- Gov. Roy Cooper and Republican state legislative leaders are taking their fight over appointments to state boards and commissions to the North Carolina Court of Appeals.
- The Cooper v. Berger case involves changes to appointments for seven state boards. A three-judge Superior Court panel upheld the changes to five boards while striking down two others.
- Both Cooper and top lawmakers appealed the decision. Both sides accuse the other political branch of trying to wield too much power over the targeted groups.
Gov. Roy Cooper and state legislative leaders are taking their fight over appointments to seven state boards and commissions to North Carolina’s second-highest court.
Cooper, lawmakers, and lawyers from Attorney General Josh Stein’s state Justice Department all filed briefs Tuesday at the North Carolina Court of Appeals in a case called Cooper v. Berger.
It’s one of two active legal disputes between the Democrat Cooper and Republican leaders of the state House and Senate. The other involves a battle over control of appointments to the State Board of Elections.
Both cases sit with the Appeals Court after the state Supreme Court rejected legislative leaders’ request to take the cases without a review from the intermediate court.
In the appointments fight, a unanimous three-judge Superior Court panel agreed in February to uphold changes lawmakers made to the appointment process for the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The same panel rejected lawmakers’ changes to state’s Economic Investment Committee and Board of Transportation.
Cooper and legislative leaders both filed appeals. Top lawmakers objected to the three-judge panel’s decision to strike down changes to two boards.
“Last fall, the General Assembly overrode Governor Cooper’s vetoes to enact two bills — Session Law 2023-136 (Senate Bill 512) and Session Law 2023-108 (House Bill 488) — that changed the appointment structures of certain statutory boards and commissions,” lawmakers’ lawyers wrote. “The express purpose of these measures was to ‘increase the accountability of public boards and commissions to the citizens of North Carolina.’”
“Accordingly, the bills sought to diffuse power over the boards and commissions at issue by adopting a range of structures that split appointments between the Governor, members of the Council of State, certain outside professional groups with relevant expertise, and the House and Senate,” the brief continued.
“Governor Cooper, however, sued to stop Senate Bill 512 and House Bill 488, claiming they ‘fail to respect fundamental principles of representative government,’ and, if implemented, would lead to ‘tyranny,’” lawmakers’ lawyers added. “And just a week later, the Governor filed yet another lawsuit, challenging legislative efforts to establish a bipartisan Board of Elections. Why? Because, according to the Governor, separation of powers requires that he — and he alone — must have ‘enough control’ over every board and commission to ensure it ‘implement[s] executive policy’ in a manner ‘consistent with his views and priorities.’”
“As a result, the Governor contends the Constitution requires that he have the power to appoint a majority of every board and commission the General Assembly creates,” lawmakers’ brief continued. “But no provision of the Constitution gives the Governor power to appoint statutory officials.”
Cooper relies on the state Supreme Court’s “fractured opinions” in two previous disputes between legislative leaders and two governors: Republican Pat McCrory in 2016 and Cooper in 2018. Those decisions “seem at odds with our constitutional text, history, or precedent,” lawmakers argued.
While urging Appeals Court judges to uphold the trial court’s decision on five boards and commissions, legislative leaders called for a reversal of the decisions involving the Economic Investment Committee and Board of Transportation.
“The EIC and BOT … do not exercise final executive authority.,” lawmakers’ lawyers wrote. “Instead, the EIC performs a primarily legislative function that requires it to award economic incentive grants that commit the State to make appropriations in future years. Likewise, the BOT’s functions have changed over time such that its role is primarily one of oversight, and accordingly is the type of board over which the [Supreme] Court in McCrory explained the Legislature would have greater latitude.”
Cooper’s lawyers call for the opposite result. They want Appeals Court judges to uphold the trial court’s decision involving the economic investment and transportation groups, while reversing the decision about the other five groups.
“In violation of separation of powers, Session Law 2023-136 (‘SB 512’) and Session Law 2023-108 (‘HB 488’) attempt to usurp the Governor’s constitutional authority to execute the laws made by the General Assembly and give that power to the legislature and its allies in varying combinations,” the governor’s Greensboro-based private lawyers wrote. “The clear aim of the legislation is to ensure that indisputably executive agencies execute the laws enacted by the General Assembly in the manner preferred by the General Assembly, not the Governor.”
“While settled constitutional interpretation has approved some legislative involvement in appointments to executive boards and commissions, no precedent allows the General Assembly to eliminate the Governor’s power to appoint a majority of members, remove them when appropriate, and supervise them through selection of the chair or the threat of removal. Indeed, binding Supreme Court precedent commands otherwise,” Cooper’s lawyers added.
“North Carolina’s constitutional history confirms that our founders never intended the legislative hegemony for which Legislative Defendants advocate,” the governor’s lawyers argued. “And our appellate courts have repeatedly, for the last forty years, reaffirmed the Constitution’s foundational commitment to separation of powers and the Governor’s authority to control executive agencies.”
Justice Department lawyers working for Stein, the Democratic nominee to replace Cooper as governor after this fall’s election, filed a separate brief on behalf of the state, named as a defendant in the case along with top legislators.
The Justice Department brief supported Cooper’s arguments. “The laws restrict the Governor’s ability to exert control over these boards and commissions and ensure that the laws are faithfully executed,” state government lawyers wrote. “They do so by depriving the Governor of the right to appoint the majority of the boards’ members and the boards’ Chairs; diminishing the Governor’s ability to remove the boards’ members; and eliminating the ability of the Governor’s appointees to take action without the support of members whom the Governor does not appoint.”
“Our Supreme Court has held that this kind of interference with the Governor’s take-care obligations runs afoul of the constitutional separation of powers.”
Neither Cooper v. Berger case has been scheduled yet for oral arguments before the Appeals Court.