State Politics

Judges say Cooper — not lawmakers — can control certain boards

Governor Roy Cooper, left, Phil Berger, president pro tempore of the Senate, center, and Speaker of the House Tim Moore on Tuesday, May 1, 2018.
Governor Roy Cooper, left, Phil Berger, president pro tempore of the Senate, center, and Speaker of the House Tim Moore on Tuesday, May 1, 2018. cseward@newsobserver.com

A three-judge panel has expanded Gov. Roy Cooper’s authority to make certain appointments, the latest step in a separation-of-powers struggle that began when then-Gov. Pat McCrory sued the General Assembly in 2016.

Cooper sued in May 2017 challenging the constitutionality of the legislature appointing the majority of members to certain boards and commissions. In some cases the legislature gave itself that authority. In other cases, Cooper argued, the legislature should have changed the membership of some existing boards to reflect rulings by the state Supreme Court.

The three state Superior Court judges in a ruling filed Friday noted that the Supreme Court in the lawsuit brought by McCrory said the General Assembly had overstepped its authority.

“The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it within itself,” the Supreme Court ruled.

Friday’s order says the Supreme Court laid out a test for who can make the appointments.

In this case, they ruled, because the General Assembly appoints a majority of members on each of the boards named in Cooper’s lawsuit, because the governor’s authority to remove them is constrained, and because the boards have the final say in how to execute laws, the statutes governing their appointments violates the separation of powers requirement “beyond any reasonable doubt.”

The boards affected are the Clean Water Management Trust Fund Board of Trustees, the Child Care Commission, the State Building Commission, the N.C. Parks and Recreation Authority, and the Rural Infrastructure Authority.

Senate Leader Phil Berger and House Speaker Tim Moore, who are defendants in the lawsuit, also unsuccessfully asked the judges to delay any ruling in the case until after the Nov. 6 election, when proposed constitutional amendments will be voted on. They argued that the outcome “would have an obvious impact” on Cooper’s lawsuit, according to the ruling.

The three judges denied that request and scolded the legislative leaders. The judge said legislators had had more than two years to address the Supreme Court’s constitutional concerns in the McCrory case and one year since Cooper sued in order to correct the appointments process.

Representatives of Berger and Moore did not comment on Friday’s rulings.

Cooper’s spokesman Ford Porter reacted by email.

“It should not take court action to get legislative Republicans to comply with the Constitution but this seems to be the only way to get them to follow the law,” Porter said. “Legislators’ pattern of illegal power-grabs makes it even more troubling that they are now pushing misleading Constitutional amendments to erode the separation of powers.”

The ruling comes after an Aug. 10 hearing before judges Henry W. Hight Jr., Jay D. Hockenbury and Nathaniel J. Poovey, who issued the order Friday.

Craig Jarvis: 919-829-4576, @CraigJ_NandO
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