Home Builders oppose Cooper’s injunction request in appointments dispute

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  • The North Carolina Home Builders Association is asking Superior Court judges to reject Gov. Roy Cooper's request for an injunction against new laws dealing with appointments to government boards.
  • Home builders focused on a section of House Bill 488 that creates a new state Residential Code Council.
  • The council is scheduled to take effect on Jan. 1, 2025, the day after Cooper leaves office. Home builders argue that a preliminary injunction is not needed as the governor challenges the new group.

The North Carolina Home Builders Association is asking a court to reject Gov. Roy Cooper’s request for an injunction against new state appointments laws. An injunction could block a new state Residential Code Council scheduled to take effect in 2025.

Home builders filed a motion Friday to submit a friend-of-the-court brief to a three-judge Superior Court panel. The panel is scheduled to hear arguments Wednesday in Cooper v. Berger. That case challenges provisions of two laws enacted over the governor’s veto. Both involve changes in appointment authority for state government boards.

The Home Builders Association focused its request on challenged provisions of House Bill 488.

“NCHBA was the major proponent of HB 488 (Session Law 2023-108), working closely with legislators from the bill’s first introduction through its enactment, brought about by the General Assembly’s override of the Governor’s veto,” according to the home builders’ motion. “Session Law 2023-108 will introduce a new building code agency in 2025, the Residential Code Council, which will be responsible for maintaining and revising North Carolina’s residential building code and the other codes related to residential construction.”

“NCHBA believes that the new Residential Code Council will maintain and revise the residential building code in a manner that will better reflect the concerns and needs of our citizens, by insuring safe and well-built housing while keeping housing affordability as a major consideration,” home builders’ lawyers wrote.

The brief focused on the “narrow, but important” issue of Cooper’s request for a preliminary injunction. Challenged sections of H.B. 488 are scheduled to take effect on Jan. 1, 2025, the day after Cooper’s term as governor will end.

“Because the Governor is not in danger of immediate harm, a preliminary injunction at the outset of this lawsuit is not needed to maintain the status quo,” home builders’ lawyers argued.

The home builders’ brief offered details about the new residential code group.

“Pursuant to Section 143-136.1(a), the Governor will appoint seven members to the Residential Code Council, while the General Assembly will appoint the remaining six members,” home builders’ lawyers wrote. “[T]he Residential Code Council must have a quorum of nine members to transact business and nine members must vote to approve any action by the Council, including revisions to the Residential Building Code.”

“Governor Cooper objects to Session Law 2023-108 as commandeering his constitutional powers to enforce laws by allocating the Governor a ‘slim majority’ of Council appointees whose objectives, due to the Council’s nine-vote requirement, could be impeded by other appointees,” according to the brief. “Although NCHBA disagrees with the Governor’s view on the constitutionality of Session Law 2023-108, the Association’s primary opposition to the Governor’s request for immediate injunctive relief is that the Governor will suffer no immediate harm absent a preliminary injunction.”

“Sections 143-136.1 and 143-137.1 will not go into effect for another fourteen months,” home builders’ lawyers added. “Thus, even if the Governor were correct about the constitutionality of the laws, the Governor is not at risk of suffering any imminent harm. At this early stage in the lawsuit, the Governor cannot show that injunctive relief is needed ‘during the litigation’ to avoid irreparable harm.”

“[T]here is a question of whether Governor Cooper could suffer any harm, given that the Residential Code Council will not exist until after the Governor’s term,” the brief continued.

“Further counseling against the issuance of a premature preliminary injunction is the presumptive constitutionality of Session Law 2023-108,” according to home builders’ lawyers. “Unless the Governor can show that Session Law 2023-108 violates the North Carolina constitution ‘beyond reasonable doubt,’ the General Assembly will prevail in its defense of its laws. This presumption of constitutionality, when coupled with the lack of imminent harm faced by the Governor, tips the balance of equities decidedly against preliminarily enjoining Session Law 2023-108.”

Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targets 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 Senate Bill 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.”  

Cooper seeks an injunction blocking portions of the two challenged laws dealing with the Economic Investment Committee, the Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, and Residential Code Council.

Superior Court Judges John Dunlow, Paul Holcombe, and Dawn Layton will serve as the three-judge panel overseeing the case. Dunlow and Holcombe are Republicans. Layton is a Democrat. Dunlow serves as resident Superior Court judge in Granville County. Holcombe’s judicial district covers Johnston County. Layton’s district covers Anson, Richmond, and Scotland counties.

State Supreme Court Chief Justice Paul Newby, a Republican, appoints three-judge panels to consider lawsuits involving a facial challenge to a state law.

Cooper filed an objection in the case on Oct. 19. The governor criticized the court for refusing to hold a hearing on his request for a temporary restraining order.