Judges rule for GOP in latest power struggle with governor
By GARY D. ROBERTSON
Apr. 09, 2018
RALEIGH, N.C. (AP) — North Carolina state judges favored Republican legislative leaders Monday in the latest batch of rulings over laws that Democratic Gov. Roy Cooper has sued over by complaining that they unconstitutionally eroded his authority.
A majority on a three-judge panel dismissed portions of a lawsuit from Cooper by affirming one law that will reduce the number of Court of Appeals judges from 15 to 12 as retirements and other vacancies arise. By the same 2-1 ruling, the panel also affirmed a law that told the governor he must mention increasing amounts of money for taxpayer-funded scholarships for private school tuition in future budget proposals.
And separately Monday, a Superior Court judge ruled lawmakers had the power to decide how more than $100 million in federal grants and the compensation Volkswagen paid for its emissions scandal were used.
All of the rulings stem from Cooper's wide-ranging lawsuit challenging several laws approved by the GOP-dominated General Assembly beginning in December 2016, weeks before he was sworn in. The legal results through this power struggle have been mixed. All of Monday's rulings could be appealed.
Cooper's office didn't respond to emails seeking comment late Monday. Senate leader Phil Berger and House Speaker Tim Moore said in a release they were pleased with the ruling. The entire General Assembly, they said, has the responsibility to appropriate funds and not "one single politician, whose job is to execute the law rather than attempt to make his own."
In one of Monday's rulings, Superior Court Judges Nathaniel Poovey and Jay Hockenbury ruled the legislature had the ability to reduce the number of judges on the intermediate-level Court of Appeals through attrition. The law also means the governor would lose the ability to appoint replacements had the judgeships not been eliminated.
Cooper's attorneys argued the state Constitution mandates eight-year terms for the Court of Appeals, even if the incumbent steps down. But Hockenbury and Poovey cited a constitutional provisions expressly giving the General Assembly the power to determine the "structure, organization and composition" of the court as long as there are a minimum of five judgeships.
"If this grant of power does not include the ability to create or abolish seats, subject only to the limitation of keeping at least five seats, we are at a loss to understand what it could mean," Poovey and Hockenbury wrote.
The same judges also upheld the 2017 law requiring Cooper, who recommends a budget annually to the legislature, to insert into a portion of those documents a $10 million annual increase in taxpayer-funded scholarships for K-12 students to attend private or religious schools. Lawmakers approved previously a law directing the increase over the next decade.
Cooper opposes the scholarships and argued requiring the money in his plan usurped his constitutional powers to "prepare and recommend to the General Assembly a comprehensive budget." Hockenbury and Poovey wrote the law only covered a ministerial task and didn't prevent him from recommending against the $10 million increase in the upcoming year's budget.
The third judge, Superior Court Judge Henry Hight, disagreed with his colleagues. He wrote the Court of Appeals changes violated the state Constitution because it reduces the length of three judicial terms and that Cooper has "the unfettered right" to offer a budget that reflects his policy views and priorities.
While the legislature is free to enact "private school vouchers, it may not require the governor to recommend such an expenditure," Hight wrote.
Hight was the only judge hearing the portion of Cooper's lawsuit involving federal grants and the Volkswagen funds.
The governor's lawyers argued the General Assembly is wrongly seeking to shift cash designated by federal law and congressional policy to specific areas when Cooper is the custodian of those funds. But Hight wrote the funds at issue go into the state treasury, and no money can be withdrawn without an appropriation, which the General Assembly carries out.