Opportunity scholarships, judicial selection back in court

By: Lindsay Marchello - Carolina Journal

RALEIGH — The continuing battle over separation of powers between Democratic Gov. Roy Cooper and the Republican-led General Assembly played out simultaneously in two venues Friday morning.

At the Legislative Building, the Senate debated and passed House Bill 90, a measure among other things taking control of a discretionary Atlantic Coast Pipeline fund Cooper claimed for himself. A few blocks away at Campbell University School of Law, attorneys for Cooper and the legislature clashed over a law cutting the number of appeals court judges and funding the Opportunity Scholarship Program.

A three-judge Superior Court panel heard arguments Feb. 9 in Cooper v. Berger. The defendants, Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, asked Judges Henry Hight, Jay Hockenbury, and Nathaniel Poovey to dismiss the lawsuit.

Cooper v. Berger deals with two issues. Cooper has argued House Bill 239, which reduces the number of judges on the Court of Appeals from 15 to 12, encroaches on his constitutional authority to appoint judges.

The governor also has objected to a provision in the budget law — Senate Bill 257 — that outlines funding for the Opportunity Scholarship Program and requires Cooper to include the appropriated funds in the base budget.

Cooper has staunchly opposed opportunity scholarships — tuition vouchers allowing low-income K-12 students to attend private schools — refusing to include funding for them in any budget he has proposed.

“The legislature is telling the governor to include vouchers in the base budget. The base budget is part of the recommended state budget and preparing that recommended state budget is assigned exclusively to the governor,” said attorney Eric David, who represented Cooper. “When the General Assembly dictates what the governor is supposed to include in his recommended state budget, they are violating the separation of powers.”

David argued the recommended state budget should reflect the governor’s priorities, because the constitution says only the governor can recommend a budget. But because the base budget is part of the recommended state budget, the General Assembly violated separation of powers by requiring opportunity scholarship funding to be part of the base budget.

“Yet the voucher mandate in the legislature is seeking to make the governor their mouthpiece … for a policy he doesn’t support,” David said.

Martin Warf, arguing for Berger and Moore, said it’s not a constitutional violation to require the governor to prepare a base budget reflecting the law. Warf said the governor can make a case for his policy priorities in his recommended state budget.

“The base budget does not constrain the governor’s ability to recommend whatever he likes going forward. He still has that ability,” Warf said. “The base budget is a reflection of the law.”

The base budget, he said, is a starting point the executive and the legislative branches use to prepare and enact a future budget. While the governor can recommend whatever funding he desires, the General Assembly can choose whether to adopt the recommendations.

In the 2017 budget proposal, Cooper recommended about $4 million to fund opportunity scholarships for students currently enrolled, while adding a note saying he didn’t anticipate any new scholarships. The General Assembly didn’t adopt Cooper’s recommendation, and instead provided more than $44 million for fiscal year 2017-18 and more than $54 million for fiscal 2018-19. Cooper vetoed the bill, but the General Assembly had enough votes to override it.

“What is reflected in the base budget is the law. What he wants to do with that going forward is in the recommended budget, and he is free and clear to do anything he wants in that budget,” Warf said. “It is not unconstitutional for the General Assembly to tell him to make sure the base budget is correct.”

The issue of separation of powers also came up in arguments over the legislature’s attempts to reduce the number of appellate judges.

Attorney Jim Phillips, representing the governor, argued the law was unconstitutional because the General Assembly can’t shorten or lengthen judicial terms.

H.B. 239 fails to immediately abolish three judicial positions, but when a judge resigns or retires, the position would be eliminated until the total number of appeals court judges drops to 12.

Phillips argued it’s the governor’s constitutional right to appoint judges. The legislation would likely prevent Cooper from appointing any new appellate judges in the near future.

“The General Assembly’s claim is shocking in its breadth. Based on their interpretation of the law there’s nothing to stop them from abolishing the term or abolishing the seat of a judge sitting in office whose decision they disagree with,” Phillips said.

Attorney Noah Huffsteler, representing Berger and Moore, said the law is constitutional because it doesn’t prevent the governor from filling a vacancy. Huffsteler argued that there’s no vacancy for the governor to fill if the office no longer exists.

“There is nothing in the constitution that forbids the General Assembly from abolishing an office at the end of the eight-year term,” Huffsteler said.

Lindsay Marchello

Carolina Journal