When the North Carolina General Assembly meets in joint session to confirm a Governor's appointment to the State Board of Education, are the House and Senate votes counted separately or as one combined total of all legislators present?

Plain-English summary

Governor Jim Hunt had appointed Kathy Taft to the State Board of Education and submitted the appointment to the General Assembly for confirmation. On July 19, 1995, the General Assembly met in joint session to consider three of Hunt's nominees, including Taft. The Senate and House voted on each nominee separately, as had become customary after electronic voting machines were installed. The Senate voted 44-4 to confirm all three nominees. The House voted on each separately, confirming the other two by 111 and 112 votes; Taft got 47 House votes for, 64 House votes against. Combined, Taft had 91 for and 68 against. But because the votes were tallied separately, the Speaker announced Taft was not confirmed.

Hunt asked the AG whether the Speaker was right.

Chief Deputy AG Andrew Vanore, for AG Easley, said no. Taft was confirmed.

The constitutional text is short: Article IX, § 4(1) says SBE members are "appointed by the Governor, subject to confirmation by the General Assembly in joint session." This is the only NC constitutional provision that requires "joint session" action by the legislature. The phrase has a settled meaning across American legislative law: when the two houses meet "in joint session," they merge into a single unicameral body. Each member of the General Assembly gets one equal vote. There is no checking-and-balancing between the two houses in joint session; that is the whole point of the joint-session structure.

The AG marshaled extensive supporting authority:
- Snow v. Hudson, 43 P. 260 (Kan. 1896): joint session "implies the meeting together and commingling of the two houses, which, when so met and commingled, act as one body. Each member of that body, when it has been once properly and lawfully convened, has equal rights, and his vote has equal weight with that of any other member."
- Richardson v. Young (Tenn. 1910): "Joint conventions are not composed of the Senate and the House of Representatives, but of the members of the General Assembly, without regard to the house to which they were elected."
- Matter of Anderson v. Krupsak (N.Y. 1976): a quorum in joint session is a majority of total membership; the Senate and Assembly merge into a "unicameral body."
- Abood v. Gorsuch (Alaska 1985): "When [the Legislature] acts in joint session it acts as a unicameral body."

Mason's Manual of Legislative Procedure, the procedural manual referenced by House Rule 62, says the same thing in §782: in a joint session "the two houses of a legislature ... in effect merge into one house" with each member having one equal vote.

The AG also documented North Carolina's own historical practice. From the 1942 constitutional amendment that first required joint session SBE confirmation through 1977, the General Assembly voted as a single body, with motions made by Senators and seconded by House members. After both chambers installed electronic voting machines in the late 1970s, the practice shifted to separate House and Senate tallying. But no rule or statute had ever required separate tallying, and the change of practice did not change the constitutional meaning of "joint session."

So Taft's 91-68 combined tally was a majority. She was confirmed. The Speaker's announcement was wrong as a constitutional matter.

The AG noted that he had consulted John Sanders, former director of the Institute of Government and the NC Supreme Court's "noted commentator" on the NC Constitution (see N.C. State Bar v. DuMont (1982)). Sanders agreed.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The NC Constitution's Article IX Section 4(1) joint-session confirmation requirement and NCGS 115C-10 remain in effect. The 1995 General Assembly may have changed its tallying procedure in response to this opinion. Anyone with a current question about joint session procedure should check the General Assembly's current rules and any post-1995 amendments or precedents.

Background and statutory framework

The North Carolina State Board of Education has eleven appointed members confirmed by the General Assembly in joint session. The constitutional structure dates to 1942, when the voters ratified a constitutional amendment proposed in 1941. The 1943 General Assembly amended the appointment provisions and the 1944 voters ratified the change; the 1971 Constitution carried forward the joint-session requirement with minor changes.

The joint-session structure is unusual. Most North Carolina governmental confirmations (judicial appointments, agency heads, etc.) follow normal bicameral processes: Senate approval alone, or sequential approval by both houses. The SBE confirmation is the only NC constitutional provision that requires explicit joint-session action. Why the framers chose this structure is not addressed in the AG opinion, but the practical effect is to make SBE confirmations easier than other bicameral confirmations because a single chamber's opposition cannot block the vote.

The mechanical issue Vanore had to resolve was how voting in a joint session works. The Constitution says "joint session" without specifying tallying mechanics. NCGS 115C-10 does the same. House Rule 62 references Mason's Manual as the fallback for un-rule-addressed procedural questions. Mason's §782 says joint sessions merge the houses into one body with one equal vote per member.

The 1995 General Assembly's practice of separate tallying had developed over the prior 15-20 years, apparently as a side effect of the electronic voting machines that were installed in each chamber. Each machine recorded votes for that chamber's members; combining the two reads required either a separate accounting step or simply reporting them as two separate totals. The practice was administrative, not constitutional, and the AG made clear that practice cannot override constitutional text.

