NC Senate gets to sign off on who Cooper’s 10 Cabinet members are, judges say

The state Senate gets a say in who Gov. Roy Cooper appoints to his Cabinet, according to a state Court of Appeals ruling issued on Tuesday.

A three judge panel upheld a ruling earlier this year by three Superior Court judges who have presided over a series of legal questions posed by Cooper and the state lawmakers engaged in a power struggle since the November elections a year ago.

At issue in this part of the struggle is whether state lawmakers overstepped their authority in a December 2016 emergency legislative session when they adopted a law making the governor’s Cabinet subject to Senate confirmation. The law came after Cooper, a Democrat, defeated former Gov. Pat McCrory, a Republican.

Cooper argued that requiring Senate confirmation of Cabinet members violated the separation of powers clause in the state Constitution.

But three Superior Court judges ruled in March that the state Constitution “does not prohibit a law establishing senatorial advice and consent over the appointments of the governor to the heads of principal state departments.”

The judges — two Democrats and a Republican — also said Cooper had not shown in court that he had been unable to execute the duties of his office because of the process.

The Senate did not reject any of Cooper’s appointments.

The three state Court of Appeals judges who reviewed the case — Rick Elmore, Donna Stroud and John Tyson — made the same findings.

“If separation of powers does not prohibit or constrain the Senate from confirming officers created by the Constitution, separation of powers does not otherwise prohibit ‘advice and consent’ being applied to gubernatorial appointees over agencies the General Assembly created, and which agencies can be amended or repealed by statute,” the judges unanimously ruled.

Cooper told the Council of State, which is the lieutenant governor, state attorney general, secretary of state and seven others elected to statewide offices, that he planned to appeal the decision of the three Republican appeals court judges. The state Supreme Court currently has 4 Democratic and three Republican judges.

“This case will ultimately be decided by the State Supreme Court,” Cooper said. “With the makeup of this three-judge panel we fully expected this result. They essentially kicked it upstairs to the Supreme Court. We believe that these arguments are sound and that these laws will end up being declared unconstitutional by the state Supreme Court.”

Phil Berger, the Rockingham County Republican at the helm of the state Senate, and House speaker Tim Moore, a Republican from Cleveland County, urged Cooper not to appeal.

“As the court noted, ‘a constitution cannot violate itself,’ and ‘a legislature that has the authority to create executive agencies also has the authority to require legislative advice and consent,’ “ Berger and Moore said in a joint statement after the ruling. “It is in the people’s interest for their elected representatives to conduct a fair, constitutional and transparent review of the governor’s cabinet secretaries. Gov. Cooper has no legal grounds to continue his pursuit of unchecked power and should quit wasting taxpayer money on divisive, baseless and self-serving lawsuits.”

This story was originally published November 7, 2017 at 9:53 AM with the headline "NC Senate gets to sign off on who Cooper’s 10 Cabinet members are, judges say."