School vouchers, court size central to Cooper's latest court battle against lawmakers

Posted February 9, 2018 3:07 p.m. EST
Updated February 9, 2018 7:11 p.m. EST

— Lawyers for Democratic Gov. Roy Cooper and Republican legislative leaders were back in court Friday, battling over school voucher spending included in the state budget and a law trimming the size of the state Court of Appeals.

The hearing before a panel of three Superior Court Judges is the latest front in an ongoing power struggle between Cooper and the General Assembly. Courts have already ruled that lawmakers overstepped their authority in overhauling the state elections board and in stripping the governor of some of his appointment powers while ruling the legislature has the power to hold confirmation hearings for cabinet appointees.

As part of the state budget approved last summer, lawmakers called for increases of at least $10 million a year over the next decade for the Opportunity Scholarships private school voucher program. The administration's budget director was ordered to include this money in future budget proposals, eventually building the program to $134.8 million a year.

Lawmakers have no authority to dictate what a governor puts in the budget he recommends every year, Eric David, an attorney for Cooper, argued to Judges Henry Hight of Vance County, Jay Hockenbury of New Hanover County and Nathaniel Poovey of Catawba County.

"The General Assembly is seeking to make the governor their mouthpiece," David said, by substituting their priorities in the budget for his.

Martin Warf, an attorney for lawmakers, countered that the state's base budget is merely a reflection of laws passed to that point. Including more money for vouchers in the base budget doesn't preclude Cooper or future governors from adding to or subtracting from the total in providing a proposed budget to lawmakers, he said.

Also last year, lawmakers passed a measure over Cooper's veto to cut the size of the Court of Appeals from 15 judges to 12. The court would be winnowed down as judges reach retirement age in the next few years.

Jim Phillips, an attorney for Cooper, said the state constitution sets appellate judges' terms at eight years, and lawmakers are violating that by eliminating judgeships before that eight years is up. The move also takes away Cooper's right to name successors to fill the remainder of the eight-year term.

But Noah Huffstetler, an attorney for the lawmakers, differentiated the office from the eight-year term, saying the offices are being eliminated, so there is no vacancy for the governor to fill. The only constitutional restriction lawmakers face is to have at least five judges on the Court of Appeals, he added.

Phillips responded, however, that allowing the law to stand would create a bad precedent, allowing lawmakers to abolish offices at will.

Cooper initially got around the law when a Court of Appeals judge took early retirement, and the governor was able to appoint a successor before lawmakers overrode his veto.