Justice's Dissent Helps Explains Stakes in N.C. Political Tug of War | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.

    It would be easy to dismiss the recurring political battles between Democratic Gov. Roy Cooper and the Republican-led General Assembly as pure partisan posturing.

    Easy. And wrong.

    A dissent from a case decided earlier this year in the N.C. Supreme Court offers a clue about why leaders of the executive and legislative branches have pushed their feud to the foreground of Tar Heel politics.

    Sure, Democrats and Republicans are gearing up for another election in November. Much of what they're saying and doing now is designed to win support for their respective "teams" this fall. (Why else would the governor launch a publicity tour touting a statewide school bond more than a week after lawmakers left Raleigh - shutting down any possibility of placing that bond on the November ballot?)

    But regardless of partisan calculations, much of what divides the governor and his legislative foes stems from a fundamental disagreement. Cooper and state House and Senate leaders disagree about their respective roles in running state government. These differences could divide legislative leaders from either major party from a governor of either party.

    That's why two former GOP governors, Jim Martin and Pat McCrory, have joined Cooper and former Democratic governors Jim Hunt, Mike Easley, and Beverly Perdue in vocal opposition to a state constitutional amendment slated for the November ballot. It would add a new subsection to the state's Declaration of Rights.

    "The legislative powers of the State government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law," the new constitutional provision would read. "The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission."

    Governors characterize the proposed constitutional language as a "power grab." Legislative leaders counter that they simply want voters to clarify what the constitution already says. Only in recent years, lawmakers argue, have courts chipped away at clear constitutional language.

    In that respect, lawmakers echo the concerns N.C. Supreme Court Justice Paul Newby described in a January dissent. In the case of Cooper v. Berger, the court split, 4-3. The court's four Democratic justices sided with the Democratic governor in a dispute over appointments to a new bipartisan board overseeing state elections and ethics issues. The three Republican justices sided with lawmakers.

    In one of two dissents issued in the case, Newby devoted 24 pages to explaining why the Supreme Court never should have stepped into the dispute between Cooper and lawmakers in the first place.

    "This case presents the question of whether the General Assembly has the authority to create an independent, bipartisan board to administer the laws of elections, ethics, lobbying, and campaign finance," Newby wrote. "Because the state constitution expressly commits this specific power to the legislative branch, this Court lacks the authority to intervene; the issue presents a nonjusticiable political question."

    "In exercising judicial power under these circumstances, this Court violates the very separation-of-powers principle it claims to protect," he continued. "The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor - the authority to implement personal policy preferences."

    The result, in Newby's estimation? The Supreme Court "ignores the carefully crafted, express constitutional roles of the political branches and boldly inserts the judiciary into the political, legislative process."

    Newby suggested that Cooper v. Berger created two "significant" problems in North Carolina's body of law, "forecasting perilous consequences for years to come." First, the court's majority jettisoned the "political question doctrine. " Since 1962, courts had relied on a U.S. Supreme Court standard for distinguishing cases with legitimate legal issues from those dealing with fundamentally political disputes. Newby accuses colleagues of tossing out that 56-year-old doctrine.

    Second, Cooper v. Berger "inserts the judiciary into every separation-of-powers dispute between the political branches," Newby wrote. In other words: Get ready for more court cases challenging boundary lines between the executive and legislative branches.

    Newby's dissent accuses the state Supreme Court's majority of placing its thumb on the scale to support the governor's position. "Most concerning, the Court's decision judicially amends our constitution to grant the Governor a constitutional power to enact personal policy preferences, even elevating those preferences over the duly enacted laws when they conflict."

    The January case points to a clear pattern for future disputes between the executive and legislative branches. "Under this holding, the Governor no longer must seek to influence policy by participating in the constitutionally specified procedures of executive orders and the veto, both of which the General Assembly can override," Newby concluded. "The Governor prevails simply by complaining to the judicial branch that any legislation interferes with the implementation of personal policy preferences."

    It's unclear whether legislative leaders read Newby's Cooper v. Berger dissent. But their actions this year appear consistent with the goal of counteracting "perilous consequences" Newby predicted.

    Voters will decide whether the state's constitution should do more to help fend off constant legal battles among the branches of government. They'll have their say in November.