Appointments fight between Cooper, lawmakers returns to three-judge panel

State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore

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  • A lawsuit over the power to appoint members of state boards and commissions is returning to a three-judge panel. The suit pits Democratic Gov. Roy Cooper against Republican state legislative leaders.
  • Judge John Dunlow, appointed to the case by state Supreme Court Chief Justice Paul Newby, agreed Thursday to transfer the case to three judges. State law requires three-judge panels to hear so-called "facial" constitutional challenges to state laws.
  • Dunlow refused to take action on a temporary restraining order issued on Jan. 11 in connection with the case. That order blocks North Carolina's Environmental Management Commission from dropping a separate lawsuit against the Rules Review Commission.

A lawsuit pitting Democratic Gov. Roy Cooper against Republican legislative leaders over appointments to state boards and commissions is heading back to a three-judge panel. A single judge made that decision Thursday morning after a court hearing in Raleigh.

Superior Court Judge John Dunlow of Granville County agreed with lawmakers that the case should return to three judges. But Dunlow took no action on another pressing issue in the case. He refused to address a Jan. 11 order blocking the state Environmental Management Commission from dismissing a separate lawsuit.

Cooper had secured the temporary restraining order two weeks ago from a different judge, Rebecca Holt. She granted the governor’s request to block the EMC’s decision to drop its lawsuit against the Rules Review Commission. The two commissions have disagreed over EMC’s plans to regulate a chemical called 1,4-dioxane.

Holt’s ruling had been based on Cooper’s argument that the EMC vote to drop the RRC lawsuit presented an opportunity for the governor to challenge Senate Bill 512, an appointments bill, in what lawyers call an “as-applied” constitutional challenge.

Dunlow disagreed Thursday. After hearing from lawyers for Cooper and top legislative leaders, he ruled from the bench that Cooper’s complaint about the EMC vote amounted to a “facial” constitutional challenge. State law requires those challenges to head to a three-judge panel appointed by state Supreme Court Chief Justice Paul Newby.

After announcing the decision to send the case back to a panel, Dunlow said he had no jurisdiction to say anything about Holt’s restraining order. He labeled the situation “unique.”

Thursday’s action followed several developments in the case involving Cooper, legislative leaders, and Newby.

Newby issued a Jan. 17 order assigning the case to Dunlow, A Republican, Dunlow is senior resident Superior Court judge in Granville County. He also served as lead judge in a three-judge panel that issued a ruling in the same case on Nov. 1.

Dunlow issued a Jan. 18 order delaying a scheduled hearing in the case by one week.

Legislative leaders explained in court filings why they believed the case should head back to a three-judge panel.

“In his Supplemental Complaint, the Governor purports to bring what he calls an ‘as-applied challenge’ to Part II of Senate Bill 512 based on a recent vote by the EMC to voluntarily dismiss litigation it filed against the RRC related to its rejection of a rule proposed by the EMC,” legislative lawyers wrote. “The Governor disagrees with the decision to voluntarily dismiss the EMC v. RRC litigation.”

“In reality, the Governor’s Supplemental Complaint merely reasserts the same facial challenge to Senate Bill 512’s amendments to the EMC’s membership structure that he raised in his original Complaint,” the legislators’ motion continued.

“Specifically, the Governor’s purported ‘as-applied’ challenge (i) is predicated upon the same exact theory as his facial challenge, and (ii) explicitly seeks facial relief, i.e., total invalidation of the amendments to N.C. Gen. Stat. §§ 143B-283 & -284 in Part II of Senate Bill 512, which pertain to the EMC,” lawmakers’ lawyers explained.

“Thus, the Governor’s challenge is facial, and facial challenges to statutes must be submitted to a three-judge panel,” the motion continued.

A “facial challenge” means that a plaintiff asserts that a challenged law is unconstitutional under all circumstances and must be thrown out. An “as-applied challenge” means that a plaintiff objects to a law only in its application to the facts of the particular legal complaint. State law permits a single judge to consider as-applied challenges.

Legislators’ court filing also offered more details about the compressed timeline of Holt’s Jan. 11 order favoring Cooper in the appointments fight. At 11:24 that morning, Cooper’s lawyers announced plans to file a supplemental complaint, along with requests for a temporary restraining order and preliminary injunction. Holt scheduled the hearing for 4 p.m. the same day and delivered Cooper his temporary restraining order before 5:30 p.m.

Cooper’s lawyers argued that the EMC never would have dropped the suit if the governor had continued to maintain a majority of appointments to the environmental group.

The latest developments in this Cooper v. Berger case followed more than two months of relative inaction. On Nov. 1, a three-judge panel including Dunlow granted Cooper an injunction against parts of SB 512.  That bill, enacted into law last year over Cooper’s veto, changed the way members are appointed to various state government boards and commissions.

The Nov. 1 court order blocked proposed changes to the state’s Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the EMC and Coastal Resources Commission.

Cooper’s court filings explained why the governor renewed his request for action against EMC changes.

The state Supreme Court “has consistently reaffirmed that in our constitutional system, the duty to ‘take care that the laws be faithfully executed’ is expressly assigned to the Governor,” Cooper’s lawyers wrote. “In order to fulfill that constitutional obligation, the Governor must retain sufficient control over boards, commissions, and committees that perform executive functions. The Governor lacks sufficient control when he is unable to appoint, supervise, and remove a working majority of members to such boards, commissions, and committees.”

“Control of a working majority of the EMC has been reallocated to Commissioners who do not share the views and priorities of the Governor concerning execution of North Carolina’s environmental laws, as evidenced by the EMC’s recent vote purporting to dismiss critical litigation protecting the EMC’s rulemaking authority,” Cooper’s motion added.

