Separation of powers: Cooper v. Berger II

Case name: Cooper v. Berger II

What it's about: Separation of powers

State or federal court: State, three-judge panel in Wake County Superior Court

Summary: State lawmakers in April 2017 passed legislation over Gov. Roy Cooper's veto to shrink the size of the state Court of Appeals from 15 to 12 judges as three older judges reach mandatory retirement age. In a special session in December 2016, lawmakers passed a measure granting a nine-year term on the state Industrial Commission to then-Gov. Pat McCrory's chief of staff. Cooper has filed a lawsuit that challenges both actions, saying they violate the separation of legislative and executive powers called for in the state constitution by preventing him from naming new judges to the appeals court and a new member of the Industrial Commission. The lawsuit also demands the General Assembly rewrite laws concerning several state boards and commissions so they comply with a 2016 state Supreme Court ruling that governors control such panels when they carry out executive functions.

Cooper amended the complaint in August 2017 to also allege that lawmakers overstepped their authority in a few provisions of the 2017-18 state budget, such as authorizing annual increases to the Opportunity Scholarships school voucher program.

In the real world: One of the Court of Appeals judges set to retire stepped down early so Cooper could name another judge to serve out his term. No other action has been taken on any of the disputes in the lawsuit.

Where it stands: Arguments before a three-judge panel are set for Feb. 9 on part of the lawsuit and March 23 on another part.