​Members of Poyner Spruill’s Litigation Section, former North Carolina Supreme Court Justice Bob Orr and attorney Drew Erteschik, have secured a preliminary injunction for the North Carolina Association of Educators and its members in what has been commonly known as the “Midnight Madness” case.

In June 2011, the General Assembly ratified a bill that would prevent members of the NCAE from having their dues deducted automatically from their paychecks.  In 2011, however, Governor Perdue vetoed the bill, thereby requiring the General Assembly to reconsider the bill for a legislative override.  In the early morning hours of January 5, 2012, in what has been referred to as the “Midnight Session,” the General Assembly voted to override the Governor’s veto and enacted the new law shortly after 1:00 a.m.

Represented by Orr and Erteschik, the NCAE immediately filed suit, alleging that the new law was unconstitutional and seeking a preliminary injunction to block the law from taking effect.  The state moved to dismiss the lawsuit on various grounds.

The case was set for hearing on March 30, 2012.  The parties submitted extensive briefs, and the League of Women Voters and the Police Benevolent Association also filed amicus briefs in support of the NCAE.  After considering the sworn statements in the NCAE’s Complaint, reviewing the parties’ briefs, and hearing oral argument by Orr and Erteschik, the Wake County Superior Court on May 16, 2012 denied the state’s motion to dismiss the lawsuit and issued a preliminary injunction blocking the new law from taking effect.

The court rejected all of the state’s arguments that the lawsuit should be dismissed and ruled that the NCAE and its members are likely to succeed on all of their claims that the new law violates the North Carolina Constitution.  The court held that the NCAE was likely to succeed on its claims that the law is unconstitutional because the General Assembly enacted the law in an unconstitutional midnight session, did not adjourn to a future day as required by the North Carolina Constitution, and did not proceed to reconsider the vetoed legislation as required by the North Carolina Constitution.  The court also found that the NCAE was likely to succeed on its claim that the law was unconstitutional because it amounted to retaliatory viewpoint discrimination in violation of the Free Speech Clause of the North Carolina Constitution.

Orr and Erteschik have recently represented several clients in high-profile state constitutional and government-related litigation matters.  During the same week they argued the NCAE matter, they argued in another case that a new annexation law was unconstitutional because it created a referendum in which only property owners could vote and improperly delegated the legislature’s power to private landowners.  After briefing and argument by Orr, Erteschik, and a coalition of municipal attorneys, the court agreed, striking down the annexation law under the North Carolina Constitution on all counts set forth in the complaint.