Democratic Gov. Roy Cooper gave General Assembly Republicans a Memorial Day weekend present: yet another legal challenge to legislation the governor claims unconstitutionally limits his executive powers.
Cooper’s office announced late Friday he filed a lawsuit seeking preliminary and permanent injunctions in Wake County Superior Court stemming from what he views as violations of separation of powers outlined in the state constitution.
Defendants are Senate leader Phil Berger, R-Rockingham; House Speaker Tim Moore, R-Cleveland; Charlton Allen, chairman of the North Carolina Industrial Commission, and Yolanda Stith, vice chairwoman of the Industrial Commission — the wife of former Gov. Pat McCrory’s chief of staff Thomas Stith; and the state of North Carolina.
Berger quickly responded by citing Cooper’s earlier call for cooperation in his March State of the State Address.
“In Raleigh, partisan battles, power struggles, and lawsuits might grab the headlines, but we have to work together where we can,” Cooper said in his State of the State speech. He encouraged elected officials to look beyond themselves to do what is right for the state, regardless of who’s in power.
“So we don’t understand why he feels suing three times in less than six months is a good way to accomplish that goal,” Berger said. “[W]e wish he would heed his own advice rather than filing endless lawsuits bankrolled by the taxpayers to elevate his own political power.”
Cooper spokesman Ford Porter said in a news release that the suit seeks to block legislation preventing Cooper from appointing judges to the North Carolina Court of Appeals to fill terms of retiring judges, and nullify legislation passed in a December special session regarding appointments to the North Carolina Industrial Commission.
The suit also says the legislature has failed to make state law consistent with the conclusion of a Supreme Court decision in McCrory v. Berger. In that lawsuit, the justices said the General Assembly had violated the separation-of-powers principle when it created three commissions with executive authority but limited the governor’s ability to control those bodies.
The lawsuit alleges that just weeks after voters elected Cooper in 2016 to enact his platform, policies, and ideology in governing the state, “the leadership of the North Carolina General Assembly moved to curtail, in significant ways, the executive powers that passed to the governor on Jan. 1, 2017, and to exercise much of that power on their own.”
The lawsuit said the legislature’s actions “(a) radically changed the structure and composition of the executive agencies responsible for administrating [sic] our State’s election and ethics laws; (b) embedded political loyalists from the previous administration within managerial and policymaking positions in the Cooper administration; (c) required Senate confirmation of principal department heads; and (d) restructured the leadership and membership of the North Carolina Industrial Commission.”
Reducing Court of Appeals judges
By passing House Bill 239, Republicans intended to exert partisan influence over the judicial branch by eliminating three Republican-held court seats upon judges’ retirements, Cooper claims. He said that was done to appoint replacements for the remainder of the terms. He vetoed the bill, but was overridden by the House and Senate.
By eliminating the court seats before the end of the full terms of office, H.B. 239 violated a section of the North Carolina Constitution that Court of Appeals terms last eight years. The state Supreme Court has affirmed that principle, the lawsuit claims.
Republican legislators’ claim that the court reduction was in response to decreased workload was made without factual basis or consultation with the Court of Appeals, the news release said. Four former NC Supreme Court justices from both parties wrote to the General Assembly to say the bill would “seriously harm our judicial system.”
Appointments to the Industrial Commission
During December’s unannounced special legislative session, Republicans passed a series of measures with Senate Bill 4, including allowing McCrory unconstitutional power during his final days in office to make special appointments to the Industrial Commission.
For instance, Yolanda Stith was granted a one-time, nine-year appointment. The legal term on the commission is six years. The lawsuit claims tacking three years of an unexpired term onto the six-year appointment was unconstitutional.
S.B. 4 also changed the law prohibiting Cooper from appointing leaders of the Industrial Commission, allowing McCrory, on the last day of his term, to appoint Allen and Stith to four-year terms, covering almost all of Cooper’s term, the suit said.
The Industrial Commission administers a number of statutes dealing with state compensation, including the North Carolina Workers’ Compensation Act, the Tort Claims Act, the Law Enforcement Officers’, Firemen’s, Rescue Squad Workers’, and Civil Air Patrol Members’ Death Benefits Act.
By limiting the governor’s ability to appoint Industrial Commission leaders and direct the policy views and priorities of the commission, the legislature unconstitutionally infringed on the governor’s mandate to administer laws and policies, Cooper claims in his suit.
Boards and commissions
The lawsuit also challenges the legislature’s removal of Executive Branch oversight from numerous boards and commissions in state government, including:
- The Clean Water Management Trust Fund
- The Child Care Commission
- The State Building Commission
- The NC Parks and Recreation Authority
- The Rural Infrastructure Authority
- The Private Protective Services Board
That violates the ruling in McCrory v. Berger, Cooper claims.