A Superior Court judge rejected arguments by “Moral Monday” protesters who contended that rules used to arrest them at the North Carolina Legislative Building in 2016 were illegal.
Judge Carl Fox found after a brief hearing Monday inside a Wake County Superior Court room that North Carolina General Assembly members had the authority to delegate rule-making to a Legislative Services Commission that sets boundaries for where people can go, what they can do and how much noise they can make while inside the building where lawmakers conduct their business.
The decision means that Carol Anderson and Dale Herman, the Durham residents who challenged the constitutionality of the Legislative Building rules, will move to a full trial to determine whether a district court judge’s ruling finding them guilty of misdemeanor trespass charges will stand.
Anderson and Herman were among a crowd of protesters who were arrested by General Assembly police in May 2016, protesting House Bill 2, the controversial “bathroom law” that since has been partially repealed.
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In January 2017, a district court judge found Anderson and Herman guilty of trespass charges after they refused to leave the Legislative Building until General Assembly police put them under arrest, cuffed them with zip ties and took them to jail.
Though General Assembly police also charged Anderson and Herman with violating Legislative Building rules, the same district court judge who found them guilty of trespass tossed out the alleged violation of building rules, calling them overly broad and vague.
“What I call ‘private prosecution’”
Prosecutors appealed that decision to Superior Court, a move that brought together an unusual group behind the Wake County district attorney’s table on Monday.
Nishma Patel, an assistant Wake County district attorney, handled arguments for the state, urging Fox not to dismiss the cases against the protesters. To her left was former state Supreme Court Justice Bob Edmunds, who was representing Paul Coble, head of the Legislative Services Commission.
In a request rebuffed earlier this month by Fox and again on Monday, Coble and Edmunds sought to have a say in the criminal case.
Edmunds filed a petition late last year asking the court to let lawmakers and Coble intervene in a criminal case, an unusual request that Fox rejected in an order. Then on Monday, Edmunds again asked to have a say in the case through a “friend of the court” brief. That’s a practice commonly used in civil cases but a rare request in a criminal case, one that Fox likened to an era gone by.
“It sort of reminds me of what I call ‘private prosecution’ and we stopped that years ago,” Fox said.
Fox peered over the bench at Patel and asked: “If someone has something to voice, they can voice it through you.”
Patel nodded her head in agreement.
Edmunds had argued in briefs filed in the protesters’ cases that a ruling against the building rules could have sweeping impact on the Legislative Services Commission, which also is responsible for paying bills and cutting paychecks.
“We will be back”
If the court had found the rules unconstitutional, Fox said ahead of his ruling, the next steps would be the same for lawmakers as anyone else.
“And that is go back to the legislature and fix it,” Fox said.
Scott Holmes, a Durham-based lawyer representing the protesters, tried to persuade Fox that lawmakers should have taken a different route when amending the building rules through a commission that could make decisions without a majority of its members there. He argued that two lawmakers — the House speaker and the Senate leader — changed the rules before the 2016 protest.
Holmes contends the commission failed to follow rulemaking processes that call for public notice, public hearings and an analysis of legal authority for the rule being considered.
Holmes also raised questions about the constitutionality of the General Assembly having its own police force that has the power to arrest and is supervised by lawmakers.
“If the General Assembly wanted to pass a law making it a misdemeanor to cause a disturbance in the Legislative Building, the General Assembly could follow the procedures set forth in the North Carolina Constitution for the passage of laws in the House, the Senate, and signature by the Governor,” Holmes stated.
But Patel argued that it was decades ago when the General Assembly adopted a law that left the rulemaking for the public building to the Legislative Services Commission, as well as set up a General Assembly police force.
Fox pointed out other examples such as a school superintendent being able to create rules for school campuses, and a health commission with the power to decide which drugs go in certain tiers of a criminal classification system that determines the harshness of potential penalties.
After the hearing on Monday, the Rev. T. Anthony Spearman, head of the state NAACP, insisted that the judge’s ruling would not stop protests of policies, laws and actions by the General Assembly.
“We will be back,” Spearman said.