Judicial panel issues mixed ruling in Cooper v. Berger case

Both the governor and legislature score wins and losses in decision, leaving possibility of further appeals

Madeline Gray—North State Journal
FILE PHOTO:Gov. Roy Cooper gives the State of the State address at the North Carolina House of Representatives on March 13.

RALEIGH — A North Carolina three-judge panel issued its ruling on the Cooper v. Berger case Friday evening, handing wins to the legislature on some issues and to the governor on others. The case, brought by Gov. Roy Cooper, stemmed from lawmakers passage of laws in December 2016 that codified the N.C. Senate’s role in confirming or rejecting gubernatorial cabinet appointments, reformed the state board of elections to combine it with the state ethics commission, and limited the number of special career status hires by the executive branch.On the issue of confirmations, the panel found that, “Our state constitution does not prohibit a law establishing senatorial advice and consent over the appointments of the governor to the heads of principal state departments.” In the decision, the panel said the implementation of advise and consent for these positions did not violate the separation of powers clause and that the plaintiffs failed to show its unconstitutionality in court.”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 multi-billion dollar budgets and make decisions affecting millions of everyday North Carolinians,” said Senate Leader Phil Berger (R-Rockingham).However, the panel was unanimous in its decision that the laws changing the structure of the state board of elections and ethics board were unconstitutional because it “blocked the governor from ensuring faithful execution of the laws.””The governor’s inability to appoint a controlling number of the members of the new state board means that the legislature retains control over that board and can prevent the governor from taking action,” reads the decision.Finally, considering the legislature’s changes to the number of agency positions exempt from the N.C. Human Resources Act, the court found the limitations on the governor significant enough to deem them unconstitutional. These positions, usually policy-making or managerial roles, are understood by the court to serve at the will of the governor and further his or her policy agenda.Citing a previous balance of powers case, McCrory v. Berger, the court concluded that by changing career status of state employees on the eve of Cooper assuming office the General Assembly had “effectively appointed hundreds of employees in the heart of the executive branch.”By giving career status to those formerly exempt McCrory employees, the decision continues, the law limited the governor’s ability to remove them and afforded the executive branch too little control over the views and priorities of those officers.”Because the exempt positions amendments prevent the governor from taking care that the laws are faithfully executed, the court concludes that they violate the separation of powers and that this decision is found to be unconstitutional,” reads the decision.Though short of a complete victory, Cooper’s office was encouraged by the ruling and hinted at appeals on those points that were not decided in the governor’s favor.”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’s deputy communications director, Noelle Talley.As of yet, appeals have not been filed, but indications on both sides are that they are not quite finished seeking more favorable resolution.