ROY A. COOPER, III, in his official capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA, Plaintiff,
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.
in the Court of Appeals 20 September 2017.
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,
Mullins Riley & Scarborough LLP, by D. Martin Warf, Noah
H. Huffstetler and Candace Friel, for defendant-appellees.
Consisting of: Elmore, Stroud, and Tyson, JJ.
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.
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.
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
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.
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
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."
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
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 ...