The new year in state politics looks much like the last five, with the N.C. legislature under threat of lawsuits.
Democratic Gov.-elect Roy Cooper threatened a lawsuit over limits the Republican-controlled General Assembly voted to place on his power to make political appointments.
“Once more, the courts will have to clean up the mess the legislature made, but it won’t stop us from moving North Carolina forward,” Cooper said in a statement Friday after his Republican predecessor, Gov. Pat McCrory, signed one law and the legislature sent another bill to McCrory’s desk.
State Board of Education Chairman Bill Cobey, a Republican, said the board could sue over the measure awaiting McCrory’s signature, which would transfer some of the board’s power to the superintendent of public instruction as Republican Mark Johnson prepares to take over that position.
Under the same bill, Cooper wouldn’t be able to fill as many state agency jobs as McCrory had. Cooper will have 425, while McCrory had 1,500. Cooper’s Cabinet appointments also would be subject to approval or rejection by the Republican state Senate. He wouldn’t be able to appoint trustees to the UNC system schools or members of the Charter School Advisory Board.
Under the law already signed by McCrory, Cooper won’t be able to appoint the Industrial Commission chairman, and his party would not be able to control boards of elections.
McCrory won a lawsuit against the legislature earlier this year over a separation-of-powers question, on the claim that the legislature created commissions that encroached on executive-branch functions.
“Whenever you have a conflict between the legislature and a governor over who fills jobs, who gets to do what, and you have a change in how things are done, you run into issues of separation of powers and the relationship between the two branches,” said Michael Crowell, a Chapel Hill lawyer who has handled elections and constitutional cases.
But Cooper could have a hard time making the case that the legislature has improperly intruded on his turf, constitutional experts said.
Former state Supreme Court Justice Burley Mitchell said Cooper would have trouble claiming that reducing his appointments is unconstitutional, because those were written into state law, not the constitution.
As for the Senate’s role in appointments, it’s described in the state constitution. “The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for,” it says.
Mitchell said that while he had not studied the issue, he knew of no area of the constitution that would prevent the legislature from requiring Senate confirmation.
The state constitution does not set up three co-equal branches of government, Mitchell said.
“The legislature has always been predominant,” he said, while specific powers were given to the courts and the governor. “Absent something conflicting with that, it’s pretty much up to the legislature what they want to do.”
There are “no easy or obvious answers” to the question whether Cooper could make a case based on violations of the U.S. Constitution, said Michael Gerhardt, a constitutional law professor at UNC Law School.
He could argue that laws violate the Constitution’s Republican Guarantee Clause, which requires states to have a republican form of government, Gerhardt said. Or, Cooper could argue that the new restrictions on his power violate the Equal Protection Clause because he has fewer appointments than McCrory. Alternatively, he could argue that the votes of the people who voted for him are being cast aside or diminished.
Republican legislators can argue that their changes were sound, Gerhardt said, because the legislature can create offices.
“I think while there can be arguments made on behalf of the legislation, a lot of people can look at this and say, ‘This is just old-fashioned political payback,’ ” he said.
Gregory Wallace, a constitutional law professor at Campbell University, sees no winning arguments for Cooper under the federal Constitution.
The Republican Guarantee Clause has never been enforced, Wallace said, and he doesn’t see any claim under the Equal Protection Clause because there’s no “suspect class,” a group that can say it’s been discriminated against.
“I don’t see any issue under the U.S. Constitution,” Wallace said.
The question of how the State Board of Education is going to work with the new superintendent of public instruction may also be headed to court.
The division of powers between the education board and the superintendent goes back to the 1970s, said Edwin Speas, a former chief deputy attorney general and general counsel to former Democratic Gov. Bev Perdue, McCrory’s immediate predecessor.
Outgoing State Superintendent June Atkinson won a lawsuit against Perdue over the powers of Atkinson’s office. Atkinson argued that her duties were given improperly to a CEO and state board chairman whom Perdue selected.
The constitution says the State Board “shall supervise and administer the free public school system,” and the superintendent is the board’s “secretary and chief administrative officer.”
“There is a question as to how you divide those powers,” Speas said.
The new division of labor devised by the legislature has the State Board of Education on alert.
Cobey said the board could end up challenging the legislation. A meeting is set for Tuesday morning to talk about it.
“The preliminary look at the legislation that impacts the State Board is that is it is unconstitutional,” Cobey said.
As they worked on the bill, the legislature kept some of the education board’s powers. For one, it removed a provision that would have had the superintendent hire the board’s employees.
The board would make any decision on a legal challenge once it sees the law in its final form and its lawyers have a chance to analyze it, Cobey said.
Opponents of the laws may target in court the special session in which lawmakers passed the two bills. Some Democrats have contended the special session is unconstitutional because of the timing of the Republicans who convened it. Republicans have disputed Democrats’ timeline of events.
What passed last week
Senate Bill 4: It will equally divide election boards between the two major political parties, ending control by the governor’s party. It also makes N.C. Supreme Court elections partisan and allows the Court of Appeals to hear appeals of its three-judge panel decisions as a 15-judge panel.
House Bill 17: Makes Gov.-elect Roy Cooper’s Cabinet appointments subject to approval by the state Senate and cuts his ability to appoint members to UNC schools’ boards of trustees. It also cuts the number of employees who serve at the governor’s pleasure from 1,500 to 425, reversing an expansion that legislators approved for outgoing Republican Gov. Pat McCrory, who was defeated by Cooper in November.
Appointments: The legislature voted to appoint state budget director Andrew Heath and Charlotte attorney Adam Conrad to business court judge positions. And it voted to appoint Yolanda Stith, whose husband is McCrory’s chief of staff, to the Industrial Commission.