Partial victory for NC lawmakers in lawsuit over state board appointment power

Republican state lawmakers have been trying to give themselves more executive branch power for a decade, starting under Republican Gov. Pat McCrory and continuing under Democratic Gov. Roy Cooper. Republicans say new laws give state boards more balance. Cooper calls the law unconstitutional.

Posted 3:12 p.m. Feb 16 — Updated 9:15 p.m. Feb 16

Will Doran

, WRAL state government reporter

North Carolina legislative leaders won a partial victory Friday in a lawsuit challenging a new state law that gives the legislature more power to appoint members to key state boards and commissions.

Democratic Gov. Roy Cooper's is suing Republican lawmakers, arguing that limiting his authority to make such appointments amounts to an unconstitutional power grab — and is another effort in a decade-long attempt by Republicans to siphon power from the executive branch.

Late last year, judges hearing the case issued a partial ruling in favor of Cooper, blocking the legislature's attempts to take over boards related to transportation, economic development and public health.

On Friday, judges rejected Cooper's request to regain control over the Environmental Management Commission, a key rulemaking body for environmental issues with members that are now mostly aligned with the legislature rather than with Cooper.

But the judges declined to make a decision on the biggest question: whether either side has such a strong argument that they should win now, without needing to go to trial. Cooper and the legislature have both made those requests; on Friday the judges asked for additional written arguments so that they could study more and issue a ruling at some later date.

The legislature's efforts to give itself more power began in 2014 under Gov. Pat McCrory, a Republican — a power struggle over fracking and coal ash, two environmental issues prominent at the time — and have continued for the past seven years under Cooper, a Democrat.

Many, but not all, of the legislature's previous attempts have been ruled unconstitutional.

Spate of bills the latest volleys in longtime power struggle between NC legislature and governor

Republican lawmakers say the laws being challenged in the Friday hearing were needed to bring more accountability, transparency and political balance to the boards and commissions.

Several new laws passed in 2023 are similar to laws already ruled unconstitutional in recent years — although state GOP leaders are hoping that now that their party also controls the state Supreme Court, they will have a better chance at succeeding this time.

The laws being debated in court Friday are Senate Bill 512 and House Bill 488, which strip the governor's ability to appoint dozens of members of state boards and commissions that deal with issues ranging from transportation planning to environmental regulation, wildlife, public health, economic development and more.

Jim Phillips, a lawyer for Cooper, argued Friday that the state constitution says the three branches of government must stay distinct and separate. The new changes violate that principle, he told judges, by taking executive branch duties and authority away from the governor and handing that power to the legislature instead.

"The General Assembly's restructuring of these boards and commissions is unconstitutional," Phillips said.

Matthew Tilley, a lawyer for GOP legislative leaders, disagreed. He told judges that the changes are needed for "ensuring that all power does not accumulate in one individual.”

Cooper sues NC lawmakers, claiming 'blatantly unconstitutional legislative power grab'

The lawsuit already had one hearing last year, in which the three-judge panel hearing the case — two Republicans and one Democrat — ruled partially in Cooper's favor and blocked some of the changes as likely unconstitutional. But the judges declined to block all of the legislature's proposed changes, leading to Friday's hearing.

"It is the governor alone" who should keep the authority over those boards and commissions, Phillips said Friday.

In October, the judges agreed with Cooper that the changes to the State Board of Transportation, the Commission for Public Health and the Economic Investment Commission, which approves multimillion-dollar state grants for businesses that promise to create jobs, were likely unconstitutional. They blocked the legislature's proposed changes from going into place.

But on Friday, the judges ruled against Cooper and allowed the changes to a fourth board, the Environmental Management Commission, to move forward as the legislature wanted.

The laws being challenged also shake up control of the Coastal Resources Commission, Wildlife Resources Commission, Residential Code Council and more.

Constitutional lawsuits in North Carolina are heard by three judges at trial rather than just one. The panels are chosen from all over the state by Supreme Court Chief Justice Paul Newby, a Republican. The judges in this case are Dawn Layton, a Democrat, and Republicans John Dunlow and Paul Holcombe.

Phillips asked the judges to remember the case isn't just about the current balance of political power in North Carolina. Cooper, who is barred from running for a third straight term, is in his final year in office. But the decision in this case could affect state government for generations into the future.

"Other governors, and other General Assemblies, will feel the effect," Phillips said.

Elections power grab accusation also in court

Another new law, Senate Bill 749, would take away the governor's control of the State Board of Elections and give it to the legislature. It's being challenged in a separate lawsuit and has already been blocked in court as likely unconstitutional.

Similar efforts to change who controls the elections board have also ruled unconstitutional in the last decade. And when lawmakers proposed changing the state constitution to allow the changes to go through, voters shot down that proposal at the ballot box in 2018 by a wide margin. That rejection came after every living former governor — Republicans and Democrats alike — publicly campaigned against the constitutional amendment, as did every living former state Supreme Court chief justice.

When GOP leaders reintroduced the idea last year despite the previous rejections by voters and the state courts, they defended the proposal by saying they thought it would improve people's confidence in elections.

It was one of multiple changes to elections laws that state lawmakers passed, over Cooper's veto, in the lead to this year's elections for president, governor and more.