The opinion's stakes were political and personal. Kathy Taft was a Hunt nominee with controversial backing. The House's 47-64 separate vote was a substantive rebuff. Vanore's opinion told the Speaker that the rebuff did not legally defeat the confirmation because the House did not get to vote alone. The opinion did not say the General Assembly could not adopt a rule requiring separate majorities (although it expressed doubt about whether a rule could override the constitutional joint-session meaning); it just said that no such rule existed in 1995.

The political fallout is not addressed in the opinion. Taft served on the SBE.

Common questions

Could the General Assembly adopt a rule requiring separate House and Senate majorities in joint sessions?

The opinion is doubtful but not categorical. Vanore wrote: "Given the 'well recognized' meaning that has been ascribed to the phrase 'joint session,' it is doubtful that the General Assembly through statutes or procedural rules could require separate majorities of both houses for confirmation of members of the State Board of Education pursuant to the constitutional direction." So a rule attempting that change would face constitutional doubt. In any event, no such rule existed in 1995.

How was the joint session quorum determined?

The opinion does not directly address quorum, but the rule from Anderson v. Krupsak (N.Y. 1976) would apply: quorum is a majority of total combined membership, not a majority of each house separately. The 1995 session had 46 Senators and 112 House members responding to roll call, for 158 of about 170 total General Assembly members present. That was well above majority quorum.

Does this opinion apply to other "joint session" actions?

The opinion specifically construes Article IX Section 4(1) of the NC Constitution, which is the only NC constitutional joint-session provision. To the extent the General Assembly chooses to meet in joint session for other purposes (joint addresses by the Governor, ceremonial sessions, etc.), the unicameral-body principle should apply. Whether the legislature could meet in joint session for some bicameral action is a separate question.

What if a tie vote occurred in joint session?

The opinion does not address ties. Under standard parliamentary procedure (Mason's Manual), a tie vote on confirmation would fail (no majority means no confirmation). The Lieutenant Governor (who presides over the Senate) and the Speaker of the House would not have separate tiebreaking authority in joint session, because there are no separate Senate and House tallies. The presiding officer of the joint session would handle a tie according to whatever rules the joint session had adopted, or under Mason's Manual default rules.

Why was the practice of separate tallying allowed for so long?

The opinion suggests it began when electronic voting machines were installed in each chamber in the late 1970s. The mechanics of the machines made separate tallying easier, and as long as the two houses voted the same way (which had been the case until the Taft confirmation), the substantive result was the same regardless of tallying method. The Taft vote was the first reported instance of a divergent vote, and Vanore's opinion was the first to address the tallying question on the record.

Source

• Landing page: https://ncdoj.gov/opinions/confirmation-of-kathy-taft-as-a-member-of-the-state-board-of-education/

Citations

• N.C. Const. art. IX, § 4(1)
• N.C. Gen. Stat. § 115C-10
• 1941 N.C. Sess. Laws ch. 151; 1943 N.C. Sess. Laws ch. 468
• Mason's Manual of Legislative Procedure §782
• Snow v. Hudson, 43 P. 260 (Kan. 1896)
• Richardson v. Young, 125 S.W. 664 (Tenn. 1910)
• Matter of Anderson v. Krupsak, 353 N.E.2d 822 (N.Y. 1976)
• Marino v. Weprin, 598 N.Y.S.2d 672 (1993), aff'd, 600 N.Y.S.2d 289 (App. Div. 1993)
• Abood v. Gorsuch, 703 P.2d 1158 (Alaska 1985)
• N.C. State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982)

Original opinion text

August 1, 1995

The Honorable James B. Hunt, Jr., Governor
State Capitol
116 West Jones Street
Raleigh, North Carolina 27603-8001

Re: Advisory Opinion; Confirmation Of Kathy Taft As A Member Of The State Board Of Education; Article IX Section 4(1) Of The North Carolina Constitution; N.C. Gen. Stat. § 115C-10.

Dear Governor Hunt:

You ask our advice whether Ms. Kathy Taft was confirmed as a member of the State Board of Education by the General Assembly as required by the North Carolina Constitution. For reasons which follow, it is our opinion that Ms. Taft was confirmed by the General Assembly meeting in joint session on July 19, 1995.

