On Wednesday, the General Assembly will convene in Raleigh for a special session to discuss a controversial Charlotte ordinance that requires places of public accommodation to allow anyone to use whatever restroom they choose based on their self-identified gender. In passing this law, however, the city of Charlotte purported to exercise power that it simply does not have. The constitution, statutes, and case law of North Carolina make this clear.
A special session repealing the ordinance is certainly the fastest way to deal with the situation. Nonetheless, it is worth noting that Charlotte’s purported “non-discrimination” ordinance is unconstitutional on its face, and is therefore completely void as a matter of law.
Under Article VII, Section 1 of the North Carolina Constitution, cities and towns exist at the pleasure of, and derive all of their powers from, the State of North Carolina. Cities have no inherent powers, but instead have only those powers delegated to them by legislative enactment. However, G.S. 160A-4 does require that courts broadly construe any grant of power to a city. Our appellate courts have shed light on exactly how these constitutional provisions and statutes work out in practice.
In 1977, the city of Goldsboro passed a resolution to annex Seymour Johnson Air Force Base. The federal government had ceased providing certain emergency services to the base, and so Goldsboro annexed the area in order to provide these services. The federal government did not object to the annexation. The Supreme Court of North Carolina held in 1978 that the annexation was legal, but only because it was done in accordance with the city’s grant of power from the General Assembly to annex nearby lands in order to provide emergency services.
Thirty years later, in 2008, the North Carolina Court of Appeals considered a challenge by the City of Asheville to a statute revoking its authority to charge higher rates to water consumers located outside its corporate limits than those located within those limits. The city argued in part that when it acts in a “proprietary capacity,” it should be treated as a private actor, not as a municipality. The Court of Appeals rejected this argument, holding that a municipality like Asheville is a creature of the state with no inherent powers other than those expressly conferred or necessarily implied through grants of power from the General Assembly.
In 2014, the Supreme Court of North Carolina considered a Chapel Hill ordinance banning the use of cell phones while driving within city limits. The issue before the Court was whether Chapel Hill exceeded its power by passing the ordinance. The Court noted that G.S. § 160A-174 grants cities broad ordinance-making power. However, whenever state law and a city ordinance come into conflict, the city ordinance must be struck down as unconstitutional. The Court found that the General Assembly had repeatedly passed laws aimed at reducing the dangers associated with mobile phone usage on roads, and therefore the State had preempted any municipal regulation in the field of mobile phone use by drivers. The Court therefore found the Chapel Hill ordinance unconstitutional and invalid. Writing for the majority, Justice Paul Newby stated:
In conclusion, we recognize municipalities’ need to protect their citizens, but we are unwilling to construe our General Statutes to give municipalities unfettered power to regulate in the name of health, safety, or welfare, as there is nothing in government more dangerous to the liberty and rights of the individual than a too ready resort to the police power.
Applying these principles to the Charlotte ordinance, it is clear that the city has overstepped its bounds. Charlotte is a mere creature of the state, with only those powers granted to it by the General Assembly. While it has broad general ordinance-making power, these ordinances may not conflict with state law or occupy an area preempted by the legislature. The “bathroom ordinance” purports to create protected classes by prohibiting discrimination against gay and transgender individuals. But this area of regulation is clearly preempted by the legislature, which has passed numerous laws and constitutional provisions on discrimination against protected classes in places of public accommodation. Just a few such laws include the Persons with Disabilities Protection Act, North Carolina’s Civil Rights Act, the State Fair Housing Act, and the Equal Employment Practices Act. Put simply, the city of Charlotte lacks the power to create protected classes because this field has clearly been occupied by the General Assembly. Charlotte’s non-discrimination ordinance is therefore unconstitutional.
But if the ordinance is invalid, why call a special session of the legislature instead of challenging it in court? The answer is twofold. First, the General Assembly wants to send a clear message to any other municipalities considering similar ordinances that this sort of behavior by Charlotte will not be tolerated. Second, invalidating the ordinance during a special session is a much more expedient way of dealing with the issue than a lawsuit, which could take months or even years to be resolved.
The General Assembly should be careful, however to make it plain that it is not implicitly validating the actions of Charlotte by calling a special session. Supporters of these types of ordinances may argue that by invalidating Charlotte’s ordinance through a special session, the General Assembly is tacitly admitting that it was previously a valid exercise of the city’s ordinance-making power. The General Assembly should be sure to make clear that this is not the case.