is headed in the wrong direction, and I want to do what I can to try and change it," he said. "My ultimate duty is to the people of North Carolina, and I'm going to let them know what I think about laws that have an impact on their lives."
But Cooper said attorneys commonly go to court arguing for clients they may neither agree nor sympathize with.
"It's important for the attorney general to let people know when bad laws need to be changed. At the same time, we do have committed attorneys in this office who represent the state in court every day whether or not they think it's the best public policy. That's their job. That's their duty," Cooper said. "This office is going to continue to do its duty to defend laws. Nothing has changed."
The new law would allow legislative leaders to step in as parties involved in a lawsuit, though judges would have a final say on their involvement.
Laws authorizing lawmakers to defend their work with outside attorneys are already in force in Alaska, Arizona, Colorado, Nevada, Oklahoma, and Texas, according to a memo from attorneys with the General Assembly's non-partisan research division. Courts in New Jersey and Minnesota have allowed legislative leaders to intervene in litigation even though state laws didn't explicit say they could, researchers said.
Judges are inclined to allow legislators defend a law if an attorney general or others won't, Wake Forest University constitutional law professor Eugene Mazo said.
North Carolina law allows governors and state agencies, with the governor's permission, to hire outside attorneys if the attorney general finds it "impracticable" to provide legal services. The state Supreme Court said in 1987 that governors can hire legal help without the advice of the attorney general.
The legislature also has hired outside attorneys to represent lawmakers over challenges to the General Assembly's redistricting of state and federal legislative districts, and in a long-running lawsuit by poor school districts over funding. Legal bills totaled $1.8 million in the past two years.
If Cooper and legislative leaders end up on opposite sides of whether courts should uphold a state law, "it's not hard to appreciate that this could all result in some confusion," said Michael Crowell, a professor at the School of Government at the University of North Carolina at Chapel Hill who specializes in judicial authority.
"It seems pretty clear that the attorney general is the lawyer for the state in all cases. What's been disputed in other states and not here is whether that's exclusive — whether only the attorney general can represent the state," he said.