In a continuing power struggle with Republican lawmakers at the helm of the General Assembly, Gov. Roy Cooper on Friday filed another lawsuit in state court, accusing the legislative leaders of trying to strip him of power to appoint state Court of Appeals judges and N.C. Industrial Commission members.
The lawsuit, filed in Wake County Superior Court, is one of a series that Cooper, a Democrat, has filed since taking office in January and breaking up four-year Republican control of the legislative and executive branches of government.
The lawsuit names Phil Berger, leader of the state Senate, and Tim Moore, speaker of the state House.
Among the allegations are:
▪ That a law reducing the size of the state Court of Appeals from 15 members to 12 – adopted despite a veto by Cooper – changes the length of a judge’s term without a supporting state constitutional amendment. Cooper’s lawsuit contends that terms for appeals court judges are to be eight years, and the law that would eliminate three seats through attrition as judges retire mid-term would shorten the term. Republicans hold a 10-5 majority on the state appeals court. The law would prevent Cooper from having the power to appoint replacements for retiring judges.
▪ That legislators violated the state Constitution’s separation-of-powers clause by giving former Gov. Pat McCrory, a Republican, the power to make two key appointments to the state Industrial Commission on his way out of office. The commission is a quasi-judicial body that settles worker’s compensation questions and other differences between employers and employees, as well as handling tort claims against the state. Its members serve six-year terms. Not only did McCrory appoint Yolanda Stith, the wife of his chief of staff, to a one-time-only nine-year appointment, he also appointed Charlton Allen, a Republican, as chairman for a four-year term that would run through Cooper’s elected term.
▪ That the executive branch, and not the General Assembly, should have appointment power over several other boards and commissions including the Clean Water Management Trust Fund, the Child Care Commission, the State Building Commission, the NC Parks and Recreation Authority, the Rural Infrastructure Authority and the Private Protective Services Board.
Greensboro-based lawyer Jim Phillips, who has represented Cooper in several other lawsuits against the legislative leadership, cited a Supreme Court ruling that states “[t]he election of a particular candidate signifies public support for that candidate’s platform, policies, and ideology.”
In the lawsuit, Phillips contends that “just weeks after the voters chose Governor Cooper and his ‘platform, policies, and ideology’ to govern North Carolina for the next four years, the leadership of the North Carolina General Assembly moved to curtail, in significant ways, the executive powers that passed to the Governor on January 1, 2017, and to exercise much of that power on their own.”
Amy Auth, a spokeswoman for Berger, a Rockingham County Republican, criticized the governor for filing a third lawsuit against the lawmakers.
“In his State of the State Address, Gov. Roy Cooper said, ‘In Raleigh, partisan battles, power struggles and lawsuits might grab the headlines, but we have to work together where we can, to look beyond ourselves to see what’s right for the state, regardless of who’s in power’ — so we don’t understand why he feels suing three times in less than six months is a good way to accomplish that goal,” Auth said.
“This latest lawsuit will benefit no North Carolinian besides Roy Cooper himself, and we wish he would heed his own advice rather than filing endless lawsuits bankrolled by the taxpayers to elevate his own political power.”
The back-and-forth in court between Cooper and the lawmakers highlights an increasing power struggle between the branches of government that often land in the judicial branch for resolution.
Lawmakers changed the appointment process for the Industrial Commission shortly before Cooper’s inauguration, at the same time they required Senate confirmation for a governor’s Cabinet members, revamped the state elections board and ethics commission, and changed the status of McCrory’s managerial and policy-making employees. Judges ruled the election board revamp and employee status change violated the state Constitution.
After the court ruled against them, lawmakers attempted a new version of the elections-board change, and Cooper filed a new lawsuit that is set to be back in court next week.
Separately, lawmakers this year decreased the size of the appeals court and routed some of its work to the state Supreme Court.