Newby steps into appointments fight between Cooper, legislators

Chief Justice Paul Newby of the Supreme Court of North Carolina (Carolina Journal photo)

Listen to this story (14 minutes)

  • State Supreme Court Chief Justice Paul Newby has stepped into the legal fight between Gov. Roy Cooper and state legislative leaders over appointments to government boards and commissions.
  • Newby issued an order Wednesday assigning the case to Superior Court Judge John Dunlow of Granville County. A Republican, Dunlow serves as the lead judge in a three-judge panel that has been dealing the case.
  • Dunlow issued an order Thursday delaying a hearing in the case from Thursday afternoon to Jan. 25.

State Supreme Court Chief Justice Paul Newby has stepped into the legal battle between Gov. Roy Cooper and Republican legislative leaders over appointments to state boards and commissions. A hearing in the case scheduled for Thursday afternoon has been delayed one week.

Newby issued an order Wednesday assigning the case to Superior Court Judge John Dunlow, A Republican, Dunlow is senior resident Superior Court judge in Granville County. He also has served as the lead judge in a three-judge panel that issued a ruling in the same case on Nov. 1.

Dunlow issued his own order Thursday morning delaying a hearing that had been scheduled for 2:30 p.m. Thursday. The hearing had been set to consider Cooper’s motion for a preliminary injunction blocking the state Environmental Management Commission from dropping its lawsuit against the Rules Review Commission.

Cooper’s legal filings tied that decision to EMC appointment changes the governor is challenging in court.

The hearing is now scheduled for Jan. 25 in Raleigh. In addition to Cooper’s request for a preliminary injunction, Dunlow will consider state lawmakers’ request to transfer the case back to a three-judge panel.

“This matter is before the Court upon its own motion and pursuant to the January 17, 2024,
Order of the Chief Justice of the Supreme Court of North Carolina assigning the Honorable John M. Dunlow to this action,” according to Thursday’s order.

A temporary restraining order favoring Cooper in the legal dispute remains in effect.

Top state lawmakers filed a motion Tuesday asking for the case to be transferred from a single Wake County judge.

Wake County Superior Court Judge Rebecca Holt granted Cooper a temporary restraining order Thursday. The order blocked the EMC from dropping the lawsuit.

Holt’s action was based on Cooper’s attempt to have Senate Bill 512 thrown out as unconstitutional. SB 512 included provisions changing appointments to the EMC.

Holt had scheduled the hearing Thursday afternoon on Cooper’s request for an injunction against the EMC’s action.

Lawyers working for Berger and House Speaker Tim Moore, R-Cleveland, argued in a court filing that the case should return to a three-judge panel that had been overseeing the dispute. The filing arrived on the same day as Cooper’s supplemental complaint.

“In his Supplemental Complaint, the Governor purports to bring what he calls an ‘as-applied challenge’ to Part II of Senate Bill 512 based on a recent vote by the EMC to voluntarily dismiss litigation it filed against the RRC related to its rejection of a rule proposed by the EMC,” legislative lawyers wrote. “The Governor disagrees with the decision to voluntarily dismiss the EMC v. RRC litigation.”

“In reality, the Governor’s Supplemental Complaint merely reasserts the same facial challenge to Senate Bill 512’s amendments to the EMC’s membership structure that he raised in his original Complaint,” the legislators’ motion continued.

“Specifically, the Governor’s purported ‘as-applied’ challenge (i) is predicated upon the same exact theory as his facial challenge, and (ii) explicitly seeks facial relief, i.e., total invalidation of the amendments to N.C. Gen. Stat. §§ 143B-283 & -284 in Part II of Senate Bill 512, which pertain to the EMC,” lawmakers’ lawyers explained.

“Thus, the Governor’s challenge is facial, and facial challenges to statutes must be submitted to a three-judge panel,” the motion continued.

A “facial challenge” means that a plaintiff asserts that a challenged law is unconstitutional under all circumstances and must be thrown out. An “as-applied challenge” means that a plaintiff objects to a law only in its application to the facts of the particular legal complaint. State law permits a single judge to consider as-applied challenges.

Legislators’ court filing also offered more details about the compressed timeline of Holt’s Jan. 11 order favoring Cooper in the appointments fight. At 11:24 that morning, Cooper’s lawyers announced plans to file a supplemental complaint, along with requests for a temporary restraining order and preliminary injunction. Holt scheduled the hearing for 4 p.m. the same day and delivered Cooper his temporary restraining order before 5:30 p.m.

Cooper’s lawyers argued that the EMC never would have dropped the suit if the governor had continued to maintain a majority of appointments to the environmental group.

The latest developments in this Cooper v. Berger case followed more than two months of relative inaction. On Nov. 1, a three-judge panel granted Cooper an injunction against parts of SB 512.  That bill, enacted into law last year over Cooper’s veto, changed the way members are appointed to various state government boards and commissions.

The Nov. 1 court order blocked proposed changes to the state’s Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the EMC and Coastal Resources Commission.

Cooper’s court filings explained why the governor renewed his request for action against EMC changes.

