Cooper drops two-year-old lawsuit against state Rules Review Commission

Gov. Roy Cooper speaks at a Department of Health and Human Services press conference.
  • Gov. Roy Cooper's lawyers filed a notice of voluntary dismissal Friday in a lawsuit challenging North Carolina's Rules Review Commission. A hearing had been scheduled for Nov. 9 in the case.
  • The Democratic governor and Republican-led General Assembly clashed over control of the commission. It oversees administrative rules developed by executive branch agencies.

Gov. Roy Cooper is dropping his lawsuit challenging legislative control of North Carolina’s Rules Review Commission. Cooper’s lawyers filed a notice of voluntary dismissal on Friday. A three-judge panel had been scheduled to hold a hearing in the case on Nov. 9.

Cooper’s legal team filed the notice “without prejudice.” This means the governor could refile the suit at a later date.

Cooper, a Democrat, initially challenged the Rules Review Commission in August 2020. “The RRC is an executive branch agency created in 1986 by the General Assembly to review rules and regulations drafted by the Governor’s Administration. All 10 members of the RRC are appointed by the General Assembly, giving the legislative branch an unconstitutional veto authority over rules and regulations issued by the executive branch,” Cooper’s office claimed in a news release connected with the suit.

At the time, Cooper specifically objected to recent RRC decisions against proposed rules for the Department of Public Safety and Department of Health and Human Services. “[T]he RRC stepped into the shoes of those executive branch agencies and rejected the proposed rules on policy grounds — blocking the executive branch agencies’ judgment in favor of its own,” Cooper argued.

Carolina Journal reported in September 2020 on potential implications of Cooper’s suit.

“The legislature and the governor are fighting over control of the Rules Review Commission — a powerful board, chosen by lawmakers, that can prevent bureaucrats in the executive branch from wielding legislative power without the lawmakers’ consent,” wrote Julie Havlak.

“If the Democrat Cooper wins in court, his victory will weaken legislative authority and erode separation of powers in North Carolina, experts say. A ruling in Cooper’s favor would cripple the legislature’s control over how regulatory agencies interpret state laws.”

“Republican lawmakers bashed Cooper’s lawsuit as ‘another power grab, plain and simple.’ Cooper argues that lawmakers are interfering with the executive branch’s authority to set policy in rulemaking.”

“The agency they’re fighting over is a powerful watchdog. Its commissioners can veto rules on election laws, unemployment benefits, environmental conservation — even rules about hearing loss and heavy metals in fish. Its members have been said to ‘wield more power than most elected officials,’ argued former commissioner Harry Payne, who later joined the N.C. Justice Center, a left-leaning policy group.”

Cooper had secured support for his lawsuit in August from left-of-center environmental groups. The Southern Environmental Law Center filed a friend-of-the-court brief in the case on behalf of 10 other organizations.

Because Cooper’s lawsuit represented a “facial” challenge to the constitutionality of the statute creating the RRC, state law required the case to head to a three-judge trial court panel. The chief justice of the N.C. Supreme Court appoints three-judge panels.