The standoff started on the first day of the General Assembly’s 2011 session, when a newly elected majority of Republicans convened to reshape the state of North Carolina.
Eager to assert their newfound power, GOP lawmakers took a pointed stand against President Obama’s Affordable Care Act by proposing to prevent North Carolinians from being compelled to buy health insurance. Their measure, which specifically directed the attorney general to defend the law in court, sailed through the legislature in just a few weeks.
But on the day it went to Gov. Bev Perdue, fellow Democrat and Attorney General Roy Cooper told her the legislation was unenforceable because it conflicted with federal law. Perdue vetoed it and the House was unable to muster the votes for an override.
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It was the first hint that Cooper’s resistance to GOP officeholders would one day become one of the defining issues in a gubernatorial campaign.
In recent weeks, state and national Republicans have amplified their criticism of Cooper in his bid to unseat Gov. Pat McCrory. They criticize the attorney general because of how he represented the state against lawsuits brought over more than half a dozen laws.
It has become a central theme of the McCrory campaign.
“It’s amazing that the attorney general will not fulfill the oath of his office to defend our laws of North Carolina,” McCrory said last month at a news conference, called after Cooper said he would not appeal a federal court ruling that overturned the state’s voter ID and early voting law. “He’s obviously letting his political opinion impact his job as attorney general.”
Cooper says the concern is unfounded and Republican leaders are wasting state money by hiring private lawyers. There are more than two dozen lawsuits that Cooper’s staff has defended since the Republicans took over, related to abortion, teacher tenure, magistrates opting out of performing same-sex marriages and more.
In addition, the N.C. Department of Justice handles thousands of criminal cases and under Cooper has aggressively pursued consumer protections, bringing the state the proceeds of substantial financial settlements.
“Attorneys in the Attorney General’s Office are professionals,” Cooper said in a recent interview with The News & Observer. “They take their cases seriously. They rely on the facts and the law and they do their job.”
History of fighting
Rep. Paul “Skip” Stam, a Republican lawyer from Apex, has a long history of fighting with the attorney general. After Perdue vetoed the health-care bill, Stam girded for a fight.
He asked the nonpartisan legislative services staff for its legal opinion. The staff concluded a strong argument could be made that Congress had exceeded its authority when it included an individual mandate for insurance coverage in the health-care law.
The staff in an analysis noted state law requires the attorney general “to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested.” It would be appropriate for Cooper to defend the bill if it became law, the staff concluded.
Stam and other GOP legislative leaders responded to the veto by filing a friend-of-the-court brief in a lawsuit brought by 26 states challenging the constitutionality of the federal health-care law, as a way of staking out their opposition to it and blaming Perdue and Cooper.
“It is a shame we had to file this brief because our governor and attorney general refused to defend the constitutional right of North Carolinians,” Senate leader Phil Berger said at the time.
Stam’s beef with Cooper goes back to a campaign finance lawsuit he brought on behalf of N.C. Right to Life a year before Cooper was elected attorney general in 2000. The justice department under then-Attorney General Mike Easley began the state’s defense against the suit, but under Cooper the state fought it for another six years before finally losing. Stam contends Cooper should have quit long before but was motivated by politics.
“If it’s something his side wants, he’s fighting tooth and nail all the way, even if it doesn’t have a chance of winning,” Stam said.
Cooper’s refusal to continue to defend some laws has infuriated GOP leaders. The attorney general’s decision to stop defending the voter ID law after the appellate ruling this summer went against North Carolina is a recent sore spot.
“It’s like a baseball team who has won all the way to the sixth inning, then in the seventh the other side ties it up and so they quit,” Stam said. “Lawyers don’t do that. They don’t abandon their client in the middle of litigation.”
The long-running battle between conservatives and Cooper flared up in March when the attorney general announced he would not defend against constitutional challenges to House Bill 2, the controversial law that restricted LGBT protections. Cooper said it would be a conflict for him to represent the state because his own department and the State Treasurer’s office have anti-discrimination policies.
Part of a trend
Cooper says he isn’t the problem.
“Over the last few years the General Assembly has continued to pass laws that push the bounds of the Constitution,” he said last week. “Our office has stepped up and has done its job.”
Cooper said doing his job doesn’t mean appealing every case to the U.S. Supreme Court. As the state’s attorney, he also must tell his clients when it’s no longer fruitful to continue. That’s what he did after the 4th U.S. Circuit Court of Appeals struck down the state elections law that included the photo ID requirement for voters, which he had defended for three years despite urging McCrory to veto the measure.
“When you have three federal circuit court judges who tell you that a law with surgical precision has intentionally discriminated against African-Americans, it’s time to stop,” he said, “and it’s time to reassess what has been done.”
