Outgoing Governor Roy Cooper and his successor, Governor-Elect Josh Stein, are seeking an injunction to prohibit Stein from naming a new State Highway Patrol commander under a new state legislation. Cooper and Stein filed documents on Tuesday to halt the transfer while their case against state legislative leaders continues.
Cooper and Stein have also asked for a three-judge Superior Court panel to handle their Stein v. Moore lawsuit.
The current and future governors submitted a revised version of a suit first disclosed on December 12. It challenges sections of Senate Bill 382 that grant the General Assembly control of the patrol commander job until 2030. The suit labels alter the “legislative commander” provision.
“The Amended Complaint alleges that the Legislative Commander and Exempt Position Provisions: a. Violate the separation of powers clause of the Constitution by preventing the Governor from carrying out his constitutional duties to faithfully to execute the laws; and b.
Violate the exclusive privileges and equal protection clauses of the North Carolina Constitution,” the lawyers who represented Cooper and Stein wrote.
“Without a preliminary injunction, the Legislative Commander Provision will require that the current Commander of the State Highway Patrol be permitted to remain in his position until July 1, 2030, regardless of performance or circumstances; and, without clear at-will removal authority as a result of the Exempt Positions Provision, the current Commander of the State Highway Patrol will be effectively accountable to no one, including the Governor, who bears ultimate responsibility.
“If the Legislative Commander and Exempt Position Provisions are not enjoined to restore a clear chain of command and allow the Governor to supervise the Commander as he carries out the core executive functions of executing and enforcing the laws, it will cause irreparable harm to the people of North Carolina and the Governor whom they elected to carry out those duties on their behalf,” the lawyers who represented Cooper and Stein wrote.
Highway Patrol amendments are outlined in SB 382, which was signed into law on December 11 after state lawmakers decided to overturn Cooper’s veto.
Stein and Cooper are Democrats. The Republican-led General Assembly passed the bill on party lines in the state House and Senate.
Among other modifications to the state government structure, SB 382 removes the State Highway Patrol from the governor’s purview.
“Today, Governor Cooper and I have taken legal action to stop the legislature’s unconstitutional and dangerous power grab,” Stein stated in a press statement on December 12.
“This law jeopardizes public safety, disrupts the chain of command during a crisis, and undermines voter intent. “Our citizens deserve better than a power-hungry legislature that prioritizes political games over public safety.”
“Just days after the voters overwhelmingly chose Governor-Elect Stein to be their chief executive for the next four years, the leadership of the North Carolina General Assembly used a purported hurricane relief bill to curtail, in significant ways, core executive and law enforcement responsibilities that, under our Constitution, pass to Governor Stein on January 1, 2025,” lawyers for Cooper and Stein wrote in the complaint filed in Wake County Superior Court.
Stein v. Moore lists outgoing House Speaker Tim Moore, Senate Leader Phil Berger, and SHP Commander Freddy Johnson as defendants.
Stein and Cooper focus on the 132-page SB 382 provision that reorganizes the Highway Patrol “as a principal, cabinet-level department and legislatively appoints the Commander of the Patrol — now the equivalent of a Cabinet Secretary to the Governor, but not accountable to the Governor — to serve until July 1, 2030.”
The commander takes over the functions previously given to the state Department of Public Safety, which is managed by a Cooper appointee. These include state law enforcement and emergency services, as well as criminal prevention and reaction to natural and man-made calamities.
Johnson, who has been patrol commander since Cooper appointed him in April 2021, is required by law to serve until June 2030, except “death, resignation, or physical or mental incapacity.”
“Incredibly, Senate Bill 382 prohibits the Governor or anyone else from removing the legislatively appointed Commander for any reason — even if he were to commit serious criminal misconduct,” the attorneys for Cooper and Stein claimed.
“Moreover, Senate Bill 382 threatens the safety of North Carolinians by eliminating the Governor’s powers of supervision and removal over the Commander,” according to the complaint. “The legislatively-appointed Commander may feel empowered to delay, modify, or flatly reject the direction that he receives from the Governor.”
“This fracturing of the chain-of-command for state law enforcement in North Carolina plainly and clearly violates constitutional provisions ultimately intended to protect public safety and ensure accountability to the people,” the attorneys representing Cooper and Stein said.
“In the moments of crisis that periodically face this State and its Governor, a clear chain of command ultimately leading to State’s elected chief executive is vital to protect public safety,” according to the complaint.
“Breaking that chain profoundly weakens the State’s ability to respond effectively and efficiently to emergencies in a clear and coordinated fashion, whether the crisis at issue is civil unrest, a mass shooting event, an ice storm, a hurricane, or some other regional or statewide emergency.”
The governor and governor-elect “seek to safeguard the people of North Carolina from threats to their public safety and to the people’s assignment of core executive responsibilities to their chief executive,” according to their lawyers.
Cooper and Stein dismiss the “legislative commander provision” because it is “direct infringement on the Governor’s law enforcement powers in plain violation of our Constitution.”