NC judges: We’re not ‘telling the legislature it can’t do its business’

Several days after legislative leaders issued a public rebuke of a three-judge panel that ruled against them in their power struggle with the governor, the head of that judicial panel responded.

Judge Jesse Caldwell, a Gaston County Democrat, told Noah Huffstetler, an attorney for the state lawmakers, in open court on Friday that the panel’s order issued earlier this week did not bar the legislature from exercising its duties.

“In no way is this court ... telling the legislature it can’t do its business,” Caldwell said during a cordial exchange with Huffstetler.

Though the judge did not ask specifically about a news release issued by Senate leader Phil Berger and House Speaker Tim Moore, Caldwell and Jeff Foster, a Republican judge on the panel, asked about conclusions being drawn by legislators.

Berger and Moore, both Republicans and lawyers, issued a statement Tuesday about the panel’s decision to temporarily block the Senate’s planned review of Democratic Gov. Roy Cooper’s Cabinet appointments. “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,” Berger and Moore said.

“I don’t believe it’s been the intent of this court ... to ever attempt to limit the legislature,” Caldwell said.

“They can hold a hearing every day if they want to,” Caldwell added later in the hearing, while questioning Martin Warf, another attorney representing the lawmakers.

The legislators could even vote, if the judges issue an injunction further blocking the Cabinet approval proceedings.

“What we would be saying is your vote is null and void,” Caldwell said.

The three-judge panel went behind closed doors shortly after 1 p.m. to decide whether to block the Cabinet approval proceedings until a March trial to resolve the constitutional questions raised by each side. No ruling had been issued by early Friday evening.

The gubernatorial Cabinet approval process, adopted in December, makes Cooper’s key administrators subject to Senate confirmation.

Checks on tyranny?

The law is one of several being challenged by the governor as a power struggle escalates between the Democrat in the executive office and the Republicans at the helm of the two General Assembly chambers.

Cooper contends the law violates the state Constitution, which states the three branches of government – the legislature, governor’s office and judiciary – each have separate powers.

“The Constitution does not say the powers are equal,” Warf said in response to a question from one of the judges about whether the legislature had superior power to the other two branches. “The ability to make the laws is a pretty supreme ability.”

“Don’t we have in our constitution provisions that provide for checks and balances to prevent, as we learned in law school, the tyranny of the majority?” Caldwell asked.

“Yes,” Warf responded. “But to suggest that the power of the General Assembly could be tyrannical is not there because the General Assembly is checked by the people themselves.”

“But it’s checked by the courts, too.” Caldwell added.

Legislators have defended the law as one that adds transparency to the appointments the governor makes to key positions. They argue that the state Constitution allows them to advise and give consent on the Cabinet posts.

Caldwell asked the lawmakers’ attorneys if North Carolina had an “executive branch that’s out of control ... that needs to be reeled in,” why wasn’t such a law in place before Cooper defeated his predecessor, Republican Pat McCrory?

“I don’t think it would be fair to say this legislation is a reaction to the governor,” Huffstetler said. “I think it’s just a good, sound, public policy.”

Jim Phillips, the Greensboro attorney representing Cooper, countered, saying what the legislature proposed “has a chilling effect on the governor’s decision making.”

This story was originally published February 10, 2017 at 4:48 PM with the headline "NC judges: We’re not ‘telling the legislature it can’t do its business’."