Judges temporarily block NC Senate confirmation hearings for Cooper nominee; Senate still holds meeting

A panel of judges has halted the state Senate’s planned review of Gov. Roy Cooper’s Cabinet appointments, issuing a temporary restraining order that brought swift criticism from legislative leaders.

The three judges’ ruling, issued Tuesday night, put the Cabinet confirmation process on hold until another court hearing scheduled for Friday. The ruling said that Cooper “has shown a likelihood of success on the merits of his challenge” and that proceeding with the outlined confirmation process could cause “immediate and irreparable harm.”

Cooper requested the restraining order after senators scheduled an 11 a.m. Wednesday hearing to weigh the governor’s selection of former state Rep. Larry D. Hall, a Democrat from Durham, to head the Department of Military and Veterans Affairs. Despite the judges’ ruling, the Senate Commerce and Insurance Committee tried to hold its hearing before adjourning the meeting because Hall was not there.

Legislative leaders issued a strong condemnation of the judges’ decision.

“In a gross misreading of the Constitution and a blatant overstep of their Constitutional authority, three Superior Court judges attempted to dictate to the legislature when it could or could not hold committee meetings and what it could or could not consider in those meetings,” Phil Berger, president pro tempore of the state Senate, and Tim Moore, speaker of the state House of Representatives, said in a joint statement issued before the order was made public. “This unprecedented move would be like the legislature telling a judge what jurors to pick to decide a case.”

The restraint from the court comes as a power struggle escalates between the Republican-controlled legislature and new Democratic governor – raising questions about separation of powers and checks and balances.

“Judges are not legislators and if these three men want to make laws, they should hang up their robes and run for a legislative seat,” Berger and Moore wrote. “Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.”

Cooper issued a statement after the ruling became public.

“We need to put these partisan confirmation games behind us and get on with repealing HB2, raising teacher pay and getting better jobs for North Carolinians,” Cooper said. “The court is absolutely correct in their decision and should not be intimidated by threats from legislative leaders.”

At issue in this case is whether state lawmakers overstepped their authority in a December emergency legislative session by adopting a law making the governor’s Cabinet subject to Senate confirmation.

The legislators did not have such a process when Gov. Pat McCrory, a Republican, was at the helm of the state’s executive branch.

Legislators argue that the state Constitution gives them authority to be involved in the process. The N.C. Constitution says, “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.”

Cooper cites a state Supreme Court ruling from last year in a court dispute between McCrory and Berger over executive branch authority. Cooper’s argument is that ruling makes it clear that the advice-and-consent provision only applies to “constitutional officers” — elected Council of State officials such as the secretary of state, treasurer and auditor — and not “statutory officers,” who are non-elected heads of the principal departments of the executive branch, including Cabinet secretaries. Voters elect members of the Council of State, but the governor fills vacancies.

The three-judge panel of Jesse Caldwell, Logan Todd Burke and Jeff Foster was assigned to the governor’s lawsuit because of the constitutional questions the suit raises, a process the Republican-controlled legislature created in 2014.

The same three judges upheld Cooper’s request to block a change in the partisan makeup of the state elections board while his lawsuit makes its way through the courts. That move was also part of the changes the legislature made in special session.

In an emergency hearing via telephone conference Tuesday with the panel, Jim Phillips, a Greensboro attorney representing Cooper, requested a halt to the Senate proceedings until Friday, when the judges are set to consider whether to put a longer-term hold on the law while the lawsuit winds its way through court proceedings.

Phillips told the judges the governor thought the Senate’s plans were a violation of the state Constitution.

Martin Warf, an attorney representing Berger and Moore, made an argument on Tuesday similar to the statement issued later by the heads of the General Assembly chambers.

He suggested that the judges would be interfering with the business of the legislative branch of government by halting the hearing.

“The advise-and-consent power is readily available to this General Assembly,” Warf said.

Noah Huffstetler, a Raleigh attorney also representing Berger and Moore, described the judges’ potential move as a “constitutionally dangerous step” but added that he would not advise his clients to ignore the judges’ order.

Foster took issue with the arguments made by attorneys for the lawmakers, saying he did not see how blocking a confirmation hearing would keep the Senate from doing other business.

“To say that the court’s weighing in and taking this unprecedented step and stopping the legislature from doing something — it’s not really ingenuous, is it?” Foster asked.

On Wednesday, the commerce committee scheduled to consider Hall’s nomination went ahead with its meeting but conducted no other business.

“I was waiting about 10 minutes to see if Mr. Hall might be caught in traffic,” said Sen. Wesley Meredith, a Fayetteville Republican who chairs the committee.

Meredith read from a prepared statement that equated the Senate’s new process to the federal process taking place in the nation’s capital to confirm President Donald Trump’s Cabinet members.

“The Committee is here today and ready to proceed. However, we are going to delay this meeting because the Acting Secretary is not present,” Meredith’s statement said. “But make no mistake: the General Assembly will meet to review the qualifications of Gov. Cooper’s cabinet nominees as allowed by the constitution, and we are going to get answers to questions regarding their qualifications, potential conflicts of interest and willingness to obey the law.”

Asked if Wednesday’s committee meeting defied the court order, Senate Rules Chairman Bill Rabon said, “I don’t think so.” He declined to explain his position further.

“We didn’t know what (Hall) was going to do or not do, and we were prepared – if he did show up – to proceed,” Rabon said. “We will see what comes out of the court proceeding on Friday and go from there.”

A full trial on the case is expected in March.

This story was originally published February 8, 2017 at 10:18 AM with the headline "Judges temporarily block NC Senate confirmation hearings for Cooper nominee; Senate still holds meeting."