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N.C. Supreme Court grants Cooper’s request to halt Elections Board, Ethics Commission merge

The State Board of Elections and the State Ethics Commission merger has once again been put on hold, this time by the North Carolina’s highest court.

The state Supreme Court issued a temporary stay of a Court of Appeals ruling that overturned a lower court’s preliminary injunction on the first part of Senate Bill 4. Gov. Roy Cooper had filed the emergency motion for a temporary stay.

The first part of Senate Bill 4, which was passed by GOP legislators during a special session in December, eliminates the current State Board of Elections and State Ethics Commission and merges their powers and duties into one new “bipartisan” Board.

Cooper is challenging the constitutionality of the law in court.

A trial is set to take place in March 7 before the three-judge panel that issued a preliminary injunction halting the merger until the conclusion of the case.

Attorneys for defendants Senate President Pro Tem Phil Berger and House Speaker Tim Moore had appealed their preliminary injunction and a separate three-judge panel with the state Court of Appeals overturned it, permitting the merger to proceed.

The three appellate judges’ names have not yet been released, despite the fact that Berger’s son, Phil Berger Jr., sits on the bench. It’s unknown if he was on the panel that overturned the preliminary injunction.

In addition to the temporary stay, Cooper’s attorneys also filed a writ of certiorari with the Supreme Court asking it to review and vacate the Court of Appeals ruling altogether. The court has not yet responded to that request.

The Supreme Court cannot take on the entire case until it works its way through Superior Court.

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Updated: Mixed news for Cooper from 3-panel judge on confirmation hearings

This story has been updated to reflect new statements from the Governor’s Office.

There appears to be some confusion after a court ruling Tuesday about whether the Senate can continue with confirmation hearings for Gov. Roy Cooper’s cabinet appointees.

The six-page order from a three-panel judge states that Cooper has to formally submit his cabinet appointees to the Senate president before the Senate can begin the advice and consent process. But the order is also a denial of Cooper’s request for a preliminary injunction to halt those hearings until the conclusion of his lawsuit challenging the constitutionality of the hearings.

The judges also dissolved a temporary restraining order they previously granted halting the hearings.

Cooper’s office said they are satisfied with the ruling because it makes clear that the governor has to initiate the advice and consent process, which he has not yet done.

“The three judge panel has made clear that the ‘Senate cannot begin the advice and consent process until the Governor submits a nominee,'” said Cooper’s spokesman Ford Porter. “The panel also found that the Governor has not submitted his nominees and has until May 15 to do so. The Governor plans to wait for the full hearing on the constitutionality of this law to go forward on March 7th before submitting his nominees, which he believes will not be necessary.”

But Senate President Pro Tem Phil Berger and House Speaker Tim Moore released a joint statement after the court’s order praising the judges for allowing them to move forward.

“It is incredibly encouraging that this court has shown judicial restraint and rejected Gov. Cooper’s extraordinary request to stop the people’s elected representatives from conducting a fair, open and transparent hearing process to determine whether his proposed cabinet secretaries are qualified, without conflicts of interest, and willing to follow the law,” it states.

The judges did write in the order that Cooper’s appointees can serve as acting officers in their appointed roles and may appear before the General Assembly on matters related to their service.

Cooper’s counsel, however, said that it means appointees can continue meeting with legislators to talk about their portfolios, but the order makes clear the Senate can’t hold the hearings until Cooper formally submits his appointees.

The judges wrote in the order that Cooper’s attorneys had not established a likelihood of irreparable harm because none of his nominees had been denied Senate confirmation. The order also states that Cooper could return to court should one of his nominees be denied confirmation.

The judges did not address the constitutional challenges raised regarding the hearings and a trial is set to take place March 7.

Sen. Bill Rabon (R-Bladen, Brunswick, New Hanover, Pender), who is chairman of the Senate Committee on Nominations, declined to comment on how the committee will move forward. His office said Rabon is still talking the verdict over with Berger and other Senate leaders.

Hearings were expected to take six weeks.

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Clerk refuses to name appellate judges who overturned halt on Election Board, Ethics Commission merge

WRAL published an article Friday about the North Carolina Court of Appeals refusing to disclose the names of the three judges who issued an order in an ongoing dispute between Democratic Gov. Roy Cooper and top GOP lawmakers.

That’s despite that fact that Phil Berger Jr., who was elected to the court in November, is the son of Sen. Phil Berger, R-Rockingham, one of the named defendants in the case. It’s unclear whether the younger Berger participated in the decision.

“Pursuant to policies and procedures established by the North Carolina Court of Appeals, the names of the judges who rule upon motions and petitions prior to the case being calendared for argument are not disclosed,” Dan Horne, clerk for the Court of Appeals, wrote in an email to WRAL News.

Pressed to make an exception to court policy in this case, Horne said, “The three judges who ruled upon this motion are deemed to have ruled on behalf of the entire court. For that reason, such orders are orders of the entire court and are issued under the Clerk of Court’s signature.”

The Court of Appeals overturned a lower court’s preliminary injunction last week in Cooper v. Berger, which challenges the constitutionality of Senate Bill 4. The bill, which was passed during a December special session, eradicates the current State Board of Elections and State Ethics Commission and merges their powers and duties into one new “Bipartisan Board.”

