Three-judge panel to address Cooper v. Berger appointments lawsuit Nov. 1 | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Superior Court judges from Granville, Johnston, and Richmond counties will convene Nov. 1 in Raleigh for the first hearing in Gov. Roy Cooper's lawsuit against legislation removing some of his appointment powers.

    State court records indicate Judges John Dunlow, Paul Holcombe, and Dawn Layton will serve as thbe three-judge panel overseeing the case, titled Cooper v. Berger. Dunlow and Holcombe are Republicans. Layton is a Democrat. Dunlow serves as resident Superior Court judge in Granville County. Holcombe's judicial district covers Johnston County. Layton's district covers Anson, Richmond, and Scotland counties.

    State Supreme Court Chief Justice Paul Newby, a Republican, appoints three-judge panels to consider lawsuits involving a facial challenge to a state law.

    Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targets state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Moore, as leaders of the General Assembly.

    The suit reached the court slightly more than three hours after the legislature approved the challenged law, Senate Bill 512. A 72-44 vote in the state House at 1:11 p.m. completed the override of Cooper's veto of the measure.

    SB 512 changed the appointment structure for the state Economic Investment Committee, Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, North Carolina Railroad Board of Directors, UNC Health Care Board of Directors, Utilities Commission, UNC Board of Governors, and UNC Chapel Hill and NC State University boards of trustees.


    Cooper objected to changes taking away his appointment powers in that law, along with a provision in House Bill 488 that reorganized the State Building Council and created a Residential Code Council.

    "This law is a blatantly unconstitutional legislative power grab," Cooper said in a news release announcing the lawsuit. "Over the years, the North Carolina Supreme Court has repeatedly held in bipartisan decisions that the legislature cannot seize executive power like this no matter what political parties control which offices. The efforts of Republican legislators to destroy the checks and balances in our constitution are bad for people and bad for our democracy."

    Cooper seeks an injunction blocking portions of the two challenged laws dealing with the Economic Investment Committee, the Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, and Residential Code Council.

    "In 2016 and again in 2018, the Supreme Court of North Carolina reaffirmed the separation of powers as a foundational principle of our state government," Cooper's lawyers wrote. "In so doing, the Court held that, in order to fulfill the Governor's constitutional duties and conform with separation-of-powers principles, the Governor must have sufficient control over administrative bodies that have final executive authority, such as the authority to enforce laws and promulgate rules and regulations, to ensure the laws are faithfully executed."

    "Disregarding these constitutional principles and ignoring the clear mandates of the State's judicial branch, the North Carolina General Assembly takes aim at these established precedents and once again seeks to significantly interfere with the Governor's executive powers and to take much of that power for itself," the governor's complaint continued.

    State law requires three-judge panels to address lawsuits that present a facial constitutional challenge to a statute. That means the complaint argues that the law cannot stand under any circumstances. In contrast, a single trial judge can address suits that challenge the constitutionality of a law only as it applies to a particular set of facts.

    Senior Resident Superior Court Judge Paul Ridgeway of Wake County issued an Oct. 11 order transferring the case from a single trial court judge to a three-judge panel.

    "Plaintiff's Complaint raises six (6) facial challenges to the validity of acts of the General Assembly," Ridgeway wrote in Wednesday's order. "There are no other pending issues in this case which can be addressed at this time without resolving the facial challenges.


    "It is therefore ORDERED that the portions of this action challenging such acts are transferred to a three-judge panel of the Superior Court of Wake County, to be appointed by the Chief Justice of the Supreme Court of North Carolina," Ridgeway concluded.

    The new state budget gave Newby more flexibility in determining the judges who will serve on the panel reviewing Cooper's case. Prior to the new budget, state law dictated that three-judge panels would comprise the Wake County senior resident Superior Court judge and two other judges from eastern and western North Carolina. Those restrictions no longer apply.