Before Jackson takes office, NC GOP moves to curb powers of attorney general’s office

Incoming Democratic Attorney General Jeff Jackson would enter office in January with significantly constrained and revised powers under wide-ranging legislation GOP state lawmakers rushed to the House floor Tuesday.

The far-reaching bill, which was released publicly Tuesday evening, several hours after a draft was obtained by The News & Observer and other news outlets in the morning, proposes making several changes and cuts to the powers of multiple statewide offices that were won by Democrats earlier this month, including governor, attorney general, and state superintendent of public instruction.

Republican lawmakers want to prevent the attorney general, an office that the GOP hasn't won in an election for more than a century, from taking positions on state laws being challenged in court that are different from the position maintained by GOP legislative leaders.

The bill also specifies that the attorney general can't take positions in court that would lead to a state law being struck down.

This proposal comes as outgoing Democratic Attorney General Josh Stein, who voters chose to serve as the state's next governor in this month's election, has recused himself or refused to defend the state against a number of high-profile political lawsuits involving abortion, elections, gerrymandering and other issues.

Stein, who has served two terms as attorney general, has defended his decisions to refuse to defend laws passed by the Republican-controlled legislature that he believes are unconstitutional.

GOP leaders have criticized Stein in those instances, and accused him of refusing "to do his job." They have frequently intervened in lawsuits challenging the laws they've passed, and defended them in court.

Liz Barber, the director of policy and advocacy at the ACLU of North Carolina, said in an interview Tuesday morning that the changes were an "unconstitutional, undemocratic power grab."

"The people of North Carolina spoke," Barber said. "They spoke very clearly two weeks ago when they elected the governor, the attorney general, and the superintendent of schools, and what we're seeing is the General Assembly essentially saying that they don't care who the people of North Carolina elected."

Barber said the "most egregious" example of a "power grab" could be the prohibition on the attorney general taking a different stance on the validity or constitutionality of a state law being challenged in court, than the position of legislative leaders.

"When the attorney general was elected, he was elected to uphold the Constitution of North Carolina, and if and when he thinks that the North Carolina General Assembly has violated the Constitution, he is bound, he is duty bound, to take action on behalf of the people of North Carolina."

What the bill says Under the proposal, Jackson, who will be sworn into office in January, would not be "authorized to take any position on behalf of the State of North Carolina that is contrary to or inconsistent with the position of the General Assembly" whenever state laws are challenged in court.

The bill goes on to specify that in situations in which legislative leaders hire private attorneys to defend laws challenged in court, those attorneys are considered to be lead counsel — as current law already states — and "shall possess final decision-making authority with respect to the positions taken on behalf of the State, as well as the representation of, counsel to, or service provided to the State."

Another change to the office's powers limits "participation in foreign litigation" and states that the attorney general "shall not, as a party, amicus, or any other participant in an action pending before a state or federal court in another state, advance any argument that would result in the invalidation of any statute enacted by the General Assembly."

Most Democrats were waiting on Tuesday to see the final version of the bill before they commented on it.

Stein, who spent the day in Western North Carolina, said in a social media post that the proposed changes amounted to Republican lawmakers "grabbing power and exacting political retribution."

In a statement Tuesday evening, Jackson said his mission as attorney general "is to stand up for people," and added that he and his team "will overcome any obstacle to accomplish that mission."

"The bill under consideration should be focused on Helene response to help our people," Jackson said. "It shouldn't be used to sneak through major policy changes that shift power toward the General Assembly. I'm sure there will be many ways to work with the General Assembly and I look forward to meeting with them to discuss those opportunities once I'm sworn in."

Other provisions of the bill would take away the governor's power to make appointments to the State Board of Elections, and give it to the state auditor, a position that was won by a Republican, Dave Boliek, earlier this month after 16 years of control by Democrats.

It also allocates funding to state agencies and programs, reshuffles certain agencies, and includes additional financial relief for people impacted by Hurricane Helene, among several other changes.

House Republicans spent much of Tuesday caucusing and holding leadership elections, in which they formally chose Rules Committee Chairman Destin Hall to serve as their next leader, and the chamber's speaker, next year. They convened Tuesday afternoon to take up a few bills and override Gov. Roy Cooper's veto of a budget bill that included immigration enforcement provisions and funding for private school vouchers, and then went back to caucus.

An official copy of the 131-page bill was released publicly just before 5:40 p.m. The House came back to debate it soon after 6 p.m. and concluded shortly after 8 p.m.

Speaking to reporters after the House passed the bill Tuesday night, Hall said that the main provision barring the attorney general from taking a different position when defending state laws in court was a longstanding issue that lawmakers were seeking to address.

"We pass laws, and sometimes we get into lawsuits, and the AG takes a position that's contrary to the state, which is, again, the lawmaking body, the General Assembly — and in my law practice, if I have a client, which the AG is supposed to represent the state, if I take a position contrary to my client, it usually doesn't work out very well," Hall said.

What Stein has done Some of the most high-profile cases and instances where Stein has taken a different stance than GOP leaders have involved abortion law.

After the U.S. Supreme Court struck down Roe v. Wade in 2022, Republican leaders called on Stein to reinstate the state's existing 20-week abortion ban that had been previously blocked.

Stein denied their request, saying in a statement at the time that the N.C. Department of Justice wouldn't "take action that would restrict women's ability to make their own reproductive health care decisions."

A year later, after Republicans regained a supermajority in the legislature and passed a stricter law banning most abortions after 12 weeks, the law was challenged in federal court by Planned Parenthood.

Stein refused to defend the provisions of the law being challenged , saying in a court filing that they were "riddled with incoherence and uncertainty."

The bill also strips the attorney general's office of the ability to automatically intervene in matters before the N.C. Utilities Commission.

This would impact cases where the commission determines how much Duke Energy's utilities can charge for electricity and how it can generate power in North Carolina. Under Stein, the office has frequently intervened and participated in such cases.

If the bill passes, the Attorney General's Office would need to file a petition explaining why it wants to intervene in the case, just as environmental groups, business advocacy organizations and municipal utilities do now. That's a change from the status quo, where the office just needs to file a notice saying it is intervening on behalf of the public that uses and consumes power.

Stein has an ongoing appeal in front of the N.C. Supreme Court challenging a Utilities Commission order that would increase Duke Energy Carolinas' bills by about 15% over a three-year period.

To appeal a Utilities Commission order adjusting rates, as Stein has, a party must first be an intervenor in the case. Should the Utilities Commission decide the Attorney General's Office is ineligible to intervene, it would be unable to file such an appeal.

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