NC judges reject Cooper’s request to block cabinet confirmation process

A three-judge panel has rejected Gov. Roy Cooper’s request to continue to block the new Cabinet approval process adopted by the General Assembly in December, but clarified that it’s the governor, not the state Senate, that launches any review of the key administrators.

The panel released its order on Tuesday in an ongoing legal battle between the Democrat in the executive office and the Republican leaders at the helm of both legislative chambers. The order lifts the temporary block that the Superior Court judges issued last week.

The gubernatorial Cabinet approval process, adopted in an emergency session after Cooper emerged victorious over Republican Pat McCrory, makes Cooper’s key administrators subject to Senate confirmation.

The order, signed by Superior Court judges Jesse Caldwell, Todd Burke and Jeff Foster late Tuesday afternoon, states that Cooper had not shown “irreparable harm” in asking for a further block of the process.

“It is incredibly encouraging that this court has shown judicial restraint and rejected Gov. Cooper’s extraordinary request to stop the people’s elected representatives from conducting a fair, open and transparent hearing process to determine whether his proposed cabinet secretaries are qualified, without conflicts of interest, and willing to follow the law,” Phil Berger, head of the state Senate, and Tim Moore, leader of the state House of Representatives, said in a joint statement.

But the judges’ ruling does not immediately give the Senate the power to continue with its confirmation process while the lawsuit challenging the law’s constitutionality winds through court.

Though Cooper has already announced the names of eight people he has selected for his 10-member Cabinet, he has not submitted any of them to the Senate for confirmation. So far, according to the ruling, Cooper’s appointments have been able to serve.

The Advice and Consent Amendment adopted by the lawmakers two months ago requires the governor to begin the process by first notifying the Senate of the nominee, “and the Senate cannot begin” that process, the order states, until the governor takes that action.

The legislators’ amendment also does not require a specific deadline for the governor to notify the Senate of any nominations, according to the judges’ order. The deadline set out in law for the governor to submit Cabinet nominees is May 15, the order states.

“We are satisfied with the ruling,” Ford Porter, a spokesman for the governor said in a statement. “The three judge panel has made clear that the ‘Senate cannot begin the advice and consent process until the Governor submits a nominee.’ The panel also found that the Governor has not submitted his nominees and has until May 15 to do so. The Governor plans to wait for the full hearing on the constitutionality of this law to go forward on March 7th before submitting his nominees, which he believes will not be necessary.”

Berger, in a discussion with reporters after the ruling, said he disagreed with the governor’s characterization of where his Cabinet members are in the process.

“Is the governor saying the people he has placed in these positions and had sworn in to occupy those positions, and presumably are receiving salaries for those positions, are not who he is going to nominate?” Berger said. “I think he’s nominated them. ...We disagree with the governor’s characterization of the May deadline. We don’t think it applies to this. The fact that he has named these as the Cabinet appointees and sworn them in, and presumably is having checks sent to them for their service is a nomination pursuant to the law.”

Cooper, the order states, “has not demonstrated that any of those eight appointees will be unable to continue serving in their current capacities,” noting that the Senate had not adopted “a simple resolution that specifically disapproves of any one of these eight persons appointed.”

If such an action happened, the judges stated, Cooper could return to them and ask for a block on the process, arguing that he had suffered the “irreparable harm” they say he failed to show last week.

Last week, the Senate had a hearing scheduled for former Rep. Larry Hall, named to lead the Department of Military and Veterans Affairs, at a meeting of the Military and Veterans Affairs Committee. But Hall did not attend the meeting nor respond to a questionnaire from the legislators.

Cooper’s challenge of the new Cabinet approval process is just one of several in a continuing tug-of-war between him and the Republican leaders at the helm of the General Assembly.

In addition to questioning the constitutionality of the Cabinet confirmation process, Cooper has challenged a part of the special session law that called for the merger of the five-member elections board and the state Ethics Commission, which administers ethics laws governing lobbyists, elected officials and government employees.

Previously, the governor had the power to appoint all five members to the state elections board – three from his party and two from the other major political party based on recommendations from that party.

Under the law, the governor would appoint four members and legislative leaders would appoint the other four, with the board split evenly between Democrats and Republicans.

The state Supreme Court issued an order on Monday that blocked that merger while the lawsuit awaits resolution.

This story was originally published February 14, 2017 at 12:27 PM with the headline "NC judges reject Cooper’s request to block cabinet confirmation process."