Judges see past Cooper’s rhetoric in appointments battle

Lawyers for Gov. Roy Cooper labeled the changes “shocking” and “breathtaking.” The governor himself complained about a “blatantly unconstitutional legislative power grab.”

But a bipartisan group of Superior Court judges saw a much different picture. In a unanimous Feb. 28 decision, the judges rejected most of Cooper’s challenges to new state laws affecting appointments to North Carolina government boards and commissions.

The three-judge panel upheld five of seven newly constituted state boards targeted in a Cooper lawsuit. Regardless of the rhetoric from the governor and his legal team, judges determined that the Republican-led General Assembly had the authority to shift appointments in the manner spelled out in state law.

The new boards address important topics: the environment, wildlife, building codes, the coastline, and public health. The governor’s legal arguments failed to convince judges that changes to board appointments clearly violated state constitutional principles.

Cooper had challenged the appointments laws “on their face,” meaning he believed there was no circumstance in which the changes could comply with North Carolina’s governing document.

“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 continued. “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.’”

The panel concluded that Cooper had failed to “establish beyond a reasonable doubt” that changes to the five boards upheld in the order violated the constitution.

“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.

The scenario doesn’t sound as “blatantly unconstitutional” as the governor tried to suggest. Judges did not appear to be shocked by appointment changes tied to SB 512 and HB 488. Nor did the appointment shifts take their collective breath away.

Yet the panel did not reject Cooper’s arguments out of hand.

Judges ruled that state lawmakers had overstepped their bounds by appointing two of their own members to an existing five-person Economic Investment Committee. That’s the group that approves deals for North Carolina’s targeted tax-incentives programs.

The panel also rejected a plan to fill 14 of 20 members of the state Board of Transportation with legislative appointments. Cooper would not “maintain enough control over the BOT to comply with his duty to take care that the laws are faithfully executed,” according to the Feb. 28 order.

The concept of control has played a key role in the litigation. In January, Cooper followed up his initial version of the appointments lawsuit by challenging a decision of the newly constituted Environmental Management Commission. The EMC voted to drop a separate lawsuit that the governor wanted to pursue. He convinced a sympathetic judge to issue a temporary order blocking the EMC’s decision.

But the three-judge panel reversed that ruling. It allowed the environmental group to proceed with its plans. Cooper did not secure a de facto veto over EMC decisions.

Perhaps the judges agreed with arguments presented in court by Matthew Tilley, who represented top legislative leaders.

State government 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.”

Cooper labeled the appointments changes “bad for people and bad for our democracy” when he initially filed suit last fall. He’s entitled to that opinion. He’s free to lobby in favor of shifting state board appointments back to the governor’s office.

But his efforts to use the courts to do his bidding face clear limitations. No matter the volume of over-the-top rhetoric, neither the governor nor his legal team can overcome clear aspects of the separation of powers.

The legislature writes laws. Unless those laws violate the North Carolina Constitution, “beyond a reasonable doubt,” they will withstand attacks from a hostile governor. To win the relief he seeks, he will likely need to focus more time on the ballot box than the courtroom.

Mitch Kokai is senior political analyst for the John Locke Foundation.