Battle to overturn 2016 limitations on governor’s power moves to N.C. Supreme Court

A group of plaintiffs led by advocacy group Common Cause N.C. has appealed to the N.C. Supreme Court to overturn laws passed by Republicans in the General Assembly in 2016 that limited the governor’s powers before Roy Cooper took office.

The bills, Senate Bill 4 and House Bill 17, were passed in December 2016 during a special legislative session the month before Cooper took office. The first altered the ability of the governor to make appointments, primarily to the state board of elections and the State Ethics Commission.

The second bill implemented an approval process that hadn't previously existed. It required that appointees for cabinet positions take part in confirmation hearings before the Senate, and no longer allowed the governor to appoint trustees to UNC system schools — which includes UNC.

By the end, the number of positions that worked directly for the governor was cut from 1,500 to 300, meaning those appointed to these positions by former Republican Gov. Pat McCrory would remain.

Mitch Kokai, senior political analyst at the conservative John Locke Foundation, said after Cooper beat McCrory, the Republicans who ran the General Assembly recognized it might be harder for them to pass legislation.

"It would be very hard to argue that the General Assembly wasn't trying to put handcuffs on Roy Cooper before he came into office," he said.

Common Cause N.C., an advocacy group based in North Carolina, is one of the lead plaintiffs on an April 2017 lawsuit to overturn this legislation. The lawsuit alleges that the special session in which these bills were passed was unconstitutional because it violated the right of the public to instruct representatives, which is a broad right given in Article 1 Section 12 of the N.C. Constitution.

The plaintiffs argued the insufficient notice of the General Assembly about the special session and what would be voted on violated the state constitution. Both an N.C. superior court and the N.C. Court of Appeals ruled against them.

Cooper managed to have some aspects of the legislation overturned in court, such as the changes to the state board of elections.

Bob Phillips, executive director of Common Cause N.C., said the organization felt it was important to continue to appeal the lawsuit.

“The optics of what the General Assembly did in December 2016 is bad. It’s bad democracy, it’s bad government, and this where you have a legislature with little to no notice calling themselves back into session without providing what we feel should be proper notification,” Phillips said.

Phillips said the General Assembly violated North Carolinian's expectations of transparency from their elected officials. He said this prevented debate over whether the laws to limit the governor’s power should be passed on their merits.

“I will say this was not done under the cover of darkness, but it was rammed through in a special session that no one really knew about, much less knew was coming,” Phillips said.

Rick Su, professor at the UNC School of Law, said he thinks the argument Common Cause is making is a long shot to win in court. He said it would require a landmark ruling by the Supreme Court about what the “right to instruct representatives” means.

“What they want to argue — which will be the landmark case — is to take these words that’s usually just been kind of understood as sort of broad principles, and turned it into a very discrete procedural requirement,” Su said.

N.C. Rep. Verla Insko (D-Orange) said she was supportive of the continued efforts to overturn the legislation.

“How can an unconstitutionally convened General Assembly pass laws?"  Insko said. "It’s almost like every law they passed is unconstitutional.”

The office of Senate President Pro Tempore Phil Berger (R-Rockingham) said the lawsuit is an attempt to circumvent legislation passed by the General Assembly.

“Partisan organizations like Common Cause have been turning to the courts for years trying to find like-minded judges to circumvent the legislature,” Pat Ryan, a spokesperson for Berger, said in an email. “Judges are becoming super-legislators, and judicial races are becoming the most consequential elections in this country because of it.”

Kokai said the unanimous rulings of the lower courts present a challenge for the plaintiffs.

“One of the things that’s most interesting about this appeal to me is the argument that the court should step in, because the laws that were passed were so bad that they shouldn’t be allowed to stand,” Kokai said. “That’s not a constitutional argument, that’s basically asking the Supreme Court to play political referee and say we don’t like what the General Assembly did in the session.”

Su also said there may be other reasons for the appeal, noting it is currently an election year.

“I’m not entirely certain that Common Cause is doing this appeal to win," he said. "It could be that what they’re primarily interested in — which is not bad either — is to use this litigation to keep this issue, the procedures that were put in place, placed on the public mind."

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