Gov. Pat McCrory has indicated in a court filing seeking legislative privilege that he had more to do with the preparation and introduction of House Bill 2 than he previously let on.
In a speech a little over a month ago, McCrory claimed the North Carolina Chamber helped write part of the state’s all-purpose LGBT discrimination law. The lobby group, however, has denied participating in suggesting, drafting or reviewing HB2.
It has not yet been made clear who actually wrote the legislation, what all of the motives were or how it came to fruition, but in his request for legislative privilege in the case of Carcaño v. McCrory, the governor argues that he is protected from being questioned about HB2 because of his involvement in the legislative process.
“Because ‘[t]he privilege protects the legislative process itself,’ it ‘therefore covers both governors’ and legislators’ actions in the proposal, formulation, and passage of legislation,” the document states.
McCrory’s office and attorneys did not return emails seeking comment about the memorandum and his involvement with HB2.
Legislative privilege is a legal immunity that protects legislators from criminal or civil liability for anything said or done during the course of their legislative duties. It’s often used in voting rights cases as a way for legislators to conceal their communications and motives when a law is passed.
HB2 was passed in March during a one-day special session called to deal with a Charlotte non-discrimination ordinance that extends protections to lesbian, gay, bisexual and transgender people.
The memorandum in Carcaño was filed in late September and seeks to protect McCrory, the state of North Carolina, the Department of Public Safety and two legislators who willingly intervened in the lawsuit, Senate President Pro Tempore Phil Berger and House Speaker Tim Moore.
The ACLU of North Carolina argues in a response filed last week that Berger and Moore waived legislative privilege by voluntarily intervening in the lawsuit to defend legislation. It also states that the legislators’ request for privilege is a “complete reversal” of the position they took in asking the court to intervene in the lawsuit in the first place.
“In their own words, Senator Berger and Speaker Moore sought to ‘vigorously defend’ against Plaintiffs’ ‘critici[sms of] the legislative process used in passing [H.B. 2], as well as the statements, motives and actions of various legislators involved – including specifically Speaker Moore and Senator Berger. No existing defendant has Intervenors’ familiarity with the genesis of the Act,” the response states.
In its court filing, the ACLU also maintains that the rest of the defendants’ argument “utterly failed” to meet the burden required to prevent discovery into their motives in enacting HB2 and any procedural irregularities that may have occurred during the process.
“It’s disgraceful that the lawmakers defending HB2 in court refuse to answer questions about why they passed it in the first place,” said ACLU-NC legal director Chris Brook. “North Carolinians deserve to know why their legislators called an emergency session to enact such a discriminatory and disastrous law.”
Jonathan Jones, director of the NC Open Government Coalition, said the ruling on legislative privilege could prove to be “very, very important” to the outcome of Carcaño v. McCrory.
He said the memorandum seeks to extend legislative privilege further than the law permits. It also seems to imply that the privilege is an absolute. North Carolina does not have a statutory or constitutional privilege, and McCrory and the other defendants are relying on a common law privilege that is not guaranteed.
Jones said the ACLU has a strong argument that Berger and Moore waived their privilege by joining the lawsuit. He also said that the governor is not a party to the legislative process and therefore cannot claim privilege.
“The governor is on record saying the Chamber of Commerce wrote the bill,” Jones added. “If a third party did write the bill, how does legislative privilege apply to any of them, but especially the governor?”
Legislative privilege, he said, is important when used correctly to allow the legislative body to function and make decisions. In this case, the defendants have an uphill battle to prove that answering questions or turning over documents regarding the motive behind HB2 would harm the legislative process in the future.
Jones said motive is of particular importance when dealing with a question about an intentional violation of individuals’ civil rights, and if legislative privilege is granted in this case, North Carolinians will likely never know how or why the bill was enacted.
“If privilege is granted, we prevent (lawmakers) from ever having to be held accountable in any way when the voters send them off to Raleigh,” Jones said. “The heart of this case is, why did they enact this law? They ought to have to answer for that at some point.”
It should also be noted, Jones said, that many of the documents the ACLU has asked for and that McCrory and others are trying to claim privilege for are public documents, including legislators’ communications with McCrory, state agencies and with third parties.
“I don’t think legislative privilege would apply to much in this case,” he said.
Melissa Boughton is the courts and law reporter for NC Policy Watch.