Raleigh, N.C. — Gov. Roy Cooper on Friday filed another lawsuit against legislative leaders, accusing them of overstepping their authority in reducing the size of the state Court of Appeals and in controlling various state boards.
The lawsuit marks the third time Cooper and lawmakers will battle in court since his election six months ago.
The General Assembly in March approved legislation cutting the Court of Appeals from 15 judges to 12 as three older judges reach the mandatory retirement age of 72. The move prevented Cooper from naming people to serve the remainder of the judges' terms. He vetoed the bill, but lawmakers overrode the veto.
The lawsuit contends that eliminating three seats on the court as judges retire essentially shortens the terms of those three seats. The state constitution spells out that judicial terms on the Court of Appeals run for eight years.
"On multiple occasions, the North Carolina Supreme Court has interpreted this provision and confirmed that judicial terms may not be shortened from the constitutionally required eight-year term, even if the incumbent retires or resigns," the lawsuit states.
Cooper also is challenging a measure lawmakers passed in a special session in December that granted Yolanda Stith, the wife of then-Gov. Pat McCrory's chief of staff, a nine-year term on the North Carolina Industrial Commission, a quasi-judicial body that handles worker compensation and tort claims against the state.
Industrial Commission members usually serve six-year terms, and a governor can appoint people to serve the remainder of a term if a commissioner steps down.
The legislation passed in December allowed McCrory to appoint Stith to the remainder of an open seat on the commission that was to expire in April 2019, as well as a normal six-year term after that. The measure was written in such as way that, as soon as that appointment was made, rules reverted back to normal for all other commission appointments.
"Thus, the net result ... [was] Stith – and, by statutory design, only Stith – received the exclusive privilege of a nine-year term on the Industrial Commission valued at more than $1 million," the lawsuit states. "There is no explanation or indication in the language of Part V of Session Law 2016-125 of why the General Assembly believed Stith was entitled to a unique nine-year term on the Industrial Commission or how doing so would advance our State's general welfare."
The lawsuit argues that the move not only interferes with Cooper's power to appoint people to the Industrial Commission, it also violates the state constitution's version of the emoluments clause, which prohibits "exclusive privileges" to people in public service.
Finally, the lawsuit challenges legislative control of several state boards and commissions that carry out executive branch functions, including the Clean Water Management Trust Fund, the Child Care Commission, the State Building Commission, the Parks and Recreation Authority, the Rural Infrastructure Authority and the Private Protective Services Board.
The state Supreme Court ruled last year in a lawsuit brought by McCrory over control of the commission created to handle coal ash cleanup that the governor needs to have control over such agencies. Cooper's lawsuit contends that state laws need to be adjusted so that his administration can exert more control over the six named boards and commissions.
Cooper has already sued lawmakers over other measures they passed in the December special session, including merging the State Board of Elections and the State Ethics Commission, requiring Senate confirmation of his cabinet secretaries and sharply reducing the number of political appointments he could make in state agencies.
A three-judge panel ruled in his favor on the elections-ethics and political appointments issues but said the cabinet confirmations process doesn't violate the state constitution. After lawmakers tweaked the elections-ethics combination to meet the judges' concerns and passed it over his veto, he filed a second lawsuit over the matter.