Cooper seeks Berger’s recusal, urges top NC court to avoid elections, appointments cases

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  • Gov. Roy Cooper is asking the North Carolina Supreme Court not to take two cases pitting the Democratic governor against top Republican legislative leaders.
  • Cooper's lawyers also have filed paperwork seeking recusal "or disqualification" of Justice Phil Berger Jr. in the two cases. Berger's father leads the state Senate. The older Berger is named as lead defendant in both cases.
  • One case involves Cooper's challenge to a state law that would remake the composition of the State Board of Elections and county elections boards. The other case involves Cooper's opposition to appointments changes for seven other state boards and commissions.

Gov. Roy Cooper is asking the North Carolina Supreme Court to steer clear of two cases pitting the governor against top legislative leaders. At the same time, Cooper seeks Justice Phil Berger Jr.’s recusal “or disqualification” from both cases.

State legislative leaders filed petitions in May asking the state’s highest court to take the two cases titled Cooper v. Berger. One case deals with Cooper’s challenge to a law remaking the composition of the State Board of Elections and county elections boards. The other involves Cooper’s opposition to appointments changes for seven other state boards and commissions.

Both cases pit the Democratic governor against top Republican legislative leaders. Both cases sit now at the state Appeals Court.

Lawyers representing Cooper filed paperwork Tuesday urging the state Supreme Court to reject both petitions. The governor’s lawyers filed separate documents arguing against Berger Jr.’s participation in either case.

“Senate Bill 749 will give Senate President Pro Tempore Philip E. Berger — personally — new powers and extensive control over the State Board of Elections and 100 county boards of elections,” Cooper’s lawyers wrote in one document labeled a “motion and suggestion of recusal or disqualification” for Berger Jr. “Associate Justice Philip Berger, Jr. is Senator Berger’s son. As a result, recusal is required under both the North Carolina Code of Judicial Conduct and the Due Process Clause of the Fourteenth Amendment to the United State Constitution because, aside from being a named defendant in this case, Senator Berger would personally and individually benefit if the challenged law takes effect.”

“This Court should avoid the appearance of partiality that would necessarily and inevitably result from allowing a justice with a substantial personal interest in the outcome of the case to help decide it,” Cooper’s lawyers wrote.

Early in the document, Cooper “respectfully requests that Associate Justice Berger recuse himself in this case.” At the end of the document, the wording changes. Cooper requests that Berger Jr. “recuse or be disqualified from participation” in the case. Cooper’s lawyers used similar language in their request for Berger Jr.’s recusal in the appointments case.

Under state Supreme Court rules, each justice can decide whether to participate in a case. The justice also can refer the decision to a vote of the other six justices.

A separate court filing spells out Cooper’s objection to the state Supreme Court taking the elections board case at all.

“Legislative Defendants seek the extraordinary step of bypass review because they know the North Carolina Constitution and existing precedent make Session Law 2023-139 (‘Senate Bill 749’) unconstitutional,” the governor’s lawyers wrote. “Through their Petition, Legislative Defendants invite this Court to ignore the public interest and the clear results of a recent public vote about amending our Constitution, jettison stare decisis, and reinterpret our Constitution and the political question doctrine so that separation of powers is no longer an enforceable constitutional limitation. This Court should decline that dangerous invitation.”

In the separate legal dispute over appointments to seven state boards and commissions, Cooper’s lawyers urged the high court to consider “the State’s public policy to ensure uniform treatment of appeals.”

A change in state law in 2016 eliminated a provision giving the state Supreme Court direct review of court judgments striking down acts of the General Assembly for constitutional or federal law violations, the court filing noted.

“Consistent with the General Assembly’s expressed policy preferences for the handling of constitutional appeals and the public interest in the evenhanded treatment of all litigants, this Court should reject bypass review and reaffirm that separation of powers disputes, like other appeals, generally should proceed first in the Court of Appeals,” the governor’s lawyers wrote.

The state’s high court would have to bypass the Court of Appeals to take the two Cooper v. Berger cases. Republicans outnumber Democrats, 5-2, on the state Supreme Court. Republicans outnumber Democrats, 11-4, on the Appeals Court. That court hears cases in three-judge panels.

In one of the current Cooper v. Berger disputes, a unanimous three-judge Superior Court panel ruled in Cooper’s favor and against the General Assembly’s plan to remake appointments to the State Board of Elections. In the second case, a different unanimous three-judge panel upheld five of seven state boards and commissions Cooper had targeted because of appointments changes.

“Governor Cooper filed the suit below arguing that under no set of circumstances would it be constitutional to create a bipartisan, even-numbered board to manage the election laws of North Carolina,” wrote lawyers representing Senate Leader Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in the first case. “Under the Governor’s view of
executive power, any discretion in executing those laws must carry forward only his
views and priorities.”

“As this Court has done with previous cases presenting similar issues, it should allow this bypass petition to review the foundational constitutional questions presented by this appeal,” wrote lawyers representing lawmakers in the second case. “The answers to those questions impact not only the structure of the seven public boards and commissions at issue in this case, but also the General Assembly’s authority to organize (and reorganize) agencies of State government.”

State lawmakers overrode Cooper’s vetoes in 2023 to approve bills changing appointments to boards and commissions. “[T]he 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,” according to the state Supreme Court petition.

“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’ wrote.

“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,’” the Supreme Court petition continued.

“As a result, he contends the Constitution requires that he have the power to appoint a majority of every board and commission the General Assembly creates,” lawmakers’ lawyers wrote. “But no provision of the Constitution gives the Governor power to appoint statutory officials.”

Cooper is relying on two precedent cases, McCrory v. Berger from 2016 and an earlier Cooper v. Berger ruling from 2018, “decisions which drew sharp dissents, and which cannot be squared with constitutional text, history, or precedent,” according to the legislative leaders’ lawyers.

Lawmakers contrasted the Superior Court panels’ responses to the two current Cooper v. Berger disputes.

“The panel in this case issued summary judgment enjoining Senate Bill 512’s changes with respect to two boards and commissions, but denying the Governors’ claims as to the others,” one Supreme Court petition explained. “That ruling stands in contrast to the one issued just a week later by the separate panel hearing the Governor’s challenge to the Board of Elections.”

“The panel’s decision in that case failed [to] find any basis to distinguish McCrory and Cooper I, and accordingly doubled down on the notion that that every board and commission — including those charged with overseeing elections — must be beholden to the Governor,” lawmakers’ lawyers argued. “Both cases thus bring into sharp focus whether the test established by McCrory and Cooper I is consistent with separation of powers enshrined in our Constitution, or, on the other hand, seeks to insert the judiciary into a nonjusticiable political question for which there are no judicially manageable standards.”

The state Supreme Court’s review of both cases “is necessary to consider whether McCrory and Cooper I should be overruled, provide needed guidance concerning the fundamental constitutional questions raised by the Governor’s claims, and resolve any lingering uncertainty regarding the proper composition of the boards and commissions at issue,” according to the petition.

In the elections board case, Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an order in March striking down elections board changes incorporated last year in Senate Bill 749. Wilson is a Democrat. Hamilton and Womble are Republicans.

Legislative leaders appealed that ruling.

In the broader appointments case, Superior Court Judges John Dunlow, Dawn Layton, and Paul Holcombe issued an order upholding changes to the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The panel struck down changes to the state’s Economic Investment Committee and Board of Transportation. Dunlow and Holcombe are Republicans. Layton is a Democrat.

In addition to legislative leaders, Cooper appealed the three-judge panel’s ruling in the appointments case.