RALEIGH, NC (WECT) - Attorneys representing Governor Roy Cooper have filed for a temporary restraining order to keep the state Senate from conducting hearings on the governor's cabinet nominees.
The order was filed Monday in Wake County Superior Court, asking a judge to keep Part III of House Bill 17 from taking effect. A spokesman said the administration expects a hearing on the issue to happen sometime on Tuesday.
Gov. Cooper is challenging the constitutionality of the law the General Assembly passed in December. It mandates the governor's cabinet nominees be subject to "senatorial advice and consent." Gov. Cooper wrote a letter to Senate Leader Phil Berger (R-Rockingham) on Monday that suggests holding off on the hearings until a court decides on the issue. The senate's meetings with Gov. Cooper's nominees are scheduled to begin on Thursday, Feb. 8.
Sen. Berger responded to Gov. Cooper's letter in an email statement.
"For years, cabinet secretaries have met behind closed doors to share their qualifications and address any concerns – like conflicts of interest – legislators may have," Sen. Berger said. "It is extremely disturbing that Roy Cooper is demanding the state courts keep these meetings hidden behind closed doors and out of the public eye."
The following is a copy of Gov. Cooper's letter to Sen. Berger, as provided by the governor's office:
February 6, 2017
The Hon. Phil Berger
President Pro Tempore
16 W. Jones Street
Raleigh, N.C. 27601
Dear Senator Berger:
The Cabinet secretaries I have appointed look forward to a close working relationship with you and the members of the Legislature. They have been visiting your members and we look forward to them appearing before other committees, visiting your caucuses, providing information and answering questions and communicating in other ways with you.
House Bill 17 (N.C.G.S. Section 143 B-9) passed in December after my election directs me, as Governor, to submit the names of cabinet secretaries for senatorial advice and consent. This law is unprecedented as far as we know and has been challenged as unconstitutional in a lawsuit filed in Wake County.
Despite the pending lawsuit and despite my request for delay until the lawsuit is decided, the Senate has scheduled my appointees to appear for confirmation hearings beginning this Wednesday, February 8th. These hearings are premature for two reasons. First, the lawsuit provides clear case law from the Supreme Court that advice and consent applies only to Constitutional officers and not statutory cabinet secretaries. Second, North Carolina law says I am not required to submit names of persons to be confirmed to the President of the Senate until May 15, 2017 (see N.C.G.S Section 147-12(3d) and I have not done so.
I would prefer to work this scheduling issue out amicably rather than resorting to the courts. To that end, I asked my legal team to try to expedite the court proceedings so that a final decision on the merits of our claims could be achieved in time for me to meet the May 15th deadline, if necessary.
Consistent with that, I understand that my lawyers and those representing you and Speaker Moore have proposed to the court a schedule which would provide for a hearing and decision by the panel in early March of this year. The opportunity still exists to avoid needless confrontation and court proceedings over a scheduling issue. But with hearings set to begin on Wednesday, that window is rapidly closing.
Instead of going through all of these confirmation hearings which we believe will become moot, why don't we instead concentrate on continuing the excellent work your leadership and I are already doing on job recruitment? We also must find a solution on HB 2 and have more detailed discussions about teacher pay and Medicaid, among many other issues. Our time and energy would be better spent on these challenges.
I know we disagree on the constitutionality of this law, but I hope we can resolve this issue concerning the delay of hearings in a manner that reflects a spirit of respect for the offices we both hold and the people of the state we both serve.
With kind regards, I am
Very truly yours,
cc: Senator Bill Rabon
Senator Dan Blue
Senator Tommy Tucker
Former state representative Susi Hamilton of Wilmington is scheduled to meet with members of the Senate Committee on Agriculture, Environment and Natural Resources on Thursday, Feb. 16. Gov. Cooper nominated Hamilton to be Secretary for Natural and Cultural Resources.