370 N.C. 392
N.C.2018Background
- In Nov. 2016 Roy Cooper was elected Governor. In Dec. 2016 the General Assembly enacted laws merging the State Board of Elections and the State Ethics Commission into a new Bipartisan State Board of Elections and Ethics Enforcement and appointed existing ethics commissioners to that Board.
- Session Law 2017-6 (enacted Apr. 2017 over the Governor's veto) prescribed an 8‑member bipartisan board: four appointees must be from each of the two largest parties and the Governor must appoint from party‑chair submitted lists; members removable by the Governor only for cause; certain leadership and an Executive Director selection scheme delayed or constrained.
- Governor Cooper sued, seeking injunctive relief, alleging the statute violated the separation‑of‑powers clause by depriving the Governor of sufficient appointment, supervision, and removal control to "take care that the laws be faithfully executed." A three‑judge superior court panel initially dismissed for lack of jurisdiction; interlocutory procedural steps followed and the case came to the North Carolina Supreme Court.
- The Supreme Court held the claim justiciable and that the Governor has standing to bring a separation‑of‑powers challenge to statutes that impair his constitutional duty to execute the laws.
- On the merits the Court applied the functional test from State ex rel. McCrory v. Berger and concluded that, taken together, the appointment, removal, and staffing provisions of Session Law 2017‑6 facially and beyond a reasonable doubt interfere with the Governor’s Article III, §5(4) executive authority.
Issues
| Issue | Plaintiff's Argument (Cooper) | Defendant's Argument (Legislative leadership) | Held |
|---|---|---|---|
| Justiciability / political question | Court may and should decide separation‑of‑powers disputes; this is a constitutional question, not a political question | Creation/structure of agencies is textually committed to Legislature; this is a political question beyond judicial review | Court: Justiciable — Baker/McCrory framework allows judicial resolution of conflicts between constitutional provisions |
| Standing | Governor has a personal stake because the statute impairs his duty to "take care that the laws be faithfully executed" | Claims are speculative or traceable to prior statutes; Governor lacks a cognizable injury | Court: Governor has standing to challenge statutes that impair his constitutional executive authority |
| Facial constitutional challenge — appointments/removal & Board composition | Statute prevents Governor from controlling views/priorities of officers (appointments from opposing‑party lists, for‑cause removal, delayed ED appointment) so violates separation of powers under McCrory | Statute is a lawful exercise of legislative authority to structure agencies; independence and bipartisan structure are legitimate policy choices | Court: Sections governing Board composition and related constraints, considered together, violate Article III, §5(4) — facially invalid because they leave Governor with little control over views/priorities |
| Executive Director appointment & related transition provisions | Creation of a new executive office and legislative selection/extension of ED constrains Governor's control of chief elections official | This is an extension of an existing term and administrative detail; Board will ultimately appoint ED | Court: Declines to decide ED provisions separately because invalidation of Board composition is dispositive; notes ED provisions could be problematic but remands for further proceedings |
Key Cases Cited
- State ex rel. McCrory v. Berger, 368 N.C. 633 (N.C. 2016) (articulates functional "enough control" test for separation‑of‑powers challenges involving executive agencies)
- Bacon v. Lee, 353 N.C. 696 (N.C. 2001) (political question doctrine and limits on judicial review for matters textually committed to other branches)
- Baker v. Carr, 369 U.S. 186 (U.S. 1962) (political question factors and framework for justiciability analysis)
- State ex rel. Wallace v. Bone, 304 N.C. 591 (N.C. 1981) (legislative appointment of legislators to administrative boards can violate separation of powers)
- Hart v. State, 368 N.C. 122 (N.C. 2015) (presumption of constitutionality; facial challenges are difficult)
- Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640 (N.C. 2008) (standing principles for North Carolina constitutional claims)
- Winslow v. Morton, 118 N.C. 486 (N.C. 1896) (historical discussion of Governor's duty to execute laws in the face of legislative regulation)