Cooper v. Berger
809 S.E.2d 98, 370 N.C. 392 (2018)
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Rule of Law:
A state law structuring an executive branch agency violates the separation of powers clause of the North Carolina Constitution if, by limiting the Governor's ability to appoint, supervise, and remove its members, it deprives the Governor of sufficient control to faithfully execute the laws.
Facts:
- On November 8, 2016, Roy A. Cooper, III, was elected Governor of North Carolina.
- On April 25, 2017, the North Carolina General Assembly enacted Session Law 2017-6 over Governor Cooper's veto.
- The law abolished the existing State Board of Elections and the State Ethics Commission.
- The law created a new, independent eight-member Bipartisan State Board of Elections and Ethics Enforcement.
- It required the Governor to appoint four members from a list of nominees submitted by the state party chair of the political party with the highest number of registered affiliates.
- It also required the Governor to appoint the other four members from a list of nominees submitted by the state party chair of the political party with the second-highest number of registered affiliates.
- The law stipulated that an affirmative vote of at least five of the eight members was required for the Board to take any action.
- The law also appointed the Executive Director of the former State Board of Elections to serve as the Executive Director of the new Bipartisan Board until at least May 2019.
Procedural Posture:
- Governor Cooper filed a complaint in Wake County Superior Court seeking to enjoin the implementation of Session Law 2017-6.
- A three-judge panel was convened and entered a temporary restraining order (TRO) enjoining enforcement of the law.
- The legislative leadership filed a motion to dismiss, arguing the case presented a non-justiciable political question and that the Governor lacked standing.
- The three-judge panel granted the motion to dismiss for lack of subject matter jurisdiction, finding the issue to be a non-justiciable political question.
- Governor Cooper noted an appeal to the Court of Appeals.
- The North Carolina Supreme Court granted the Governor's petition for discretionary review prior to a decision by the Court of Appeals.
- The Supreme Court certified the case back to the three-judge panel with instructions to address the merits of the Governor's claims.
- The panel issued a new order, again finding it lacked jurisdiction but also holding, on the merits, that the law was not facially unconstitutional.
- The case then returned to the North Carolina Supreme Court for a final decision on the appeal.
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Issue:
Does Session Law 2017-6, which creates an evenly divided, bipartisan board to oversee elections and ethics and requires the Governor to appoint members from lists submitted by political party chairs, impermissibly interfere with the Governor's constitutional duty to "take care that the laws be faithfully executed," thereby violating the separation of powers clause of the North Carolina Constitution?
Opinions:
Majority - Justice Ervin
Yes. Session Law 2017-6 impermissibly interferes with the Governor's constitutional duty to faithfully execute the laws and therefore violates the separation of powers clause. Applying the functional test from State ex rel. McCrory v. Berger, the Governor must have 'enough control' over executive branch agencies, which depends on the ability to appoint, supervise, and remove officers. The combined effect of requiring the Governor to appoint half the Board's members from a list submitted by the opposing party's leadership, limiting his removal power to 'for cause' dismissals, and having a legislatively-appointed Executive Director leaves the Governor with 'little control over the views and priorities' of the Board. This structure unconstitutionally prevents the Governor from performing his core function under Article III, Section 5(4) of the North Carolina Constitution. The court also held that the case was justiciable and did not present a non-justiciable political question, as it required the interpretation of competing constitutional provisions.
Dissenting - Chief Justice Martin
No. Session Law 2017-6 provides the Governor with 'enough control' over the Bipartisan State Board and does not violate the separation of powers. The majority misinterprets McCrory, which only prevents the legislature from giving the Governor a minority of appointees. Here, the Governor appoints half the members, not a minority, and his appointees can effectively veto any action, since five votes are required for the board to act. This structure, combined with the Governor's for-cause removal power, is sufficient. The majority's decision improperly constitutionalizes a partisan makeup for a board that should be bipartisan and neutral to ensure fairness in elections and ethics, undermining public confidence.
Dissenting - Justice Newby
No. The constitutionality of Session Law 2017-6 is a non-justiciable political question because the North Carolina Constitution textually commits the power to structure and alter administrative agencies to the General Assembly. Article III, Section 5(10) expressly grants the legislature the authority to 'prescribe the functions, powers, and duties of the administrative departments and agencies.' By intervening in what is essentially a policy dispute between the political branches, the court itself violates the separation of powers. The majority invents a new constitutional power for the Governor to implement personal policy preferences over duly enacted laws, which is not supported by the constitution's text.
Analysis:
This decision significantly strengthens the power of the North Carolina Governor relative to the General Assembly in structuring executive branch agencies. It expands upon the 'enough control' test from McCrory, establishing that separation of powers can be violated even when the Governor technically appoints all members if the appointment process is structured to deny him effective control over a majority. This precedent makes it more difficult for the legislature to create independent, bipartisan commissions designed to be insulated from the Governor's direct political influence, particularly in sensitive areas like election administration. The ruling will likely impact future legislative efforts to structure executive boards and will be a key precedent in ongoing power disputes between the executive and legislative branches.