Cooper noted the governor has the authority to hire outside counsel, and the legislature gave itself that authority in 2013. But he said it concerns him when multiple attorneys are hired to do what the state already pays his office to do.
The General Assembly has spent $9.3 million over the past five years on outside legal help. The governor has spent an additional amount but has not disclosed how much. The News & Observer requested that information in March.
Cooper isn’t the only attorney general in the country bucking legislators and governors, but it is a recent trend.
A Yale Law Review study last year found the trend began in 2008 with California Gov. Jerry Brown refusing to defend that state’s ban on same-sex marriage. At the time of the study, 16 attorneys general had followed course, refusing to defend laws on gun rights, campaign finances and other issues typically driven by party politics.
“I don’t think there’s any right answer to what the attorney general should or shouldn’t do,” co-author Saikrishna Prakash of the University of Virginia law school said.
But his record on defending lawsuits isn’t the only criticism Cooper’s opponents bring up. They also criticize him for his supervision of the State Crime Lab, although he inherited most of those problems when he became attorney general in 2001.
The extent of the problems didn’t surface until nine years later, when the Innocence Inquiry Commission exonerated a Wake County man when it was discovered that crucial lab results had been withheld. Cooper commissioned an independent audit that year, and achieved extensive accreditation improvements over the next two years.
The audit found 230 blood-evidence cases had been tainted, all but a few of them involving cases that had been closed before Cooper arrived.
Agent misconduct led to the state and its insurers paying more than $16 million to three men who had been wrongfully convicted before Cooper was in office, although the office under Cooper opposed the lawsuits and defended the SBI in court, either with staff lawyers or outside counsel.
The News & Observer published a series of stories in 2010 about agents’ misconduct and the pro-prosecution policies of the lab. The N&O recently reported that Cooper never publicly disclosed that an independent accreditation agency had found problems with the way the ballistics lab was documenting its work in 2010. The Republican Governors Association last week launched a TV ad campaign picking up on the story:
“Cooper’s failure to fix problems at the State Crime Lab may have impacted the state’s ability to administer justice,” the ad’s narrator says. “Cooper’s department even concealed for six years a report investigating serious negligence or misconduct. ... Roy Cooper didn’t do his job.”
He’s one of a handful of attorneys general across the country who is active in consumer protection.
Chris Kukla of the Center for Responsible Lending
Cooper is not criticized for doing his job when it comes to consumer protection. He made that a hallmark of his tenure as attorney general, saying he learned while working in his father’s small law practice that people who had been harmed needed help. That has translated to prosecuting banks and pharmaceutical companies when they have cheated consumers.
Most recently, Cooper’s office won $9 million in refunds to North Carolina residents from payday lenders, including $350,000 in court costs. Joining a federal lawsuit over falsified emissions data will bring up to $90 million to North Carolinians who bought Volkswagens, and a $17 million fine against the company that will go to public schools. Earlier this year, a settlement was announced that will bring $45 million to the state from Wyeth and Pfizer in a case alleging Medicaid fraud.
“He’s one of a handful of attorneys general across the country who is active in consumer protection,” said Chris Kukla of the Center for Responsible Lending, a Durham-based advocacy group that investigates questionable lending practices and promotes consumer-friendly policies.
“People really look to North Carolina as a leader in providing effective consumer protection in financial services: strong protections but also well-crafted to ensure good lending can continue, but rid of abusive practices.”
Some cases Cooper, GOP clashed
▪ Health insurance mandate – In 2011, the legislature ratified a bill that would have exempted state residents from having to buy health insurance, as required by the federal Affordable Care Act. Attorney General Roy Cooper said it couldn’t be enforced, and Gov. Bev Perdue vetoed it.
▪ Same-sex marriage – North Carolinians in 2012 passed a constitutional amendment that banned same-sex marriage. Cooper defended the law until the federal appeals court whose jurisdiction includes this state overturned a similar law in Virginia.
▪ Voter identification – The legislature and governor in 2013 passed an elections bill that required voters produce photo identification. Cooper and outside attorneys defended the case until a federal appeals struck down the law last month, at which point Cooper said he would no longer defend. He had advised the governor to veto the bill.
▪ House Bill 2 – After the General Assembly in a special session in March approved a law restricting LGBT protections, and the governor signed it into law, Cooper declined to defend it in court, citing a conflict because his own department had anti-discrimination policies.
▪ Wake redistricting – Cooper’s office defended the state against a suit challenging the district election maps for members of the Wake County school board and county commissioners. Earlier this year an appeals court ruled the maps were illegal. Republican legislative leaders blamed Cooper for not doing all he could in the case. But once legislative leaders were dropped from the lawsuit, Cooper’s office no longer had defendants.