Lawmakers best Cooper in court, appeal likely

Monday’s rulings mean that after filing four lawsuits against the General Assembly, of the ones already decided, Gov. Cooper has lost all but one.

Madeline Gray—
Gov. Roy Cooper speaks to the N.C. General Assembly during the State of the State speech on March 13, 2017. Source: NSJ file photo

Raleigh – On Monday, the Republican-led N.C. General Assembly prevailed in two separate cases in superior court stemming from a lawsuit brought by Democrat Governor Roy Cooper. As part of Cooper v. Berger, the court first rejected claims brought by Cooper that the General Assembly was usurping his executive power by expanding the Opportunity Scholarships program and streamlining the Court of Appeals from fifteen judges to twelve. Second, the court rejected Cooper’s claim that he should control Volkswagen mitigation funds, not the legislature.

The Opportunity Scholarships pilot program was established in 2013 as a vehicle to provide mid-to-low-income parents with a state-funded $4,200 annual scholarship to attend another school, including private, if their base school does not meet the needs of their child.  Championed by school choice advocates and N.C. Parents for Educational Freedom, the program was instituted in 2015 and met with immediate enthusiasm by many families, leading to a 1,500-student waitlist within the first year. In 2016-2017 the program provided scholarships for 6,200 students.

The increased demand led lawmakers in 2017 to expand the program in the budget by $10 million over ten years, outside of the money budgeted for public schools, potentially providing 36,000 scholarships by 2028-2029.  Cooper objected to the expansion, saying it was a voucher program that undermined spending on traditional public schools. Cooper filed a lawsuit saying that the General Assembly was forcing him to include future money for a program he didn’t support in his proposed budgets.

The Superior Court -Justice Jay Hockenbury (New Hanover), Justice Nathaniel Poovey (Catawba), and Justice Henry Hight (Vance) – heard the case in February and ruled 2-1 Monday that the state constitution protected the General Assembly’s action and Cooper retains his authority to recommend a budget.

“We cannot find beyond a reasonable doubt that Session Law 2017–57 disrupts the governor’s core executive power of preparing and recommending a comprehensive budget under Article III Section 5(3),” the court’s ruling on Monday read.

Lawmakers praised the decision calling Cooper’s lawsuits a “power grab.”

“Appropriating public funds is such an important responsibility that our constitution gives that authority to 170 of the people’s elected representatives – not to one single politician, whose job is to execute the law rather than attempt to make his own,” said Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland). “We are pleased the court stopped some of Gov. Cooper’s latest attempted power grabs and urge him to abandon these self-serving lawsuits.”

On a different issue in the same case, lawmakers were again favored by the court over the legislature’s decision last year to reduce the number of justices on the N.C. Court of Appeals from fifteen to twelve. In April 2017, Lawmakers overrode Cooper’s veto of the law which reduces the bench by attrition as the judges reach mandatory retirement age, even if they haven’t served out their eight-year term. Cooper was able to appoint a judge to the bench before the legislature could override the veto when Judge Douglas McCullough, a Republican, retired suddenly to open a seat.

Cooper tapped Judge John Arrowood in McCullough’s place before the veto was overridden. Arrowood lost a 2014 re-election bid to the Court of Appeals and his 2017 appointment shifted the bench to be more left-leaning.

Cooper’s lawyers argued that the legislature does not have authority to reduce terms of judges and was infringing on the executive authority to appoint new ones as judges on the bench retire. The court disagreed, pointing to the statutes that give power to the legislature over “structure, organization, and composition” of the Court of Appeals.

“We believe that Governor Cooper cannot argue that his Section 19 appointment power allows him to effectively demand that a seat not be abolished,” read the ruling. “As such, the Governor’s power to appoint individuals to seats on the Court of Appeals under Section 19 only applies to offices authorized by the General Assembly.”

Hight was the dissenting opinion saying that the state legislature was overstepping its authority on both issues.  However, Hight ruled against Cooper in the second separation of powers case in which Cooper wanted control over $87 million that the state will receive from Volkswagen stemming from a class-action suit over fraudulent emissions tests. The judge said that the money awarded to the state should go through the appropriations process.

“The budget process … is constitutionally mandated… There is no basis in the Constitution or North Carolina court precedent to deviate from these budget and appropriation processes,” Hight’s ruling read.

The office of Governor Cooper indicated in response to a request for comment that he plans to appeal the rulings.

“This was the first step in the judicial process. We remain confident in the merits of our claims and look forward to having them heard by appellate courts,” said Ford Porter, Press Secretary for Gov. Roy Cooper.