Cooper’s attorneys immediately filed an emergency motion with the state Supreme Court but a decision on whether justices will review the case has not yet been made. The North Carolina Administrative Office of the Courts has not yet released that emergency motion.

It should be noted that Senate Bill 4 also changed the appeals process — which affected this case favorably for the lawmakers. The bill eliminated a direct right of appeal to the state Supreme Court for final or interlocutory judgments that deem an act by the General Assembly unconstitutional.

Instead of the direct appeal to the state Supreme Court, which has a 4-3 Democratic majority, the appeal goes first to the state Court of Appeals, which has an 11-4 Republican majority.

The Appeals Court order was signed by Horne without the names of the judges attached, according to the WRAL article.

The elder Berger is the powerful president pro tem of the Senate, a position that gives him a great deal of say over what bills do and do not become law and a great deal of influence over the state budget. His son won election in November to the 15-member Court of Appeals, which hears cases and makes decisions in three-judge panels.

The younger Berger did not immediately respond to a call to his chambers or mobile phone asking if he was part of the panel. WRAL News had submitted a public records request to the court asking for records that would show those names.

“If they have a record that is applicable, they should turn it over,” said Jonathan Jones, director of the North Carolina Open Government Coalition.

Late Friday, the Horne replied, “We do not have a record that is responsive to your request.”

A spokesman for the elder Berger told WRAL that the senator did not know who the appellate judges were and that “this type of appellate court panel is anonymous.”

It’s an interesting response since earlier the same day his attorney touted in court that the General Assembly is all about transparency. That court hearing was another request for a preliminary injunction due to a constitutional challenge of Senate confirmation hearings.

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Judges deliberating halting Senate decisions on Cooper’s appointees until lawsuit resolution

A three-judge panel did not decide from the bench Friday whether to temporarily block the Senate from making decisions on Gov. Roy Cooper’s cabinet appointees.

The panel issued a temporary restraining order earlier this week but heard arguments Friday about whether to issue a preliminary injunction for 25 days until the overall case is resolved.

Cooper’s attorney Jim Phillips, of Greensboro, made a separation of powers argument, stating that the legislative branch is encroaching on the executive branch by exercising advice and consent on Cooper’s appointees.

He also said that the threat of the legislature vetoing one of Cooper’s “most important powers” limits his appointee choices because he has to choose someone to appease the Senate.

“It has a chilling effect on the governor’s decision making,” Phillips said.

Martin Wharf, a Raleigh attorney representing Senate President Pro Tem Phil Berger and House Speaker Tim Moore, argued that a law passed by the General Assembly is constitutional “unless it is clearly prohibited.”

The Senate’s authority to give advice and consent does not take away the governor’s power to make appointments, he added.

Berger and Moore’s other attorney, Noah Huffstetler III argued that until the Senate moves forward with confirmation hearings, the harm to Cooper is just speculation — they don’t know what the process actually looks like or how long it will take.

He also said that the May 15 deadline Cooper has to formally submit his appointee names to the Senate is moot when he sends out press releases touting their qualifications and they begin doing “the people’s business.”

He added that it should be assumed Cooper and his aides conducted thorough vetting already of the appointees, but if they hadn’t, it was “all the more reason this confirmation process is necessary.”

Judge Jesse B. Caldwell III questioned Huffstetler about why confirmation hearings hadn’t been held in the past.

“If we have an executive branch that’s out of control, out of control, that needs to be reeled in … then why wasn’t this done before?” he asked.

Huffstetler said the hearings were not established as a reaction to Cooper being elected and that the legislature was a proponent of transparency.

“I think it’s just a good, sound public policy,” he said. “I believe that it’s probably overdue, your honor, that’s the best answer I can give.”

He added that just because it hadn’t been done in the past didn’t mean that it should stop them from doing it in the future.

Caldwell said if a preliminary injunction was ordered, it would not stop the Senate from holding hearings, it would only make their votes null and void until the lawsuit was settled.

Phillips argued that it should stop the hearings altogether because of the time it would require of appointees.

Caldwell and Judges Jeffrey B. Foster and L. Todd Burke will deliberate before making a decision.

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Court of Appeals overturns lower court order that halted Elections, Ethics Commission merge

The North Carolina Court of Appeals has said that the General Assembly’s bill overhauling the State Board of Elections can move forward, overturning the lower court’s preliminary injunction.

The first part of Senate Bill 4 would eradicate the current State Board of Elections and State Ethics Commission and merge their powers and duties into one new Board. Cooper is challenging the law in court and a three-judge panel had ruled that the board would be prevented from merging until the conclusion of the case.

In light of the Court of Appeals decision overturning that order, Cooper’s attorneys filed an emergency motion with the state Supreme Court.

State Ethics Commission Chairman John Branch said Friday morning that the agency’s 9 a.m. meeting was recessed until 11 a.m. “due to the unsettled nature of what’s going on.”

It’s unknown if the Commission is supposed to continue business or move into the newly created bipartisan Elections and Ethics Commission, under the guidance of Senate Bill 4.

Branch said if the Supreme Court steps in, the Ethics Commission will proceed as if nothing happened, but if the court hasn’t reached a decision by 11 a.m., the agency will call an emergency meeting to meet with attorneys.