The leadership battle between North Carolina’s executive and legislative branches came to a head Tuesday in what one judge described as a historic separation of powers case.
Gov. Roy Cooper sued legislative leaders , Senate President Pro Tem Phil Berger and House Speaker Tim Moore, in response to new statutes enacted during a special session in December before he took office that reduce his powers.
Attorneys for both Cooper and the legislators have been in and out of court for months  on issues related to the lawsuit, and the three-judge panel that will decide the case likely won’t be the last word, as either side can appeal if the ruling is not in their favor.
It’s not known when the panel will make a decision.
Cooper is challenging three laws. The first two deal with the dissolution of the State Board of Elections and State Ethics Commission, and the merging of their powers and duties  into one new board; the second addresses the Senate’s advice and consent process ; and the third involves gubernatorial staffing.
Cooper’s constitutional arguments center on the separation of powers clause — his attorneys said during the trial that the legislative branch, in reducing specific powers, encroached on the executive branch, thereby preventing the governor from faithfully executing the laws.
“Separation of powers is a fundamental tenet of our republic and our state government,” said Jim Phillips, a Greensboro attorney who represents Cooper. “Our Supreme Court has referred to separation of powers as the rock upon which rests the fabric of our government and the cornerstone of our state and federal governments.”
Attorneys for Berger and Moore argued that the General Assembly was exercising its constitutional powers in creating the new laws, and that the Constitution does not guarantee equal power between the government branches.
They said that with the exception of faithfully upholding the state laws, Cooper’s powers are given to him statutorily by the legislative body, which also has the power to take them away.
“This is a case about powerful people maneuvering for political advantage that masquerades as a separation of powers case,” said Noah Huffstetler III, a Raleigh attorney representing Berger and Moore.
The three-judge panel — Judges Jesse Caldwell III, a Democrat who presides in Gaston County; Todd Burke, a Democrat who presides in Forsyth County; and Jeffery Foster, a Republican who presides in Pitt County — asked both parties numerous questions throughout the trial.
Caldwell in particular seemed focused on the legislature’s intent when passing the new laws, asking separately each of the three attorneys representing the lawmakers about the issue.
“If the executive branch of government has in recent years been gradually extended, or maybe aggressively extended its control and the government maybe has gotten too big for its britches, then why wasn’t all this legislation passed beforehand; why wasn’t it passed the year before or the year before that?,” the judge asked.
Before Huffstetler could answer, Caldwell prodded further, asking why the legislature couldn’t wait one month for the regular session before passing complex legislation.
“Why was there a need to have a special-call session after the current governor conceded his victory and before the new governor of a different party took office?” he asked.
Huffstetler said he didn’t believe the questions were relevant and that legislators’ testimony in court was inadmissible — he didn’t know what their motive was in passing the laws.
Conflict of interests?
The first argument yesterday centered on the State Board of Elections and State Ethics Commission merger.
Before Senate Bill 4  was passed in December, the Elections Board consisted of five members appointed by the governor, with no more than three members from one political party.
The new board would consist of four Republicans and four Democrats. Cooper would be responsible for appointing four of the members, two Republicans and two Democrats, and legislative leaders would appoint the other four members.
The new members would begin July 1 with the current State Ethics Commission members holding the seats until then.
Phillips said the new law doesn’t give the governor power to remove half the board or fill vacancies — essential functions of the executive branch.
Additionally, it takes six members to have a quorum, and if the governor only has four appointees, he can’t ensure that the state’s election laws are faithfully executed, Phillips said.
Huffstetler argued that the case was before the court too soon. He said a decision on the constitutionality of the law could not be made “based on conjecture and speculation about what might happen.” If a deadlock occurred in the future or the new board were to not function properly, then Cooper could bring the issue to the courts.
Huffstetler added that the burden on Cooper in the lawsuit was to prove beyond a reasonable doubt that the law was unconstitutional, and that there just isn’t enough evidence to make that determination.
Caldwell asked the attorney a lot of questions about the potential for conflicts of interest with the Elections Board and Ethics Commission working together.
Previously, the agencies had been filing reports with an independent commission to review the reports.
Huffstetler said there already is a lot of overlap in what the agencies do and that the two working together would be more efficient. In the event that there is a conflict of interest, he said, recusal would be the answer.
Caldwell pointed out that the entire board couldn’t recuse itself and asked if, as the law is written, the board would have to police itself.
Huffstetler responded yes, “to a certain extent,” but it wasn’t any different than a lot of other state governmental agencies.
Foster switched gears and asked about how legislators weren’t removing a core function of the executive branch if the governors before Cooper always had control of the State Board of Elections through their appointments.
Huffstetler said the agency is an independent, quasi-judicial agency and that no one can claim to be in control.
Phillips later argued that before the new law, Elections Board members reported to the governor and had to get the governor’s approval for reorganization and to adopt rules.
“The notion that this new state board or anything with the existing state board is out there, is not responsible to someone, is quite frankly very disconcerting,” he said.
Advice and consent
Attorneys also argued about the advice and consent statute that legislators passed dictating that the Senate hold confirmation for Cooper’s cabinet appointees and approve or deny them to serve.
Phillips contended that the new law gives the Senate veto powers over Cooper’s picks to head state departments.
Cooper must be able to choose individuals who reflect his priorities and policies and they should be his “alter egos,” he added.
Phillips argued that the Senate, armed with veto power, would share the power to appoint crucial cabinet positions, which goes further than the Constitution allows and encroaches on the executive branch’s power.
“The advice and consent amendment will not allow the governor to choose whom he wants,” he said. “The Senate becomes a part of the appointment process, and that violates separation of powers.”
Martin Warf, another Raleigh attorney representing Berger and Moore, argued that the separation of powers clause is a limitation on what each branch of government can do but that it does not grant powers.
“It doesn’t preempt some power in and of itself,” he said.
He said advice and consent only violates the Constitution if it prevents Cooper from upholding state laws — which, he said, it does not.
Burke said that, historically, governors have been given unfettered appointment authority and he asked how taking it away wouldn’t be an infringement on the executive branch.
The final argument revolved around the legislature having reduced the number of state employees  who serve at the pleasure of the governor and protecting former Gov. Pat McCrory appointees by giving them “career status,” which makes it more difficult to terminate them.
When McCrory took office, the General Assembly expanded exempt positions he oversaw from 330 to 1,500. When he conceded the election last year, the General Assembly cut those positions  to 425 and granted “career status” to anyone who’d worked for a year.
Eric David, another attorney representing Cooper, said that more than 124 employees who are loyal to McCrory are now embedded in the governor’s administration and could undermine his work and policies.
He added that the choice to appoint individuals within Cooper’s administration was taken away when the legislature created the law. He said the governor didn’t hire the employees referenced and can’t fire them, which makes it hard to supervise them.
Candace Friel, an attorney representing Berger and Moore, acknowledged that it might be a little more difficult to fire career-status state employees but not impossible. She said that state employees without career-status also had protections that could make it difficult to terminate them.
Friel also argued that not all the employees being discussed would be able to have influence on Cooper’s policy. She said Cooper did not provide any information about what the positions are that he is challenging.
“Are these positions truly policymaking positions?” she asked.
She said none of the employees were picked by the General Assembly and that the power to designate career-status was ultimately given to the governor — McCrory at the time.
At the conclusion of the trial, the judges adjourned the proceeding without giving any indication as to when a decision could be expected. NC Policy Watch will continue to monitor the case and report as events warrant.