Cooper, state appeal appointments lawsuit ruling upholding 5 of 7 targeted boards

Gov. Roy Cooper at Council of State Source: Jacob Emmons, Carolina Journal

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  • Gov. Roy Cooper and lawyers representing state government's executive branch are appealing a three-judge panel's ruling upholding appointments to five of seven boards Cooper targeted in a lawsuit.
  • Legislative leaders also have appealed the ruling. The case titled Cooper v. Berger now has three separate appeals.
  • This case is distinct from a separate Cooper v. Berger dispute involving appointments to state and local elections boards. A different three-judge panel delivered Cooper a victory Friday in that case.

Gov. Roy Cooper and lawyers representing state government’s executive branch are appealing a February court ruling upholding appointments to five of seven state boards Cooper targeted in a lawsuit.

Lawyers for Cooper and the state filed separate notices of appeal Monday. They object to a three-judge panel’s ruling in a case titled Cooper v. Berger. In a separate case, also called Cooper v. Berger, a different three-judge panel favored Cooper in a fight with legislative leaders over changes to the state elections board.

In the appointments case, there are now three appeals. State legislative leaders filed a notice of appeal on March 1. The three-judge panel issued its ruling on Feb. 28.

The Democratic governor had argued that all seven targeted boards violated the state constitution because Republican lawmakers took away Cooper’s appointment powers.

The panel’s order upheld changes to the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council.

Superior Court Judges John Dunlow, Dawn Layton, and Paul Holcombe struck down changes to the state’s Economic Investment Committee and Board of Transportation.

Cooper had mounted a “facial” constitutional challenge against the appointment changes included in Senate Bill 512 and House Bill 488. That means the governor argued that the laws were unconstitutional under every possible scenario.

“Facial challenges to acts of the General Assembly are the ‘most difficult challenge to mount successfully,’” the three-judge panel noted in its 24-page order. “Facial challenges are ‘seldom’ upheld ‘because it is the role of the legislature, rather than [a] Court, to balance disparate interests and find a workable compromise among them.’”

“The Court must presume that laws passed by the General Assembly are constitutional,” the order added. “The burden to overcome the presumption of constitutionality is high.

The judiciary cannot declare a law invalid unless its ‘unconstitutionality be determined beyond reasonable doubt.’”

Judges determined that Cooper had failed to “establish beyond a reasonable doubt” that changes to the five boards upheld in the order violated the separation of powers.

“Although, the Governor contends that all the challenged statutes violate the separation of powers, the Governor has not explicitly identified the specific ways in which either Senate Bill 512 or House Bill 488 is incompatible with faithful execution of the laws,” the panel wrote.

In the case of the Economic Investment Committee, the judges objected to the General Assembly adding two of its own members to a five-member group that administers state targeted incentives programs. “Plaintiff has proven beyond a reasonable doubt that Senate Bill 512’s structuring of the EIC interferes with a core power of the executive and violates separation of powers.”

The panel also rejected a Board of Transportation that would feature 14 members appointed by the General Assembly and six by Cooper. “[T]he Governor does not maintain enough control over the BOT to comply with his duty to take care that the laws are faithfully executed,” judges wrote.

The decision arrived 12 days after the panel held a hearing in the case. At that time, the judges rejected Cooper’s request for a preliminary injunction against recent action from the Environmental Management Commission.

Cooper’s legal team argued on Feb. 16 that state laws removing some of his appointment power violated the state constitution’s separation of powers. Jim Phillips, Cooper’s private attorney, labeled the changes “shocking” and “breathtaking.”

“The legislature doesn’t get to enact a law and then enforce it,” Phillips said during the hearing at the Wake County courthouse in Raleigh.

While the legal battle pits a Democratic governor against Republican lawmakers, “This isn’t a political case,” Phillips argued. It’s about protecting the powers of Cooper — and future governors — against legislative encroachment.

Phillips defended the separation of powers. “It’s quite frankly part of the genius that has allowed us to remain free.”

Representing state House and Senate leaders, attorney Matthew Tilley challenged Cooper’s argument that the governor must maintain control over the outcomes of state board votes.

The boards are “not mere alter egos of the governor,” Tilley said. If Cooper maintained control over the boards’ decisions, “there would be no need for boards and commissions. There would be no need for independent minds.”

Board appointments represent a “method of checking” the governor’s power, Tilley added, “ensuring that all power does not accumulate in one individual.”

Dunlow and Holcombe are Republicans. Layton is a Democrat.

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.”