A panel of three Superior Court judges heard arguments Friday about whether the composition of six boards and commissions violates the state constitution because Cooper lacks sufficient control over them, and whether they should be essentially shut down until the legislature retools them. The judges didn't immediately rule but asked for proposed orders from the sides by early next week.
State Supreme Court rulings since 2016 - one stemming from a Cooper lawsuit and another from a lawsuit by GOP predecessor Pat McCrory - have struck down as unconstitutional the composition of several boards created by the General Assembly. The majority opinions in each, when sewn together, help describe how and when a board impinges upon the governor's authority to faithfully execute laws.
Cooper attorney Eric David told the judges Friday it's "crystal clear" that the half-dozen boards and commissions fail that test, but the legislature has refused for over two years to fix them. In each case, David said, the legislature appoints a majority of the panel's members, the governor has little power to remove them and the panel's actions can't be overturned by the governor's administration.
"It's really an indisputable fact that these commissions do not comport with the constitution as it currently stands," David said. For example, he said, 10 of the 14 members of the Private Protective Services Board are appointed by the legislature, and the governor can only remove his appointees in narrow circumstances.
GOP legislative leaders countered in briefs that the courts have offered no "categorical rule" to determine a board's constitutionality, requiring judges to address on a case-by-case basis the level of gubernatorial control.
"Essentially it is a balancing test overall. But it can be, in fact, hard to draw that line," said Martin Warf, an attorney for the Republicans.
Since winning the November 2016 election, Cooper has sued the legislature several times over laws that eroded his gubernatorial powers and shifted them to the General Assembly, with mixed legal outcomes for him. Earlier this week Cooper asked a court to remove two proposed constitutional amendment referendums from this fall ballots, arguing the questions unlawfully conceal further power grabs. A hearing on the questions is set for next Wednesday.
Warf on Friday asked the judges to delay their ruling on the boards and commissions until after voters decide in November whether to approve one of the amendments. It would essentially overrule the previous Supreme Court decisions by stating the legislature controls the membership and duties of all boards and commissions it creates.
"If the amendment is adopted, the need to adjudicate the constitutionality of these boards likely becomes moot," Warf said. David asked the judges to reject further delays by legislators, and said the amendment's passage is uncertain.
In addition to the protective services board, the commissions Cooper is challenging are the Child Care Commission, Clean Water Management Trust Fund board, State Building Commission, Parks and Recreation Authority and Rural Infrastructure Authority.
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