In Cooper lawsuit, North Carolina judges block new makeups of 2 boards, leave 5 intact

New compositions of North Carolina boards that approve transportation policy and spending and select economic incentive recipients are unconstitutional because lawmakers would have too much control over them, a panel of trial judges ruled.

Three judges hearing Democratic Gov. Roy Cooper's lawsuit against Republican legislative leaders permanently blocked portions of a new law that change the memberships of the state Board of Transportation and the Economic Investment Committee.

But the Superior Court judges declined this week to strike down the makeup of five other boards and commissions as set in 2023 laws that Cooper's attorneys also argue prevent him from having sufficient authority over them to ensure laws are carried out effectively.

The judges said the governor or other executive branch leaders combined still had enough power over these five boards — or in one case the board's political appointees — so it wasn't reasonable to rule the General Assembly had violated the doctrine of keeping legislative and executive branch responsibilities separate.

Attorneys for House Speaker Tim Moore and Senate leader Phil Berger filed a notice of appeal of the decision to the Court of Appeals on Friday. The trial judges' ruling could be delayed while arguments continue.

Republicans who enacted the laws over Cooper’s vetoes have said commission changes bring more viewpoint diversity to state panels. A governor would no longer have a majority of appointments on six of the seven boards that Cooper challenged.

The lawsuit is one of many filed by Cooper against GOP legislative leaders over the balance of power in the two branches of government since 2016.

Cooper spokesperson Mary Scott Winstead said Friday that the state Supreme Court has repeatedly ruled that the General Assembly can't take away the governor's power to implement laws: “It’s disappointing that the court did not see through the legislative smokescreen and find that all of these laws are unconstitutional, not just two of them.”

The five panels whose makeups were allowed to stand included the Commission for Public Health. That commission and the transportation and incentives boards had been named in a preliminary injunction that the judges issued in November preventing their membership changes while the lawsuit continued.

That prohibition continued with the Board of Transportation and Economic Investment Committee with Wednesday's unanimous ruling by Judges John Dunlow, Paul Holcombe and Dawn Layton.

Under the new law, the General Assembly would appoint 14 Board of Transportation members and the governor six — a reversal of the previous division in which the governor chose 14 appointees.

And the judges said the new makeup of the Economic Investment Committee with the House speaker and Senate leader or their designees added to the panel ran counter to a 1982 court ruling prohibiting sitting legislators on such committees.

But the judges appeared to alter their thinking on the Commission of Public Health, for which the governor previously chose nine of its 13 members, with the rest allocated to the North Carolina Medical Society. The new composition gave four of the governor’s appointments to the General Assembly.

The judges wrote that the governor still maintained a majority of political appointments and that leaving medical professionals on the commission was reasonable “in light of the unique role and purpose" of the panel to approve public health rules so as to ensure independence from short-term political influence.

The judges' ruling also allowed the new compositions of the Environmental Management Commission, the Coastal Resources Commission and the Wildlife Resources Commission, as well as the makeup of the new Residential Code Council, which begins work in early 2025.

The panel said the governor would make a majority of appointments to the Residential Code Council, while in the other three the governor and the insurance commissioner or agriculture commissioner — who also are executive branch officers — would choose a majority.

“Our Constitution does not create a unitary executive,” the judges wrote, adding that the General Assembly's powers to organize and reorganize the executive branch “encompasses authority to divide between the Governor and other constitutional executive officers the power to appoint members of statutory boards and commissions.”

A pending Cooper lawsuit challenges another 2023 law that takes the governor's power to appoint state and county election board members and gives it to the legislature.