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Judges reject injunction in Cooper v Berger appointments fight
Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
A three-judge panel has denied Gov. Roy Cooper's request for an injunction blocking recent actions from the state Environmental Management Commission. The panel made that unanimous decision Friday after a nearly three-hour hearing in a lawsuit pitting Cooper against Republican legislative leaders.
The decision also dissolved a temporary restraining order against the EMC that had remained in effect for a month.
The fight focuses on changes lawmakers made to appointments for multiple state boards and commissions. Both Cooper and GOP legislators have asked the panel to decide the case in their favor without a trial. A decision on the overall lawsuit remains at least a week away.
Cooper argues that a state law removing some of his appointment power violates the state constitution's separation of powers. Jim Phillips, Cooper's private attorney, labeled the changes "shocking" and "breathtaking."
"The legislature doesn't get to enact a law and then enforce it," Phillips said during the hearing at the Wake County courthouse in Raleigh.
While the legal battle pits a Democratic governor against Republican lawmakers, "This isn't a political case," Phillips argued. It's about protecting the powers of Cooper - and future governors - against legislative encroachment.
Phillips defended the separation of powers. "It's quite frankly part of the genius that has allowed us to remain free."
Representing state House and Senate leaders, attorney Matthew Tilley challenged Cooper's argument that the governor must maintain control over the outcomes of state board votes.
The boards are "not mere alter egos of the governor," Tilley said. If Cooper maintained control over the boards' decisions, "there would be no need for boards and commissions. There would be no need for independent minds."
Board appointments represent a "method of checking" the governor's power, Tilley added, "ensuring that all power does not accumulate in one individual."
Superior Court Judges John Dunlow, Paul Holcombe, and Dawn Layton asked lawyers on both sides to submit proposed orders by next Friday on summary judgment in the case. At some later point, the panel will issue a final decision in the lawsuit.
Of immediate interest was a portion of the dispute involving the EMC and a lawsuit that group filed against the state Rules Review Commission. A Wake County judge issued a temporary restraining order on Jan. 11 blocking the environmental group from dropping the suit. Cooper had challenged the EMC's action as part of his larger fight with GOP lawmakers.
Friday's decision means that the EMC can move forward with dropping the suit. An attorney representing the commission assured judges that the outcome of the intergovernmental suit would have no impact on state regulation of 1,4-dioxane. That's the chemical that prompted the disagreement between the two state boards.
On Nov. 1, the same three-judge panel granted Cooper an injunction against parts of Senate Bill 512. That bill, enacted into law last year over Cooper's veto, changed the way members are appointed to various state government boards and commissions.
The Nov. 1 court order blocked proposed changes to the state's Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the EMC and Coastal Resources Commission.
Cooper went back to court in January to challenge the EMC's lawsuit decision. After winning an initial court victory before a single Wake County judge on Jan. 11, the case eventually returned to a three-judge panel.
Legislative leaders filed paperwork in November asking the Superior Court panel to dismiss Cooper's lawsuit.
The court should "dismiss Plaintiffs claims (a) due to lack of subject matter jurisdiction and (b) on the grounds that the Complaint fails to state claim upon which relief may be granted," according to lawmakers' motion.
Cooper's "claims present nonjusticiable political questions," and he "lacks standing" to challenge appointment changes "that will not take effect until after his term as Governor has ended."
The Nov.1 injunction followed a hearing in Raleigh before the three-judge panel.
"Each of these boards is housed in an executive branch agency that is controlled by the governor," Phillips argued. "Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, They issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina."
"The General Assembly's restructuring of these boards is unconstitutional," Phillips added.
"This is our democracy that we're talking about," Phillips said. "This is about the checks and balances that keep our branches of government in their lanes."
"It is the General Assembly's job to set the policy of the state, to organize state government, and to place in that organization of government checks and mechanisms that ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people," Tilley responded.
Tilley rejected Cooper's claim that previous court battles between the executive and legislative branches clearly favored the governor.
"There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions," he said. "They require a case-by-case analysis."
Dunlow and Holcombe are Republicans. Layton is a Democrat. Dunlow's judicial district covers Granville County, while Holcombe's district covers Johnston County. Layton's district covers Anson, Richmond, and Scotland counties.
Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targeted 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 SB 512. A 72-44 vote in the state House 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 the 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 originally asked for 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.
Changes to the wildlife and residential code groups are scheduled to take effect in 2025.
Phillips accused state lawmakers of approving laws that fly in the face of state Supreme Court precedents from 1982, 2016, and 2018.
"The General Assembly knows that these statutes are unconstitutional," Phillips argued Wednesday. "Speaker Moore has said so - said as much. 'We think those cases were wrongly decided, and we want to give it another shot.'"
"It is the governor alone, not the General Assembly, not the Medical Society, not the Council of State, who is given the authority and the duty to ensure that the laws are faithfully executed."
Phillips and Tilley offered contrasting views of the separation of powers.
"The General Assembly, and not the executive, is what is typically understood to be the primary policymaking branch of government," Tilley said. "One way that it makes policy is through structure of boards and commissions."
"To the extent that the governor has the ability to set executive policy, it is within the confines and the boundaries set by the General Assembly."
