North Carolina § 120-32 - 6. Certain employment authority.

§ 120-32. 6. Certain employment authority.

Use of Private Counsel. - G.S. 114-2.3, 143C-6-9(b), and 147-17(a) through (c1) shall not apply to the General Assembly. General Assembly Acting on Behalf of the State of North Carolina in Certain Actions. -. Whenever the validity or constitutionality of an act of the General Assembly or a provision of the Constitution of North Carolina is the subject of an action in any State or federal court, the Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, shall be necessary parties and shall be deemed to be a client of the Attorney General for purposes of that action as a matter of law and pursuant to Section 7(2) of Article III of the North Carolina Constitution. In such cases, the General Assembly shall be deemed to be the State of North Carolina to the extent provided in G.S. 1-72.2(a) unless waived pursuant to this subsection. Additionally, in such cases, the General Assembly through the Speaker of the House of Representatives and President Pro Tempore of the Senate jointly shall possess final decision-making authority with respect to the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution. In any such action, the General Assembly, through the Speaker of the House of Representatives and the President Pro Tempore of the Senate, may waive such representation and decline to participate in the action by written notice to the Attorney General. General Assembly Counsel Shall Be Lead Counsel. - In those instances when the General Assembly employs counsel in addition to or other than the Attorney General, the Speaker of the House of Representatives and the President Pro Tempore of the Senate may jointly designate the counsel employed by the General Assembly as lead counsel in the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution. The lead counsel so designated shall possess final decision-making authority with respect to the representation, counsel, or service for the General Assembly. Other counsel for the General Assembly shall, consistent with the Rules of Professional Conduct, cooperate with such designated lead counsel. The rights provided by this section shall be supplemental to those provided by any other provision of law. Notwithstanding any other provision of law, the participation of the Speaker of the House of Representatives and the President Pro Tempore of the Senate in any action challenging the validity of a North Carolina statute or provision of the North Carolina Constitution under State or federal law, as a party or otherwise, shall not constitute a waiver of legislative immunity or legislative privilege of any individual legislator or legislative officer or staff of the General Assembly. History (2006-201, s. 3; 2011-145, s. 22.5; 2014-100, s. 17.3A(a); 2017-57, s. 6.7(g), ( l ).) Editor's Note. - Session Laws 2006-201, s. 25, made this section effective October 1, 2006, and applicable to covered persons and legislative employees, to gifts received, to acts and conflicts of interest that arise, and to offenses committed, on or after January 1, 2007. Prosecutions for offenses or ethics violations committed before January 1, 2007, are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. Session Laws 2006-201, s. 23(a), (b), provides: "(a) Persons holding covered positions on January 1, 2007, shall file statements of economic interest under Article 3 of Chapter 138A of the General Statutes by March 15, 2007. "(b) Public servants holding positions on January 1, 2007, shall participate in ethics education presentations under G.S. 138A-14 on or before January 1, 2008." Session Laws 2006-201, s. 24, is a severability clause. Session Laws 2017-57, s. 6.7(o), made the amendment to this section by Session Laws 2017-57, s. 6.7( l ), effective June 28, 2017, and applicable to pending and future actions. Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Effect of Amendments. - Session Laws 2011-145, s. 22.5, effective July 1, 2011, substituted "G.S. 147-17(a) through (c)" for "G.S. 147-17." Session Laws 2014-100, s. 17.3A(a), effective August 7, 2014, inserted "(a) Use of Private Counsel" at the beginning of subsection (a) and added subsections (b) through (d). Session Laws 2017-57, s. 6.7(g), effective July 1, 2017, substituted "G.S. 114-2.3, 143C-6-9(b), and 147-17 (a) through (c1)" for "G.S. 114-2.3 and G.S. 147-17 (a) through (c)" in subsection (a). Session Laws 2017-57, s. 6.7( l ), rewrote subsection (b) which formerly read: "General Assembly as Client of Attorney General by Operation of Law. Whenever the validity or constitutionality of an act of the General Assembly or a provision of the Constitution of North Carolina is the subject of an action in any State or federal court, if the General Assembly hires outside counsel to represent the General Assembly in connection with that action, the General Assembly shall also be deemed to be a client of the Attorney General for purposes of that action as a matter of law. Nothing herein shall (i) impair or interfere with the rights of other named parties to appear in and to be represented by the Attorney General or outside counsel as authorized by law or (ii) impair the right of the Governor to employ counsel on behalf of the State pursuant to G.S. 147-17 ."; substituted "in the defense of the challenged act of the General Assembly or provision of the North Carolina Constitution." for "for the General Assembly." in subsection (c); and added subsection (e). For effective date and applicability, see editor's note. Legal Periodicals. - For comment, "A Defense of the Defense: An Analysis of the North Carolina Attorney General's Legal Ability to Refuse to Defend State Laws,” see 96 N.C.L. Rev. 1855 (2018).