Three judge panel temporarily blocks part of law altering board appointments

Published November 9, 2023

By A. P. Dillon

Gov. Roy Cooper  saw mixed success in his lawsuit, Cooper  v. Bergr , challenging two laws changing certain board and commission appointments. 

A three-judge panel heard oral arguments on Nov. 1 and gave the governor a partial win by temporarily blocking appointment changes made by the legislature in Senate  Bill 512 for the State Board of Transportation, the Economic Investment Commission, and the Commission for Public Health.  

However, the panel left in place the changes to appointments in place for the Environmental Management Commission or the Coastal Resources Commission and did not decide on the N.C. Wildlife Resources Commission and the State Building Council. 

The three Superior Court judges  in the case are John Dunlow and Paul Holcombe, who are both Republicans, and Dawn Layton, a Democrat. Cooper  appointed  Layton to the District 16A Superior Court seat in August 2019 to replace a retiring judge. 

During oral arguments, one of  Cooper’s attorneys claimed the legislature had gone too far. 

“They seek to make the law and enforce the law,” said  Cooper  attorney Jim Phillips, adding that those who wrote our state constitution had warned against such moves. 

“Each of these boards is housed in an executive branch agency that is controlled by the governor,” argued Phillips. “Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, they issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina.” 

According to Matthew Tilley, the attorney representing the Republican majority in the legislature, the case demands that judges carefully examine each of the boards implicated in the lawsuit individually. This is necessary, he explained, due to variations in the governor’s authority across the different boards and the distinct manners in which the legislature shaped each board. 

“There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions,” Tilley said, adding, “They require a case-by-case analysis.”

Tilley emphasized that it falls upon the legislature to oversee and restrict the governor’s powers. “The governor cannot unilaterally dictate policies,” he asserted during oral arguments. 

The lawsuit was filed just hours after the legislature overrode  Cooper’s veto of Senate Bill 512 on Oct. 10 and asserts that the changes to the boards and commissions appointment structure are a violation of the Separation of Powers and Faithful Execution Clauses of the North Carolina Constitution. 

Senate Bill 512 alters the appointment makeup for the state’s Economic Investment Committee, Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, North Carolina Railroad Board of Directors, UNC Health Care Board of Directors, Utilities Commission, UNC Board of Governors, and UNC Chapel Hill and NC State University boards of trustees. 

The governor’s lawsuit only challenged the appointment changes to six of the boards.

Aside from the Economic Investment Committee, which  was a new creation in the  law, the governor had unilaterally controlled the majority of the appointments to the other boards prior to the changes by the legislature.  

Two of the governor’s nine appointees to the 15-member Environmental Management Commission were given to the state’s commissioner of agriculture. 

Cooper previously appointed nine of the Commission for Public Health’s 13-member board. Under the new law, four of those positions would go to the legislature. The other four were and continue to be appointed by the North Carolina Medical Society. 

The  Commission for Public Health  became a public focal point during the pandemic for its ability to alter vaccination schedules for school children when North State Journal  uncovered  the commission had been pressured to require the COVID-19 shot for students 17 and older in K-12 public schools and who might enter a public post-secondary institution. The commission ultimately  dropped the idea  following North State Journal’s reporting. 

Additionally, North State Journal found that several of Cooper’s appointees were Democrats who had donated to his campaigns for governor and that one of those donors was a real estate developer with no apparent medical or public health experience. 

For the Board of Transportation, all 14 of the governor’s appointments would be made by the legislature. Also, the  board would select the chair and vice chair instead of the governor. 

The 13-member Coastal Resources Commission’s nine appointments by the governor dropped to six, with four of those appointments now being made by lawmakers and one being made by the state’s commissioner of insurance. 

The number of Wildlife Resources Commission members appointed by the General Assembly increased from eight to 10, but the governor’s appointments remained at 11. 

Cooper’s lawsuit also opposed part of House Bill 488, which rearranged the State Building Council and established the Residential Code Council.  

The lawsuit specifically objects to Sections 1.(a) and 1.(b) of that law. The first section created a 13-member Residential Code Council of which the governor would make seven appointments to the legislature’s six. The second section deals with the term length of the members.