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Cooper v. Berger

Court of Appeals of North Carolina

November 7, 2017

ROY A. COOPER, III, in his official capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA, Plaintiff,
v.
PHILLIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; and TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, Defendants.

          Heard in the Court of Appeals 20 September 2017.

         Appeal by plaintiff from Memorandum of Order entered 17 March 2017 by a three-judge panel comprised of Judges L. Todd Burke, Jesse B. Caldwell, III, and Jeffery B. Foster, in Wake County No. 16 CVS 15636 Superior Court.

          Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., Eric M. David and Daniel F. E. Smith, for plaintiff-appellant.

          Nelson Mullins Riley & Scarborough LLP, by D. Martin Warf, Noah H. Huffstetler and Candace Friel, for defendant-appellees.

          Panel Consisting of: Elmore, Stroud, and Tyson, JJ.

          PER CURIAM.

         Roy A. Cooper, III, in his official capacity as Governor of the State of North Carolina, appeals from an order of a three-judge superior court panel, which granted summary judgment in favor of Phillip E. Berger and Timothy K. Moore, in their official capacities, respectively, as President Pro Tempore of the North Carolina Senate and as Speaker of the North Carolina House of Representatives (collectively, "the General Assembly"). The order is affirmed.

         I. Background

         On 8 November 2016, a majority of North Carolina voters elected Roy A. Cooper, III as Governor, who took his oath of office and whose term commenced on 1 January 2017. On 16 December 2016, the General Assembly duly enacted Session Laws 2016-125 (Senate Bill 4) and 2016-126 (House Bill 17), which were signed into law by the current Governor, Patrick L. McCrory, and became effective immediately.

         On 30 December 2016, Mr. Cooper, while continuing to serve as the duly elected Attorney General of North Carolina, and while the sitting Governor remained in office, filed a complaint in his capacity as "Governor-elect, " sought a temporary restraining order, and a temporary injunction in the Wake County Superior Court, and asserted the statutory amendments set forth in Session Law 2016-125 were unconstitutional. On the same day, the trial court granted a temporary restraining order, enjoining the challenged portions of Session Law 2016-125 before they went into effect.

         The Chief Justice of the North Carolina Supreme Court convened and assigned a three-judge superior court panel to hear the constitutional challenges to Session Law 2016-125. On 6 January 2017, the panel preliminarily enjoined the challenged portions of Session Law 2016-125, pending a final determination on the merits.

         Governor Cooper filed an amendment to his complaint on 10 January 2017 and raised constitutional challenges to Part III of Session Law 2016-126 (the "Advice and Consent Amendment") and the portions of Sections 7 and 8 of Part I of Session Law 2016-126 codified at N.C. Gen. Stat. § 126-5(d)(2c) (the "Exempt Positions Amendments"). The superior court conducted a hearing on the merits of his claims on 7 March 2017.

         On 17 March 2017, the trial court panel entered summary judgment in favor of the General Assembly and rejected the Governor's challenge to the Advice and Consent Amendment set forth in Session Law 2016-126. The panel found "[a]dvice and consent is an exclusive function of the legislative branch." The panel further found the executive appointees at issue "are the most important appointments a Governor makes, as they are appointed to lead the State's principal departments, said departments having been created by act of the legislative branch."

         The panel further found:

6. A Legislature that has the authority to create executive agencies also has the authority to require legislative advice and consent to fill the leadership roles in those agencies, absent constitutional limitations to the contrary.
7. No applicable constitutional limitation on such appointment power exists in our constitution.
8. "The will of the people [] is exercised through the General Assembly, which functions as the arm of the electorate. An act of the people's elected representatives is thus an act of the people and is presumed valid unless it conflicts with the Constitution." Pope v. Easley, 354 N.C. at 546, 556 S.E.2d at 267 (emphasis in original).
9. A statute "must be upheld unless its unconstitutionality clearly, positively, and unmistakably appears beyond a reasonable doubt or it cannot be upheld on any reasonable ground." Rowlette v. State, 188 N.C.App. 712, 715, 656 S.E.2d 619, 621 (2008) (citations omitted).
10. The Plaintiff has made no evidentiary showing that the Advice and Consent provision will result in a violation of the separation of powers provision of ...

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