Go Back
A three-judge panel has denied Gov. Roy Cooper's request for an injunction blocking recent actions from the state Environmental Management Commission. The panel made that unanimous decision Friday after a nearly three-hour hearing in a lawsuit pitting Cooper against Republican legislative leaders.
The decision also dissolved a temporary restraining order against the EMC that had remained in effect for a month.
The fight focuses on changes lawmakers made to appointments for multiple state boards and commissions. Both Cooper and GOP legislators have asked the panel to decide the case in their favor without a trial. A decision on the overall lawsuit remains at least a week away.
Cooper argues that a state law removing some of his appointment power violates the state constitution's separation of powers. Jim Phillips, Cooper's private attorney, labeled the changes "shocking" and "breathtaking."
"The legislature doesn't get to enact a law and then enforce it," Phillips said during the hearing at the Wake County courthouse in Raleigh.
While the legal battle pits a Democratic governor against Republican lawmakers, "This isn't a political case," Phillips argued. It's about protecting the powers of Cooper - and future governors - against legislative encroachment.
Phillips defended the separation of powers. "It's quite frankly part of the genius that has allowed us to remain free."
Representing state House and Senate leaders, attorney Matthew Tilley challenged Cooper's argument that the governor must maintain control over the outcomes of state board votes.
The boards are "not mere alter egos of the governor," Tilley said. If Cooper maintained control over the boards' decisions, "there would be no need for boards and commissions. There would be no need for independent minds."
Board appointments represent a "method of checking" the governor's power, Tilley added, "ensuring that all power does not accumulate in one individual."
Superior Court Judges John Dunlow, Paul Holcombe, and Dawn Layton asked lawyers on both sides to submit proposed orders by next Friday on summary judgment in the case. At some later point, the panel will issue a final decision in the lawsuit.
Of immediate interest was a portion of the dispute involving the EMC and a lawsuit that group filed against the state Rules Review Commission. A Wake County judge issued a temporary restraining order on Jan. 11 blocking the environmental group from dropping the suit. Cooper had challenged the EMC's action as part of his larger fight with GOP lawmakers.
Friday's decision means that the EMC can move forward with dropping the suit. An attorney representing the commission assured judges that the outcome of the intergovernmental suit would have no impact on state regulation of 1,4-dioxane. That's the chemical that prompted the disagreement between the two state boards.
On Nov. 1, the same three-judge panel granted Cooper an injunction against parts of Senate Bill 512. That bill, enacted into law last year over Cooper's veto, changed the way members are appointed to various state government boards and commissions.
The Nov. 1 court order blocked proposed changes to the state's Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the EMC and Coastal Resources Commission.
Cooper went back to court in January to challenge the EMC's lawsuit decision. After winning an initial court victory before a single Wake County judge on Jan. 11, the case eventually returned to a three-judge panel.
Legislative leaders filed paperwork in November asking the Superior Court panel to dismiss Cooper's lawsuit.
The court should "dismiss Plaintiffs claims (a) due to lack of subject matter jurisdiction and (b) on the grounds that the Complaint fails to state claim upon which relief may be granted," according to lawmakers' motion.
Cooper's "claims present nonjusticiable political questions," and he "lacks standing" to challenge appointment changes "that will not take effect until after his term as Governor has ended."
The Nov.1 injunction followed a hearing in Raleigh before the three-judge panel.
"Each of these boards is housed in an executive branch agency that is controlled by the governor," Phillips argued. "Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, They issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina."
"The General Assembly's restructuring of these boards is unconstitutional," Phillips added.
"This is our democracy that we're talking about," Phillips said. "This is about the checks and balances that keep our branches of government in their lanes."
"It is the General Assembly's job to set the policy of the state, to organize state government, and to place in that organization of government checks and mechanisms that ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people," Tilley responded.
Tilley rejected Cooper's claim that previous court battles between the executive and legislative branches clearly favored the governor.
"There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions," he said. "They require a case-by-case analysis."
Dunlow and Holcombe are Republicans. Layton is a Democrat. Dunlow's judicial district covers Granville County, while Holcombe's district covers Johnston County. Layton's district covers Anson, Richmond, and Scotland counties.
Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targeted 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 SB 512. A 72-44 vote in the state House 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 the 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 originally asked for 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.
Changes to the wildlife and residential code groups are scheduled to take effect in 2025.
Phillips accused state lawmakers of approving laws that fly in the face of state Supreme Court precedents from 1982, 2016, and 2018.
"The General Assembly knows that these statutes are unconstitutional," Phillips argued Wednesday. "Speaker Moore has said so - said as much. 'We think those cases were wrongly decided, and we want to give it another shot.'"
"It is the governor alone, not the General Assembly, not the Medical Society, not the Council of State, who is given the authority and the duty to ensure that the laws are faithfully executed."
Phillips and Tilley offered contrasting views of the separation of powers.
"The General Assembly, and not the executive, is what is typically understood to be the primary policymaking branch of government," Tilley said. "One way that it makes policy is through structure of boards and commissions."
"To the extent that the governor has the ability to set executive policy, it is within the confines and the boundaries set by the General Assembly."
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