Three-judge panel blocks part of new law in appointments fight between Cooper, lawmakers

State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore

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  • A three-judge Superior Court panel granted part of Gov. Roy Cooper's request for an injunction against a new state law shifting government appointment powers.
  • Judges blocked portions of the law dealing with the state Economic Investment Committee, Commission for Public Health, and Board of Transportation. The panel did not block changes to appointments for the state Environmental Management Commission and Coastal Resources Commission.
  • The panel heard two hours of arguments Wednesday morning from lawyers representing Gov. Roy Cooper and state legislative leaders.

A three-judge Superior Court panel has blocked part of a new state law that shifts some government board appointment powers from Gov. Roy Cooper to the Republican-controlled General Assembly or other executive officers.

The judges granted a preliminary injunction against changes to appointments to the state Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the Environmental Management Commission and Coastal Resources Commission.

Judges announced the decision after two hours of arguments in the case Wednesday morning in Raleigh. The panel also called for both sides in the case to submit a plan by Nov. 15 for moving forward toward a trial.

“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, near the end of a 48-minute opening argument. “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’s 42-minute argument 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.”

Superior Court Judges John Dunlow, Paul Holcombe, and Dawn Layton serve as the three-judge panel overseeing the case titled Cooper v Berger. 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.

The North Carolina Home Builders Association filed paperwork last week opposing Cooper’s request for an injunction. The left-of-center Southern Environmental Law Center filed a competing brief supporting Cooper’s request. The three judges agreed to consider those briefs.

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 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 Wednesday 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.”

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.