- The political power struggle tied to Senate Bill 382 has worked its way into court filings in the Cooper v. Berger case involving appointments to seven state boards and commissions.
- The North Carolina Court of Appeals will decide whether to uphold a trial court's decision to uphold appointment changes to five state boards and reject two others challenged by Gov. Roy Cooper.
- Lawyers for the Democrat Cooper and Republican legislative leaders filed competing briefs in the case Thursday.
The recent political dispute over Senate Bill 382 has worked its way into court filings in the Cooper v. Berger court case involving appointments to seven state boards and commissions. The North Carolina Court of Appeals is scheduled to hear the case in the coming months.
Gov. Roy Cooper challenged portions of two state laws — Senate Bill 512 and House Bill 488 — that changed appointment structures of the seven boards. Cooper, a Democrat, argued that the Republican-led General Assembly violated the state constitution when it shifted appointments away from his office.
A three-judge Superior Court panel upheld changes to five boards, but struck down the other two. Both Cooper and legislative leaders appealed.
“Although Legislative Defendants deny any intent to impose legislative hegemony, their actions speak louder than words,” Cooper’s lawyers wrote in a brief filed Thursday. “After more than three million North Carolinians voted for Governor-elect [Josh] Stein, Legislative Defendants passed SB 382 over the Governor’s veto, undermining the people’s mandate and stripping the Governor’s office of more executive power.”
“For example, Legislative Defendants — emboldened by their win in the trial court here — handed complete control of the State Board of Elections to the State Auditor,” the court filing continued. “Having been given an inch, Legislative Defendants have taken a mile, making clear their desire to control the creation and execution of the laws.”
“Legislative Defendants view separation of powers as a political problem to be solved with legislative sleights-of-hand and creative lawyering, hoping that voters and the courts won’t notice or care,” Cooper’s lawyers wrote. “But separating the powers accorded our state government by the people is foundational to our republican form of government. It is a fundamental guiding principle, enacted by the people to prevent tyranny. By enacting SB 512 (and now, SB 382), Legislative Defendants make a mockery of the guardrails put in place by the people, shifting core executive powers like Monopoly pieces to whichever Council of State member currently enjoys their favor. This approach is fundamentally inconsistent with constitutional government and individual liberty.”
Legislative leaders filed a competing brief Thursday in the Cooper v. Berger appointments dispute.
“Make no mistake: The Governor’s challenge to Senate Bill 512 and House Bill 488 represents an effort to extend McCrory1 and Cooper I,” court precedents from 2016 and 2018, respectively, lawmakers’ lawyers wrote. “No appellate decision has ever addressed the appointment structures here, much less held they are unconstitutional when applied to these boards and commissions. Similarly, no decision has ever held that all executive power must be consolidated in a unitary executive in the form of the Governor.”
“Nor has any decision held that it is unconstitutional for the General Assembly to allocate a majority of appointments to the executive branch merely because those appointments are divided between the Governor and another elected Council of State member,” legislators’ court filing continued. “And no decision has ever held that, to faithfully execute the State’s laws, the Governor must appoint a majority of every board and commission regardless of its purpose or function.”
The three-judge panel “rightly concluded that the Constitution does not prohibit the General Assembly’s changes to the five boards and commissions upheld on summary judgment,” lawmakers’ lawyers argued.
“The Governor’s position would result in a usurpation of legislative authority by the executive — not vice versa. Our Constitution reserves the power to organize State agencies, and to decide who appoints statutory officials, for the People acting through the General Assembly. In doing so, it grants the People the right to structure their government to ensure officials carry out the General Assembly’s policies. The Governor seeks to upend that carefully wrought system,” the court filing added.
“All told, the Governor cannot show how any of the laws at issue violate the separation of powers or prevent him from exercising a core executive power,” legislative leaders’ lawyers wrote. “Instead, he advocates a position that aggrandizes executive power above all else — a regime that the Governor’s own authorities, and our Founders, recognized as the very definition of ‘tyranny.’”
“Senate Bill 512 and House Bill 488 reflect a legitimate exercise of the General Assembly’s power to organize State government and to choose who appoints statutory officials,” the court filing continued.
The John Locke Foundation and North Carolina Institute for Constitutional Law filed a Nov. 21 brief supporting state legislative leaders in the Cooper v. Berger appointments battle.
“The crux of the controversy is whether the North Carolina Constitution gives a governor the power to control a majority of appointments to every board and commission, so that he may implement ‘executive policy’ consistent with ‘his views and priorities,’” wrote NCICL’s Jeanette Doran. “A three-judge panel of Superior Court judges decided below to consider the issue on a board by board (or commission by commission) basis, ultimately enjoining the challenged laws with respect to only two of the entities. Amici agree with the decision of the Superior Court panel and file this brief in support of Legislative Defendants-Appellees.”
Separation-of-powers violations occur “only when one branch exercises a power that the Constitution has allocated to another,” according to the brief.
“Given the language and history of the North Carolina Constitution, the people of North Carolina clearly intended for the General Assembly to have the authority to make appointments to boards or to assign the appointment authority to members of the Council of State,” Doran wrote. “Consequently, the exercise of that power to appoint does not infringe on a power reserved to another branch of state government.”