Cooper and GOP lawmakers fight over appointments to the NC Court of Appeals

Gov. Roy Cooper and state lawmakers are taking their dispute over the appointments of seven state boards and commissions to North Carolina's second highest court.

Cooper, lawmakers and attorneys from Attorney General Josh Stein's Justice Department filed briefs Tuesday with the North Carolina Court of Appeals in a case called Cooper v. Berger.

It is one of two active legal battles between Cooper, a Democrat, and the Republican leaders of the House and Senate. The other is a fight over control of appointments to the State Board of Elections.

Both cases are before the appeals court after the state Supreme Court rejected the Legislature's request to take the cases without intermediate court review.

In the fight over the appointments, a three-judge Supreme Court panel in February unanimously approved changes the Legislature had made to the appointment process for the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Public Health Commission and a new housing law. maintain advice. The same panel rejected lawmakers' changes to the state's Economic Investment Committee and Department of Transportation.

Cooper and legislative leaders both appealed. Leading lawmakers objected to the three-judge panel's decision to reject changes to two panels.

“Last fall, the General Assembly overrode Governor Cooper’s vetoes and passed two bills – Session Law 2023-136 (Senate Bill 512) and Session Law 2023-108 (House Bill 488) – that would change the appointment structures of certain statutory bodies and Commissions changed. “ wrote the lawmakers’ lawyers. “The express purpose of these measures was to 'increase the accountability of public boards and commissions to the citizens of North Carolina'.”

“Accordingly, the bills sought to disperse power over the boards and commissions in question by establishing a series of structures that would divide appointments between the governor, members of the State Council, certain outside professional groups with relevant expertise, and the House of Representatives and the Senate divided. ” the letter continued.

“Governor Cooper, however, sued to stop Senate Bill 512 and House Bill 488, saying they 'fail to respect fundamental principles of representative government' and, if implemented, would lead to 'tyranny.'” , the lawmakers' lawyers added. “And just a week later, the governor filed another lawsuit challenging legislative efforts to create a bipartisan elections board. Why? Because in the governor's view, the separation of powers requires that he, and he alone, must have “sufficient control” over each board and commission to ensure that it is “implemented.”[s] “Executive policy” in a way that is “consistent with its views and priorities.”

“Therefore, the Governor believes that the Constitution requires that he has the authority to appoint a majority of all boards and commissions established by the General Assembly,” the lawmakers’ letter continued. “But nothing in the Constitution gives the governor the authority to appoint statutory officers.”

Cooper cites the state Supreme Court's “broken opinions” in two previous disputes between lawmakers and two governors: Republican Pat McCrory in 2016 and Cooper in 2018. Those decisions “seem at odds with our constitutional text, our history, or… to stand by our precedent,” the lawmakers argued.

While urging appeals court judges to uphold the trial court's ruling on five boards and commissions, lawmakers called for a reversal of decisions involving the Economic Investment Committee and the Board of Transportation.

“EIC and BOT … do not exercise final executive authority,” the lawmakers’ lawyers wrote. “Instead, the EIC performs a primarily legislative function that requires it to issue economic stimulus grants that require the state to provide funding in future years. Likewise, the functions of the BOT have changed over time so that its role is primarily supervisory, and accordingly is the type of body the BOT has [Supreme] The court in McCrory said the Legislature had greater latitude.”

Cooper's lawyers are demanding the opposite result. They want the appeals court judges to uphold the trial court's decision regarding the economic investment and transportation groups and reverse the decision regarding the other five groups.

“In violation of the separation of powers, Sessions Bill 2023-136 ('SB 512') and Sessions Bill 2023-108 ('HB 488') attempt to usurp the Governor's constitutional authority to execute laws enacted by the General Assembly and to use them grant power to the Legislature and its allies in various combinations,” the governor’s Greensboro-based private attorneys wrote. “The clear purpose of the legislation is to ensure that indisputable executive authorities carry out the laws enacted by the General Assembly in the manner preferred by the General Assembly, not the Governor.”

“While settled constitutional interpretation has authorized some legislative involvement in the appointment of executive boards and commissions, there is no precedent authorizing the General Assembly to override the Governor's power to appoint a majority of the members, appoint them as appropriate, and replace them by the To oversee selection of the chairman, lift the threat of removal. In fact, binding Supreme Court precedent commands otherwise,” Cooper’s lawyers added.

“North Carolina’s constitutional history confirms that our founders never intended the legislative hegemony that the Legislative Defendants advocate,” the governor’s lawyers argued. “And our appeals courts have repeatedly over the last forty years reaffirmed the Constitution’s fundamental commitment to separation of powers and the governor’s authority to control executive agencies.”

Justice Department lawyers working for Stein, the Democratic candidate set to replace Cooper as governor after this fall's election, filed a separate brief on behalf of the state, which was named as a defendant in the case along with top lawmakers.

The Justice Department's letter supported Cooper's arguments. “The laws limit the Governor’s ability to exercise control over these boards and commissions and to ensure that the laws are faithfully implemented,” attorneys for the state government wrote. “They do this by taking away the governor’s right to appoint the majority of board members and chief executive officers; limiting the governor's ability to remove board members; and eliminating the ability of those appointed by the Governor to take action without the assistance of members whom the Governor does not appoint.”

“Our Supreme Court has ruled that this type of interference with the governor’s fiduciary duties violates the constitutional separation of powers.”

Neither case, Cooper v. Berger, is scheduled for oral argument before the Court of Appeals.