Cooper objects to courtís decision not to consider blocking appointments bill | Eastern North Carolina Now

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

    Gov. Roy Cooper has lodged an objection in Wake County Superior Court in his challenge to new state laws limiting his appointment powers. The court refused to hold a hearing on Cooper's request for a temporary restraining order.

    Instead a three-judge panel will hold a Nov. 1 hearing on Cooper's pursuit of an injunction.

    "The Governor filed his Complaint in this action within hours of the General Assembly's enactment-over the Governor's veto-of an obviously unconstitutional bill," Cooper's lawyers wrote Thursday. "Given the immediate, significant disruption wrought by the bill's enactment, the Governor also immediately sought a temporary restraining order blocking the bill's implementation."

    "Eight days after the Complaint and TRO Motion were filed, the court gave notice that it would not hear the TRO Motion and would instead hear the Governor's Motion for Preliminary Injunction on November 1, more than three weeks after the case was filed," the governor's lawyers added.

    "The court's failure to hear the TRO Motion at all deprives the Governor of the constitutional right which belongs to any potential litigant to access the judicial system and have his case heard in a timely manner and in accordance with the requirements of due process," according to the objection. "Moreover, failure to hear the TRO Motion compounds uncertainty for impacted boards and commissions that continue to meet and the public servants who volunteer their time to help the state by serving on those boards."


    "Finally, the chaos created by Session Law 2023-136 will only increase if the General Assembly or others purport to make appointments under the unconstitutional statute before the Governor's motion is heard," Cooper's lawyers warned. "For that reason, ... the Governor objects to the deprivation of his constitutional rights."

    Superior Court judges from Granville, Johnston, and Richmond counties will convene Nov. 1 in Raleigh for the first hearing in the case.

    Judges John Dunlow, Paul Holcombe, and Dawn Layton will serve as the 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.

    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.

    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.
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