Carolina Journal
The North Carolina Supreme Court has decided not to take up two cases pitting the state’s Democratic governor against Republican legislative leaders. One case involves a fight over changes to the State Board of Elections. The other involves a dispute over appointments to seven other state boards and commissions.
State legislative leaders filed petitions in May asking the state’s highest court to take the two cases titled Cooper v. Berger. Lawyers representing the governor filed paperwork urging the state Supreme Court to reject lawmakers’ request. On Friday the state Supreme Court issued orders denying both petitions.
Both cases will remain with the state Court of Appeals.
The court split, 4-2, on the separate issue of whether Justice Phil Berger Jr. should take part in the two cases. Berger’s Republican colleagues supported his participation. The Democratic justices dissented. Berger did not vote.
Democratic Gov. Roy Cooper’s lawyers had argued against Berger’s participation in either case. Berger’s father leads the state Senate.
“Based on the facts before us, we do not agree that the Code of Judicial Conduct bars Justice Berger’s participation in this case,” according to a court order signed by Justice Trey Allen. “Senator Berger is a party to this litigation solely in his official capacity as President Pro Tempore, not in any personal capacity. State law requires the President Pro Tempore to be joined as a defendant in lawsuits that dispute the constitutionality of statutes. In such litigation, state law regards the President Pro Tempore as a stand-infor the General Assembly.”
“[T]oday, the majority allows Justice Berger to participate in yet another case wherehis father is a named party with a direct interest in the outcome,” Justice Allison Riggs wrote in dissent.
“Here, there is no question that Senator Berger is a person ‘within the third degree of relationship’ to his son, Justice Berger,” Riggs added. “The Code of Judicial Conduct does not exempt a judge from recusal even when their family member is a party in their official capacity. In fact, the plain language points the opposite way. By requiring recusal when a judge’s family member is ‘an officer, director, or trustee of a party,’ the Code of Judicial Conduct establishes clear recusal standards when the judge’s family member is party to a proceeding, even in their official capacity.”
An earlier court filing spelled out Cooper’s objection to the state Supreme Court taking the elections board case.
“Legislative Defendants seek the extraordinary step of bypass review because they know the North Carolina Constitution and existing precedent make Session Law 2023-139 (‘Senate Bill 749’) unconstitutional,” the governor’s lawyers wrote. “Through their Petition, Legislative Defendants invite this Court to ignore the public interest and the clear results of a recent public vote about amending our Constitution, jettison stare decisis, and reinterpret our Constitution and the political question doctrine so that separation of powers is no longer an enforceable constitutional limitation. This Court should decline that dangerous invitation.”
In the separate legal dispute over appointments to seven state boards and commissions, Cooper’s lawyers urged the high court to consider “the State’s public policy to ensure uniform treatment of appeals.”
A change in state law in 2016 eliminated a provision giving the state Supreme Court direct review of court judgments striking down acts of the General Assembly for constitutional or federal law violations, the court filing noted.
“Consistent with the General Assembly’s expressed policy preferences for the handling of constitutional appeals and the public interest in the evenhanded treatment of all litigants, this Court should reject bypass review and reaffirm that separation of powers disputes, like other appeals, generally should proceed first in the Court of Appeals,” the governor’s lawyers wrote.
The state’s high court would have had to bypass the Court of Appeals to take the two Cooper v. Berger cases. Republicans outnumber Democrats, 5-2, on the state Supreme Court. Republicans outnumber Democrats, 11-4, on the Appeals Court. That court hears cases in three-judge panels.
In one of the current Cooper v. Berger disputes, a unanimous three-judge Superior Court panel ruled in Cooper’s favor and against the General Assembly’s plan to remake appointments to the State Board of Elections. In the second case, a different unanimous three-judge panel upheld five of seven state boards and commissions Cooper had targeted because of appointments changes.
“Governor Cooper filed the suit below arguing that under no set of circumstances would it be constitutional to create a bipartisan, even-numbered board to manage the election laws of North Carolina,” wrote lawyers representing Senate Leader Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, in the first case. “Under the Governor’s view of executive power, any discretion in executing those laws must carry forward only his views and priorities.”
“As this Court has done with previous cases presenting similar issues, it should allow this bypass petition to review the foundational constitutional questions presented by this appeal,” wrote lawyers representing lawmakers in the second case. “The answers to those questions impact not only the structure of the seven public boards and commissions at issue in this case, but also the General Assembly’s authority to organize (and reorganize) agencies of State government.”
State lawmakers overrode Cooper’s vetoes in 2023 to approve bills changing appointments to boards and commissions. “[T]he bills sought to diffuse power over the boards and commissions at issue by adopting a range of structures that split appointments between the Governor, members of the Council of State, certain outside professional groups with relevant expertise, and the House and Senate,” according to the state Supreme Court petition.
“Governor Cooper, however, sued to stop Senate Bill 512 and House Bill 488, claiming they ‘fail to respect fundamental principles of representative government’ and, if implemented, would lead to ‘tyranny,’” lawmakers lawyers’ wrote.
“And just a week later, the Governor filed yet another lawsuit, challenging legislative efforts to establish a bipartisan Board of Elections. Why? Because, according to the Governor, separation of powers requires that he — and he alone — must have ‘enough control’ over every board and commission to ensure it ‘implement[s] executive policy’ in a manner ‘consistent with his views and priorities,’” the Supreme Court petition continued.
“As a result, he contends the Constitution requires that he have the power to appoint a majority of every board and commission the General Assembly creates,” lawmakers’ lawyers wrote. “But no provision of the Constitution gives the Governor power to appoint statutory officials.”
Cooper is relying on two precedent cases, McCrory v. Berger from 2016 and an earlier Cooper v. Berger ruling from 2018, “decisions which drew sharp dissents, and which cannot be squared with constitutional text, history, or precedent,” according to the legislative leaders’ lawyers.
Lawmakers contrasted the Superior Court panels’ responses to the two current Cooper v. Berger disputes.
“The panel in this case issued summary judgment enjoining Senate Bill 512’s changes with respect to two boards and commissions, but denying the Governors’ claims as to the others,” the Supreme Court petition in the appointments case explained. “That ruling stands in contrast to the one issued just a week later by the separate panel hearing the Governor’s challenge to the Board of Elections.”
“The panel’s decision in that case failed [to] find any basis to distinguish McCrory and Cooper I, and accordingly doubled down on the notion that that every board and commission — including those charged with overseeing elections — must be beholden to the Governor,” lawmakers’ lawyers argued. “Both cases thus bring into sharp focus whether the test established by McCrory and Cooper I is consistent with separation of powers enshrined in our Constitution, or, on the other hand, seeks to insert the judiciary into a nonjusticiable political question for which there are no judicially manageable standards.”
The state Supreme Court’s review of both cases “is necessary to consider whether McCrory and Cooper I should be overruled, provide needed guidance concerning the fundamental constitutional questions raised by the Governor’s claims, and resolve any lingering uncertainty regarding the proper composition of the boards and commissions at issue,” according to the petition.
In the elections board case, Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble issued an order in March striking down elections board changes incorporated last year in Senate Bill 749. Wilson is a Democrat. Hamilton and Womble are Republicans.
Legislative leaders appealed that ruling.
In the broader appointments case, Superior Court Judges John Dunlow, Dawn Layton, and Paul Holcombe issued an order upholding changes to the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The panel struck down changes to the state’s Economic Investment Committee and Board of Transportation. Dunlow and Holcombe are Republicans. Layton is a Democrat.
In addition to legislative leaders, Cooper appealed the three-judge panel’s ruling in the appointments case.
Comentarios