Ms. Taft was one of three persons recently appointed by you to serve as members of the State Board of Education. On July 19, 1995, the General Assembly met in joint session for the purpose of considering these appointments. Both the House and Senate Journals reflect that the joint session was duly convened pursuant to a joint resolution and that 46 Senators and 112 House members responded to a roll call. The Senate and House then voted separately on the question of whether to confirm the three nominees. The House and Senate Journals agree that the Senate voted 44 to 4 in favor of confirming all three nominees. The House voted individually on the three nominees, with the other two nominees receiving 111 and 112 votes, respectively, for confirmation. Ms. Taft received 47 House votes for confirmation and 64 House votes against confirmation. If the total House and Senate votes for and against Ms. Taft's confirmation were combined, she received 91 votes for confirmation and only 68 votes against confirmation. Because the votes were counted separately, the journals of both houses reflect that the Speaker of the House announced that Ms. Taft's appointment was not confirmed.

Article IX Section 4(1) of the North Carolina Constitution provides that eleven members of the State Board of Education are "appointed by the Governor, subject to confirmation by the General Assembly in joint session." This is the only provision in the North Carolina Constitution requiring action by the General Assembly "in joint session." Appointment of certain members of the State Board subject to confirmation by the General Assembly in joint session was first enacted as a proposed constitutional amendment in Chapter 151 of the 1941 Session Laws and was ratified by the voters in 1942. In 1943, the General Assembly adopted legislation proposing an amendment to the constitutional provisions for the composition, terms and appointment of the State Board, 1943 Sess. L. ch. 468, ratified in 1944, but continuing the requirement that the Governor's appointees be confirmed by the General Assembly in joint session. When the Constitution of 1971 was adopted, minor changes were again made in the composition of the State Board, but the basic provision for appointment of members by the Governor subject to confirmation by the General Assembly in joint session was not changed, and there have been no amendments to the appointment provision since that time. At no time has the Constitution specified how the votes were to be cast or counted in the joint sessions held for confirming appointments to the State Board of Education.

The constitutional provision concerning appointment and confirmation of members of the State Board of Education has been implemented by legislation. Specifically, North Carolina General Statute § 115C-10 also provides for the members of the State Board of Education, including 11 members appointed by the Governor and confirmed "by the General Assembly in joint session." No statutory provision specifies how the votes of the members of the General Assembly are to be cast or tallied in a joint session.

The General Assembly itself has no rules which speak directly to how votes in a joint session shall be counted. The July 19 joint session did not adopt any rules for counting or tallying votes, and neither the House nor the Senate has any rules which specify how to count the votes in a joint session. However, House Rule 62 states that matters not covered in the House rules shall be governed by Mason's Manual of Legislative Procedure. Section 782, ¶ 2 of Mason's Manual of Legislative Procedure provides that members of the house and senate, when meeting in a joint session, "become a single body, with a majority of all members of both houses constituting the quorum, with each member entitled to an equal vote with every other member." Section 782, ¶ 3 of Mason's Manual of Legislative Procedure also provides that the two houses of a legislature meeting in a joint session "in effect merge into one house" "where the votes of members of each house have equal weight."

Although we have been unable to find any North Carolina case law concerning joint sessions, case law from other jurisdictions consistently interprets the phrase "joint session" as having a definite, settled meaning that the two houses of a legislature meeting in joint session in effect sit, and act, as one body. As stated by the Supreme Court of Kansas in 1896,

The term "joint session," in our view, has a well-recognized meaning, and implies the meeting together and commingling of the two houses, which, when so met and commingled, act as one body. Each member of that body, when it has been once properly and lawfully convened, has equal rights, and his vote has equal weight with that of any other member; and it is beyond the power of the legislature to say that in a session, which the constitution says shall be joint, the vote of a senator shall have greater weight than the vote of a member of the house. The framers of the constitutional provision, and the people who voted for its adoption, are presumed, not only to have understood the meaning of the words they selected, but also the customs of joint conventions which meet in all the states for the election of United States senators, and in many of them for other purposes. Our understanding of the very purpose of making a session joint is to remove the check which each house holds on the other, and to permit the two houses combined to vote and act as a single body.

Snow v. Hudson, 43 P. 260, 262-63 (Kan. 1896); accord Richardson v. Young, 125 S.W. 664, 681 (Tenn. 1910); see also 81A C.J.S., States, § 48; Black's Law Dictionary (6th Ed.). The Tennessee Supreme Court, using the terms "joint conventions" and "joint sessions" interchangeably throughout its opinion, observed that "[j]oint conventions are not composed of the Senate and the House of Representatives, but of the members of the General Assembly, without regard to the house to which they were elected," and that in joint conventions the members of the Senate "meet the members of the House upon an equality, as members of the convention; all having the same authority and only one vote." Richardson, 125 S.W. at 680.

