North Carolina Court Blocks GOP's Move to Limit Democratic Governor's Power

by | February 8, 2017

By Anne Blythe

A three-judge panel has halted hearings planned by the North Carolina state Senate for review of Gov. Roy Cooper's Cabinet members, issuing a temporary restraining order that brought swift criticism from legislative leaders.

"In a gross misreading of the Constitution and a blatant overstep of their Constitutional authority, three Superior Court judges attempted to dictate to the legislature when it could or could not hold committee meetings and what it could or could not consider in those meetings," Phil Berger, president pro tempore of the state Senate, and Tim Moore, speaker of the state House of Representatives, said in a joint statement issued before the order was made public. "This unprecedented move would be like the legislature telling a judge what jurors to pick to decide a case."

A hearing had been scheduled for 11 a.m. Wednesday to weigh Cooper's selection of former state Rep. Larry D. Hall, a Democrat from Durham, to head the Department of Military and Veterans Affairs.

"Judges are not legislators and if these three men want to make laws, they should hang up their robes and run for a legislative seat," Berger and Moore wrote. Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order."

The restraint from the court comes as a power struggle escalates between the Republican-controlled legislature and new Democratic governor – raising questions about separation of powers and checks and balances.

Cooper issued a statement after the ruling was released.

"We need to put these partisan confirmation games behind us and get on with repealing HB2, raising teacher pay and getting better jobs for North Carolinians," Cooper said. "The court is absolutely correct in their decision and should not be intimidated by threats from legislative leaders."

At issue in this particular case is whether state lawmakers overstepped their authority in a December emergency legislative session by adopting a law making the governor's Cabinet subject to Senate confirmation.

The legislators did not have such a process when Gov. Pat McCrory, a Republican, was at the helm of the state's executive branch.

In an emergency hearing via telephone conference with judges Jesse Caldwell of Gaston County, Todd Burke of Forsyth County and Jeff Foster of Pitt County, an attorney for Cooper asked the judicial branch to step in to the fray with a restraining order.

Jim Phillips, a Greensboro attorney representing Cooper, requested a halt to the Senate proceedings until Friday, when the judges are set to consider whether to put a longer-term hold on the law while the lawsuit winds its way through court proceedings.

Phillips told the judges the governor thought the Senate's plans were a violation of the state Constitution.

Martin Warf, an attorney representing Berger and Moore, made an argument on Tuesday similar to the statement issued later by the heads of the General Assembly chambers.

He suggested that the judges would be interfering with the business of the legislative branch of government by halting the hearing.

"The advise-and-consent power is readily available to this General Assembly," Warf said.

Noah Huffstetler, a Raleigh attorney also representing Berger and Moore, described the judges' potential move as a "constitutionally dangerous step."

Foster took issue with the arguments made by attorneys for the lawmakers, saying he did not see how blocking a confirmation hearing would keep the Senate from doing other business.

"To say that the court's weighing in and taking this unprecedented step and stopping the legislature from doing something _ it's not really ingenuous, is it?" Foster asked.

A full trial on the case is expected to be held in March.

(c)2017 The News & Observer (Raleigh, N.C.)