Judges deliver split decision in fight between Cooper, lawmakers

March 18, 2017 GMT

A three-judge panel on Friday delivered a mixed decision in the power struggle between Democratic Gov. Roy Cooper and Republican legislative leaders. Each side took home a victory Friday, as well as a stinging defeat.

The General Assembly passed two laws during a special session in mid-December that require Senate confirmation of Cooper’s cabinet secretaries, slashed the number of state positions to which the governor can appoint supporters, and overhauled the structure of North Carolina’s state and county elections boards.

Cooper filed suit, alleging that lawmakers had violated the separation of powers in trying to assume control over whom he could appoint in his administration and how elections were carried out.

“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,” said Cooper spokeswoman Noelle Talley.


Shelly Carver, a spokeswoman for Senate President Pro Tem Phil Berger said lawmakers had not decided whether to appeal regarding the two points on which they lost.

The panel agreed with Cooper that state law that called for combining the State Board of Elections and the State Ethics Commission was unconstitutional. The judges also ruled that a provision cutting the number of at-will policy-making and managerial positions in Cooper’s administration from 1,500 to 425 should be blocked.

“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 said.

In the same ruling, the judges upheld the Senate’s right to confirm the governor’s cabinet secretaries, saying Cooper hasn’t demonstrated his administration will be hurt by the law.

Cooper, the court wrote, “has made no evidentiary showing that the Advice and Consent provision will result in a violation of the separation of powers provision of the North Carolina Constitution.”

The three-judge panel had earlier refused to block confirmation hearings, and Senate committees have been subpoenaing Cooper’s appointees to ensure they show up for hearings. So far, three of the 10 members of the cabinet have been approved, and more confirmation hearings are scheduled for next week.

Carver said that part of the ruling was encouraging.

“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 multibillion-dollar budgets and make decisions affecting millions of everyday North Carolinians,” she said.

Judges Jesse Caldwell of Gaston County, L. Todd Burke of Forsyth County and Jeffery Foster of Pitt County were unanimous on the Board of Elections provision, but split on the other two rulings.