In more recent times, the highest court of New York addressed the question of whether certain members of the State Board of Regents had been properly "elected" pursuant to a state law requiring their election by joint ballot in a joint session of the legislature. The New York court concluded that a quorum of the joint session consisted of a majority of all members of the legislature and that a majority of each house was not required. It reasoned that "[o]nce the joint session had been convened, the Senate and Assembly were no longer separate bodies of the Legislature, but were instead merged into a unicameral body, where a quorum was simply a majority of the total membership of the unicameral body. . . ." Matter of Anderson v. Krupsak, 353 N.E.2d 822, 827 (N.Y. 1976); accord Marino v. Weprin, 598 N.Y.S.2d 672, 677 (1993), aff'd, 600 N.Y.S.2d 289 (App. Div. 1993).

Similarly, the Supreme Court of Alaska considered the validity of confirmations of certain state officers who were required by the state constitution to be confirmed by a majority of the legislature in joint session.

The Legislature is a bicameral body for some purposes and a unicameral body for others. When it acts in joint session it acts as a unicameral body. The checks and balances that are present between the houses in a bicameral legislature do not exist in a unicameral setting, and it is a contradiction in terms to suggest that they do. Abood v. Gorsuch, 703 P.2d 1158, 1164 (Alaska 1985).

The authorities thus appear unanimous in the position that a legislature meeting in joint session becomes a unicameral body for that joint session. Instead of each house acting as a check on the other, as in the normal bicameral actions of the legislature, the two houses merge, and each member of the General Assembly has a single vote, equal to that of each of the other members.

We are aware of no authority that would give the term "joint session" a different meaning when used in the North Carolina Constitution from the meaning recognized in every other source that we have been able to identify. Neither the North Carolina Constitution nor case law provides any basis for assigning a different meaning to a "joint session" under the North Carolina Constitution from the meaning consistently given to it by other states and other authorities. Given the "well recognized" meaning that has been ascribed to the phrase "joint session," it is doubtful that the General Assembly through statutes or procedural rules could require separate majorities of both houses for confirmation of members of the State Board of Education pursuant to the constitutional direction. In any event, the General Assembly has never, either through legislation or rules, adopted such a requirement.

Although the General Assembly has apparently for some years followed the practice of having each house vote separately in joint sessions, there have been no previous occasions of which we are aware when the House and Senate voted differently from each other in considering the confirmation of appointees to the State Board of Education. We recognize that the practice of the General Assembly itself might be viewed as suggesting that the phrase "joint session" was understood differently in North Carolina from the way it has consistently been interpreted elsewhere. However, we believe that argument is refuted by the actions of the first joint session held to confirm appointments to the State Board of Education after ratification of the 1942 constitutional amendment mandating that it be done in "joint session." In 1943 the General Assembly voted jointly, as a unicameral body, unanimously approving a motion made by a Senator and seconded by a House member, to confirm the Governor's appointments to the State Board of Education. 1943 S.J. p. 418; 1943 H.J. p. 516. The General Assembly continued the practice of voting jointly, as one body, through 1977, unanimously approving a motion made by a House member and seconded by a Senator, to confirm the Governor's appointees to the State Board of Education. 1977 S.J. pp. 447, 448; 1977 H.J. pp. 587, 588. Thereafter, at about the time both chambers installed electronic voting machines, it appears that the Senate and House in joint session began voting separately on nominees to the State Board of Education.

In addition, as noted in Snow v. Hudson, supra, the concept of joint sessions was a familiar one used for many years by legislatures in the selection of United States Senators. The North Carolina General Assembly, meeting in "joint session" or "joint assembly" to select United States Senators, apparently followed the practice of adding House and Senate votes for a single, combined vote total in determining United States Senators for North Carolina. See, e.g., 1909 H.J. pp. 80-81 (winning candidate received 36 Senate votes and 91 House of Representative votes for a total of 127 votes while losing candidate received 8 Senate votes and 26 House of Representative votes for a total of 34 votes); 1907 H.J. pp. 117-18 (winning candidate received 33 Senate votes and 83 House of Representative votes for a total of 116 votes while other candidates received total of 24 votes and 2 votes, respectively).

In conclusion, it is our opinion that when the General Assembly met in joint session on July 19, 1995, it became a unicameral body. The votes of the House and Senate should not have been separately tallied, but should have been counted together. Accordingly, Ms. Taft received a majority of the votes cast at the joint session and was in fact confirmed by the General Assembly in joint session as provided in Article IX Section 4 of the North Carolina Constitution and N.C. Gen. Stat. § 115C-10.

In reaching this conclusion, we have consulted with John Sanders, former Director of the Institute of Government. Mr. Sanders was actively involved in the drafting of our present constitution and has been recognized by our Supreme Court as a "noted commentator" on the Constitution of North Carolina. See N.C. State Bar v. DuMont, 304 N.C. 627, 636, 286 S.E.2d 89, 95 (1982). He has reviewed the subject matter and this letter and has expressed his agreement with our conclusions.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General