Cooper v. BergerÂ
256 N.C. App. 190
| N.C. Ct. App. | 2017Background
- Roy A. Cooper III was elected Governor on Nov. 8, 2016; he filed suit on Dec. 30, 2016 (as Governor-elect) challenging statutory changes enacted Dec. 16, 2016 (Session Laws 2016-125 and 2016-126).
- Session Law 2016-126 amended N.C. Gen. Stat. § 143B-9 to subject the Governor’s appointments of heads of principal State departments (cabinet secretaries) to senatorial "advice and consent."
- A three-judge Wake County superior court panel preliminarily enjoined the challenged provisions; after briefing and a March 7, 2017 hearing the panel granted summary judgment for the General Assembly.
- The superior court held (inter alia) that advice-and-consent is a legislative function, statutory agency heads are statutory (not constitutional) officers, and the Governor failed to show the amendment violated separation of powers beyond a reasonable doubt.
- Cooper appealed; the Court of Appeals affirmed the trial court’s summary judgment, rejecting the Governor’s facial challenge to the Advice and Consent Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Session Law 2016-126 (advice and consent for cabinet secretaries) is forbidden by Article III, § 5(8) or violates separation of powers | Cooper: Advice-and-consent over cabinet secretaries infringes executive duty to "take care" and to select deputies; it prevents faithful execution of the laws | General Assembly: Article III, § 5(8) does not bar legislative advice-and-consent over statutory officers; statutes creating offices are presumptively valid and subject to legislative regulation | Court: Affirmed — governor did not meet high burden to show unconstitutionality beyond a reasonable doubt; advice-and-consent for statutory cabinet posts is permissible and does not plainly violate separation of powers |
Key Cases Cited
- State ex rel. McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016) (appointments clause does not prohibit legislative appointment of statutory officers; separation-of-powers violation when legislature controls majority of decisionmakers with final executive authority)
- Pope v. Easley, 354 N.C. 544, 556 S.E.2d 265 (2001) (legislative acts are presumed valid as acts of the people absent constitutional conflict)
- State ex rel. Salisbury v. Croom, 167 N.C. 223, 83 S.E. 354 (1914) (offices created by statute are subject to legislative provision regarding appointments)
- Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (constitutional text must be read coherently; "a constitution cannot violate itself")