Judges Uphold Senate Confirmations, Reject Elections Board Changes and Reducing Gov's Picks | Eastern North Carolina Now

    Publisher's note: The author of this post is Rick Henderson, who is editor-in-chief for the Carolina Journal, John Hood Publisher.

    The separation-of-powers battle between Democratic Gov. Roy Cooper and the Republican-led General Assembly won't end any time soon.

    A three-judge panel of Superior Court judges ruled Friday that portions of two laws passed during a December special session of the legislature that reorganized aspects of state government were unconstitutional, while a provision allowing the Senate to confirm Cabinet-level officials was fine.

    A spokeswoman for Senate leader Phil Berger, R-Rockingham, said General Assembly leaders have not decided if they would appeal the ruling or enact new legislation. A spokeswoman for Cooper hinted that the court battles weren't over.

    The panel comprised Superior Court judges Todd Burke and Jesse Caldwell, both Democrats, and Jeffery Foster, a Republican. They were picked by Supreme Court Chief Justice Mark Martin.

    The judges ruled unanimously that a provision of Senate Bill 4 combining the State Board of Elections and the State Ethics Commission into a single body violated the constitutional separation-of-powers provision. The panel said the elections board's duties were primarily executive in nature and that the provision "reserve[s] too much control in the legislature."

    On the other two matters, the judges split. Caldwell and Foster ruled that a provision of House Bill 17 letting the Senate to confirm the governor's Cabinet picks was constitutional under Article III, Section 5. It states, "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."

    Burke dissented.


From left, Superior Court Judges Todd Burke, Jesse Caldwell III, and Jeffrey Foster hear arguments from lawyers representing Gov. Roy Cooper and the General Assembly in a lawsuit challenging the legislature's power to force confirmation hearings on Cabinet officers. (CJ photo by John Trump)

    On the final issue - whether the legislature could reduce the number of political appointees a governor could name from 1,500 to 425 - the judges again split, but this time in a different configuration. Caldwell and Burke ruled the provision a violation of separation of powers. By reducing the number of political appointees, they said, "the General Assembly has effectively appointed hundreds of employees in the heart of the executive branch."

    Foster dissented.

    Shelley Carver, a spokeswoman for Berger, released a statement soon after the decision was published.

    "It is encouraging the court recognized the plain language in our state's constitution providing for a transparent confirmation process for unelected cabinet secretaries who control multi-billion dollar budgets and make decisions affecting millions of everyday North Carolinians," the statement said.

    "However, it is disappointing that two judges awarded Gov. Cooper - who has made several ethically questionable decisions recently - total control of the ethics oversight of elected officials, instead of upholding a bipartisan board that North Carolinians can trust to settle ethics decisions and election outcomes fairly."

    Carver added, "A decision on whether to seek additional remedies through the court system or the legislative process will be made following further review of the court's order."

    Noelle Talley, Cooper's press secretary, suggested the litigation was not over. "We're pleased the trial court ruled two of these three laws unconstitutional, and we believe strongly that the Supreme Court ultimately will agree with us on all three," she said in a statement.