The latest round in a long-running fight over political power in North Carolina is scheduled to go before a judicial panel Wednesday in a process that could ultimately decide who approves electricity rates, approves building codes and sets other important state policies.
Republican lawmakers passed bills this year reworking key state boards and stripping the governor’s office of some of his appointment powers.
Cooper and his Republican predecessor, Pat McCrory, have won similar arguments in the past against the General Assembly’s Republican majority. But in last year’s elections voters flipped control of the state Supreme Court, which now has a 5-2 Republican majority, and state lawmakers predict success this time around.
State Supreme Court Justice Paul Newby wrote the lone dissenting opinion in a key precedent at issue in this new case, when the court had a Democratic majority. Now serving as chief justice of the GOP-majority court, Newby is empowered to pick the three-judge panel that will hear the new case. Lawmakers tinkered with that panel selection process during this year’s legislative session to give Newby more flexibility.
Superior Court justices John Dunlow, Paul Holcombe and Dawn Layton were scheduled to hear the case, starting with a 10 a.m. Wednesday hearing in Wake County. Dunlow and Holcombe are Republicans. Layton is a Democrat.
Cooper’s lawsuit argues that the two bills violate the state constitution by stealing power from the executive branch. The appointment shifts make it impossible for the governor to perform “his core executive function of ensuring that the laws are faithfully executed” because he no longer appoints the majority of members on important boards, Cooper argues.
Republican lawmakers counter that the state constitution grants them the power to make these appointments and to serve “as a primary check on the exercise of executive power.”
“Stripped of political rhetoric, the governor’s lawsuit seeks a result that is neither dictated by ‘settled decisions’ of the North Carolina Supreme Court, nor warranted to protect ‘separation of powers’ — at least not in any form the drafters of our constitution would recognize,” they wrote in a recent case filing.
Senate Bill 512 dealt with nine boards and commissions, including the State Board of Transportation and the North Carolina Utilities Commission, which sets electricity rates. House Bill 488 created a new Residential Code Council which was given the authority to adopt and amend the state building code.
The previous building code council had 17 members — all appointed by the governor. The new council has 13 members — six appointed by the General Assembly and seven by the governor, though the governor’s appointments must be confirmed by the state Senate.