“To prevent irreparable harm to the Governor’s constitutional obligation to ensure faithful execution of the law, and to preserve the status quo of the subject matter involved until a trial can be had on the merits, a temporary restraining order and preliminary injunction preventing the EMC from dismissing its lawsuit against the North Carolina Rules Review Commission is necessary,” the governor’s lawyers argued.

Before SB 512 took effect, Cooper had authority to appoint nine members of the 15-member EMC. Legislators appointed the other six members.

The challenged law shifted two of Cooper’s nine appointments to the state agriculture commissioner. Cooper is a Democrat. Ag Commissioner Steve Troxler and legislative leaders are Republicans.

Troxler’s appointees have joined the legislative appointees to “form a working majority on the EMC that has taken actions inconsistent with the Governor’s policy views and priorities with respect to how the EMC should execute the laws within its jurisdiction,”  according to Cooper’s motion.

That includes the commission’s decision to replace Robin Smith, a Cooper appointee, with John “JD” Solomon, a legislative appointee, as the group’s chair.

“Commissioner Solomon does not share the Governor’s policy views and priorities with respect to how the EMC should execute the laws that are within the jurisdiction of the EMC,” Cooper’s lawyers argued. “For example, Commissioner Solomon personally disagrees with the Governor’s policy views and priorities reflected in the EMC’s Proposed 1,4-Dioxane Amendments and the related Complaint in EMC vs. RRC.”

The proposed 1,4-dioxane amendments prompted the legal dispute between the environmental and rules review groups.

“[T]he Governor is likely to succeed in showing that he has in fact lost control of the EMC, and the EMC has exercised its control inconsistent with the Governor’s views and priorities with respect to ensuring faithful execution of the laws under the jurisdiction of the EMC,” the governor’s lawyers argued.

Legislative leaders filed paperwork in November asking the Superior Court panel to dismiss Cooper’s lawsuit.

The court should “dismiss Plaintiffs claims (a) due to lack of subject matter jurisdiction and (b) on the grounds that the Complaint fails to state claim upon which relief may be granted,” according to lawmakers’ motion.

Cooper’s “claims present nonjusticiable political questions,” and he “lacks standing” to challenge appointment changes “that will not take effect until after his term as Governor has ended.”

The Nov.1 injunction followed a hearing in Raleigh before the three-judge panel.

“Each of these boards is housed in an executive branch agency that is controlled by the governor,” argued Jim Phillips, an attorney representing Cooper. “Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, They issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina.”

“The General Assembly’s restructuring of these boards is unconstitutional,” Phillips added.

“This is our democracy that we’re talking about,” Phillips said. “This is about the checks and balances that keep our branches of government in their lanes.”

“It is the General Assembly’s job to set the policy of the state, to organize state government, and to place in that organization of government checks and mechanisms that ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people,” responded Matthew Tilley, the lawyer representing GOP legislative leaders.

Tilley rejected Cooper’s claim that previous court battles between the executive and legislative branches clearly favored the governor.

“There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions,” he said. “They require a case-by-case analysis.”

Dunlow and fellow Superior Court Judges Paul Holcombe and Dawn Layton served as the three-judge panel overseeing the Cooper v Berger appointments case. Dunlow and Holcombe are Republicans. Layton is a Democrat. Holcombe’s judicial district covers Johnston County. Layton’s district covers Anson, Richmond, and Scotland counties.

Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targeted state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Moore, as leaders of the General Assembly.

The suit reached the court slightly more than three hours after the legislature approved SB 512. A 72-44 vote in the state House completed the override of Cooper’s veto of the measure.

SB 512 changed the appointment structure for the state Economic Investment Committee, Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, North Carolina Railroad Board of Directors, UNC Health Care Board of Directors, Utilities Commission, UNC Board of Governors, and UNC Chapel Hill and NC State University boards of trustees.

Cooper objected to changes taking away his appointment powers in that law, along with a provision in House Bill 488 that reorganized the State Building Council and created the Residential Code Council.

“This law is a blatantly unconstitutional legislative power grab,” Cooper said in a news release announcing the lawsuit. “Over the years, the North Carolina Supreme Court has repeatedly held in bipartisan decisions that the legislature cannot seize executive power like this no matter what political parties control which offices. The efforts of Republican legislators to destroy the checks and balances in our constitution are bad for people and bad for our democracy.”  

Cooper originally asked for an injunction blocking portions of the two challenged laws dealing with the Economic Investment Committee, the Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, and Residential Code Council.

Changes to the wildlife and residential code groups are scheduled to take effect in 2025. Phillips agreed on Nov. 1 to set aside the request to block those changes now. Cooper could renew his pursuit of an injunction again if the rest of the case remains unresolved in 14 months.

Phillips accused state lawmakers of approving laws that fly in the face of state Supreme Court precedents from 1982, 2016, and 2018.

“The General Assembly knows that these statutes are unconstitutional,” Phillips argued Wednesday. “Speaker Moore has said so — said as much. ‘We think those cases were wrongly decided, and we want to give it another shot.’”

“It is the governor alone, not the General Assembly, not the Medical Society, not the Council of State, who is given the authority and the duty to ensure that the laws are faithfully executed.”

Phillips and Tilley offered contrasting views of the separation of powers.

“The General Assembly, and not the executive, is what is typically understood to be the primary policymaking branch of government,” Tilley said. “One way that it makes policy is through structure of boards and commissions.”

“To the extent that the governor has the ability to set executive policy, it is within the confines and the boundaries set by the General Assembly.”