The state Supreme Court “has consistently reaffirmed that in our constitutional system, the duty to ‘take care that the laws be faithfully executed’ is expressly assigned to the Governor,” Cooper’s lawyers wrote. “In order to fulfill that constitutional obligation, the Governor must retain sufficient control over boards, commissions, and committees that perform executive functions. The Governor lacks sufficient control when he is unable to appoint, supervise, and remove a working majority of members to such boards, commissions, and committees.”

“Control of a working majority of the EMC has been reallocated to Commissioners who do not share the views and priorities of the Governor concerning execution of North Carolina’s environmental laws, as evidenced by the EMC’s recent vote purporting to dismiss critical litigation protecting the EMC’s rulemaking authority,” Cooper’s motion added.

“To prevent irreparable harm to the Governor’s constitutional obligation to ensure faithful execution of the law, and to preserve the status quo of the subject matter involved until a trial can be had on the merits, a temporary restraining order and preliminary injunction preventing the EMC from dismissing its lawsuit against the North Carolina Rules Review Commission is necessary,” the governor’s lawyers argued.

Before SB 512 took effect, Cooper had authority to appoint nine members of the 15-member EMC. Legislators appointed the other six members.

The challenged law shifted two of Cooper’s nine appointments to the state agriculture commissioner. Cooper is a Democrat. Ag Commissioner Steve Troxler and legislative leaders are Republicans.

Troxler’s appointees have joined the legislative appointees to “form a working majority on the EMC that has taken actions inconsistent with the Governor’s policy views and priorities with respect to how the EMC should execute the laws within its jurisdiction,”  according to Cooper’s motion.

That includes the commission’s decision to replace Robin Smith, a Cooper appointee, with John “JD” Solomon, a legislative appointee, as the group’s chair.

“Commissioner Solomon does not share the Governor’s policy views and priorities with respect to how the EMC should execute the laws that are within the jurisdiction of the EMC,” Cooper’s lawyers argued. “For example, Commissioner Solomon personally disagrees with the Governor’s policy views and priorities reflected in the EMC’s Proposed 1,4-Dioxane Amendments and the related Complaint in EMC vs. RRC.”

The proposed 1,4-Dioxane Amendments prompted the legal dispute between the environmental and rules review groups.

“[T]he Governor is likely to succeed in showing that he has in fact lost control of the EMC, and the EMC has exercised its control inconsistent with the Governor’s views and priorities with respect to ensuring faithful execution of the laws under the jurisdiction of the EMC,” the governor’s lawyers argued.

Legislative leaders filed paperwork in November asking the Superior Court panel to dismiss Cooper’s lawsuit.

The court should “dismiss Plaintiffs claims (a) due to lack of subject matter jurisdiction and (b) on the grounds that the Complaint fails to state claim upon which relief may be granted,” according to lawmakers’ motion.

Cooper’s “claims present nonjusticiable political questions,” and he “lacks standing” to challenge appointment changes “that will not take effect until after his term as Governor has ended.”

The Nov.1 injunction followed a hearing in Raleigh before the three-judge panel.

“Each of these boards is housed in an executive branch agency that is controlled by the governor,” argued Jim Phillips, an attorney representing Cooper. “Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, They issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina.”

“The General Assembly’s restructuring of these boards is unconstitutional,” Phillips added.

“This is our democracy that we’re talking about,” Phillips said. “This is about the checks and balances that keep our branches of government in their lanes.”

“It is the General Assembly’s job to set the policy of the state, to organize state government, and to place in that organization of government checks and mechanisms that ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people,” responded Matthew Tilley, the lawyer representing GOP legislative leaders.

Tilley rejected Cooper’s claim that previous court battles between the executive and legislative branches clearly favored the governor.

“There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions,” he said. “They require a case-by-case analysis.”

Dunlow and fellow Superior Court Judges Paul Holcombe and Dawn Layton served as the three-judge panel overseeing the Cooper v Berger appointments case. Dunlow and Holcombe are Republicans. Layton is a Democrat. Holcombe’s judicial district covers Johnston County. Layton’s district covers Anson, Richmond, and Scotland counties.

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.”  

Cooper originally asked for 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.

Changes to the wildlife and residential code groups are scheduled to take effect in 2025. Phillips agreed on Nov. 1 to set aside the request to block those changes now. Cooper could renew his pursuit of an injunction again if the rest of the case remains unresolved in 14 months.

Phillips accused state lawmakers of approving laws that fly in the face of state Supreme Court precedents from 1982, 2016, and 2018.

“The General Assembly knows that these statutes are unconstitutional,” Phillips argued Wednesday. “Speaker Moore has said so — said as much. ‘We think those cases were wrongly decided, and we want to give it another shot.’”

“It is the governor alone, not the General Assembly, not the Medical Society, not the Council of State, who is given the authority and the duty to ensure that the laws are faithfully executed.”

Phillips and Tilley offered contrasting views of the separation of powers.

“The General Assembly, and not the executive, is what is typically understood to be the primary policymaking branch of government,” Tilley said. “One way that it makes policy is through structure of boards and commissions.”

“To the extent that the governor has the ability to set executive policy, it is within the confines and the boundaries set by the General Assembly.”