News: CJ Exclusives

Cooper’s three court losses won’t end fights with lawmakers, experts say

Political scientists Taylor and McLennan note the governor will appeal, keeping the battles over separation of powers alive

Gov. Roy Cooper took three strikes in Wake County Superior Court this week as judges ruled in favor of the General Assembly in a continuing battle over separation of powers.

Political analysts say the rulings, while an immediate defeat for Cooper, aren’t the end of the story. The setbacks involved legal fights between Cooper and lawmakers covering the Opportunity Scholarship Program, the number of judges on the state Court of Appeals, and spending a large legal settlement with Volkswagen.

Andy Taylor, professor of political science at the School of International and Public Affairs at N.C. State University, said the squabbling between the governor and the General Assembly probably won’t end anytime soon.

“These are just three skirmishes in a broader war over a separation of powers that has been going on as a result of us having a divided government,” Taylor said. “The North Carolina constitution does make the governor fairly weak as compared to governorships in the rest of the country.”

But Cooper — who first sued the General Assembly in December 2016 — will appeal, so the fight continues.

“This was the first step in the judicial process,” Ford Porter, Cooper’s press secretary, said. “We remain confident in the merits of our claims and look forward to having them heard by appellate courts.”

David McLennan, professor of political science at Meredith College, said the recent court decisions are defeats for Cooper on policy and political fronts.

“Because he lost all three judgments, it allows Republicans to claim the governor is bringing frivolous lawsuits and wasting taxpayer money,” McLennan said.

Still, McLennan argued Cooper won’t suffer as much in the long run.

“The legislature, with its current composition, was likely to fund Opportunity Scholarships and appropriate the federal funds the way they wished,” McLennan said. “By the time the governor runs for re-election, as expected in 2020, these cases will be a footnote in history.”

The respective parties are weighing in, nevertheless.

House Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, shared their thoughts on the ruling in a news release.

“We are pleased the court stopped some of Gov. Cooper’s latest attempted power grabs and urge him to abandon these self-serving lawsuits,” Moore said.

“Appropriating public funds is such an important responsibility that our constitution gives that authority to 170 of the people’s elected representatives — not to one single politician, whose job is to execute the law rather than attempt to make his own,” Berger argued.

In one instance, the governor grappled with General Assembly leaders over who was responsible for millions of dollars in a settlement with Volkswagen. The $183 million results from a settlement with the federal government over VW’s violations of the Clean Air Act.

Cooper argued that, through the Department of Environmental Quality, his office could control how the money was spent. Cooper also claimed constitutional authority over how to spend various federal block grants. Berger and Moore contended the legislative branch was responsible for appropriating those funds.

Superior Court Judge Henry Hight Jr. ruled alone in the VW settlement case. Hight argued the General Assembly has the stronger claim to the settlement funds.

“The budget process — under which the Governor recommends a budget, the General Assembly enacts the budget, and the Governor administers the budget — is constitutionally mandated,” Hight ruled.

Hight argued there’s no basis in the Constitution or in state court precedent to deviate from the budget and appropriation process.

The other debates centered on the Opportunity Scholarships and the number of judges on the Court of Appeals. Cooper has argued House Bill 239, which reduces the number of judges on the Court of Appeals from 15 to 12, restricts his constitutional authority to appoint judges.

Cooper has also objected to a provision in the 2017 budget law that includes funding for the Opportunity Scholarships for the next 10 years. Judges Jay Hockenbury and Nathaniel Poovey ruled for the General Assembly and rejected Cooper’s argument that either act infringed on his constitutional duties. Hight dissented.

Hockenbury and Poovey said the governor failed to prove the General Assembly acted unconstitutionally by reducing the number of positions on the Court of Appeals. H.B. 239 would eliminate the three positions as judges retired, so the law wouldn’t affect Cooper’s ability to appoint replacements for seats that no longer existed.

The court also ruled Cooper’s constitutional right to recommend a budget wasn’t infringed by the legislature’s requirement to include certain provisions, such as the Opportunity Scholarships, in the base budget.