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Cooper sues to alter makeup of NC government rules panel

By Gary D. Robertson, Associated Press

North Carolina Gov. Roy Cooper sued legislative leaders again on Friday, this time challenging the composition of a powerful commission that scrutinizes regulations agencies create to carry out state law.

Cooper, a Democrat, contends the makeup of the Rules Review Commission violates principles in the state constitution that separate the powers of the legislative and executive branches. The governor cites recent court rulings involving lawsuits he and Republican predecessor Pat McCrory filed that forced the legislature to alter the makeup of several state commissions on similar grounds.

All 10 rules commission members are picked by legislative leaders, who are currently Republicans. Cooper’s lawsuit in Wake Superior Court says the governor “lacks no meaningful control over” the panel, even though it is “indisputably” an executive agency. Thus, the governor believes he should be able to appoint a majority of its members.

The commission’s current composition “allows the legislature to interfere with and undermine the executive branch’s authority to establish policy through rule-making,” the governor’s office said in a memo about the lawsuit.

The General Assembly created the commission in the mid-1980s when Democrats controlled the legislature and the governor, then a Republican, even lacked veto power over bills. Legislative leaders appointed all the commission members back then, too.

The commission decides whether to approve or reject temporary or permanent agency rules — details that lawmakers have delegated to government departments. Approval is based on whether the rules are clear and unambiguous and whether the state agency proposing them has authority to carry them out.

The lawsuit and Cooper’s office suggest the commission’s interference is particularly acute today. The commission has blocked roughly 200 rules from taking effect in the past two years, the lawsuit said. It pointed to two cases — one involving the Department of Public Safety, and the other involving the Department of Health and Human Services — in which Cooper contends the panel went too far by blocking his policy and substituting its own.

House Speaker Tim Moore and Senate leader Phil Berger are the lawsuit’s defendants. Sen. Ralph Hise, a Mitchell County Republican, said the lawsuit is “another power grab” by Cooper.

Hise alleged that Cooper is suing because the commission in May rejected a rules request by the State Board of Elections that Republicans said would have given the board’s executive director more control over elections in response to COVID-19. The composition of the elections board was the subject of previous Cooper lawsuits, which largely were won by the governor. Three of the five board members are Democrats.

“Now, the governor is using the same strategy …. to try to gain control of the Rules Review Commission,” Hise said in a news release.

Previously successful lawsuits filed by McCrory and Cooper addressed government panels including the Oil & Gas Commission, Child Care Commission and Clean Water Management Trust Fund.

Cooper has filed several lawsuits against Moore and Berger that challenge legislative action, including laws that took effect just before he took office in early 2017.

The state Supreme Court will hear oral arguments on Monday in a Cooper lawsuit that seeks to overturn the General Assembly’s decisions on how it spent federal block grant money in the 2017 budget law. The Court of Appeals sided with lawmakers last year in the case.

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