Cooper v. Berger

371 N.C. 799

822 S.E.2d 286

Roy A. COOPER, III, in His Official Capacity as Governor of the State of North Carolina

v.Philip 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

No. 409PA17

Supreme Court of North Carolina.

Filed December 21, 2018

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F.E. Smith, Jim W. Phillips, Jr., Greensboro, and Eric M. David, Raleigh, for plaintiff-appellant.

Nelson Mullins Riley & Scarborough LLP, by D. Martin Warf, Noah H. Huffstetler, III, Raleigh, and Candace Friel, Winston-Salem, for defendant-appellees.

MARTIN, Chief Justice.

The Governor is our state’s chief executive. He or she bears the ultimate responsibility of ensuring that our laws are properly enforced. See State ex rel. McCrory v. Berger , 368 N.C. 633, 635, 781 S.E.2d 248, 250 (2016). Indeed, the Constitution of North Carolina enshrines this executive duty: "The Governor shall take care that the laws be faithfully executed." N.C. Const. art. III, § 5 (4).

But the Governor is not alone in this task. Our state constitution establishes nine other offices in the executive branch. See id. art. III, §§ 2, 7. These offices are elected and consist of the Lieutenant Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commissioner of Insurance. Id. Collectively, these ten offices are known as the Council of State. See id. art. III, § 8.¹

To further assist the executive branch in fulfilling its purpose, our constitution requires the General Assembly to "prescribe the functions, powers, and duties of the administrative departments and agencies of the State." Id. art. III, § 5(10). The heads of the administrative departments that are not headed by members of the Council of State are appointed to their posts rather than being elected by the people. See N.C.G.S. § 143B-9(a) (2017). These appointed officers make up the membership of the Governor’s Cabinet. See, e.g. , id. § 126-6.3 (2017 & Supp. 2018) (referring to the administrative departments created by Chapter 143B of the North Carolina General Statutes as "Cabinet agencies"); id. § 143-745(a)(1) (2017) (defining "Agency head" as "the Governor, a Council of State member, a cabinet secretary , ... and other independent appointed officers with authority over a State agency" (emphasis added) ). "[T]o perform his constitutional duty," the Governor must have "enough control" over the members of his Cabinet to take care that the laws be faithfully executed. McCrory , 368 N.C. at 646, 781 S.E.2d at 256.

In this case, plaintiff Roy A. Cooper, III, the Governor of North Carolina, challenges the appointments provision of N.C.G.S. § 143B-9(a), which grants the North Carolina Senate the power to confirm the people that he nominates to serve in his Cabinet. Plaintiff alleges that senatorial confirmation undermines his control over the views and priorities of those who serve in his administration and violates the separation of powers that our constitution guarantees. See N.C. Const. art. I, § 6.

We hold that senatorial confirmation of the members of the Governor’s Cabinet does not violate the separation of powers clause when, as is the case here, the Governor retains the power to nominate them, has strong supervisory authority over them, and has the power to remove them at will. The Governor’s power to nominate is significant, and the ultimate appointee will be a person that he alone has chosen, subject only to an up-or-down vote by the Senate. The Governor’s supervisory and removal powers, moreover, ensure that the Governor retains ample post-appointment control over how his Cabinet members perform their duties. As a result, subsection 143B-9(a)’s senatorial confirmation requirement leaves the Governor with enough control to take care that the laws be faithfully executed, and therefore does not violate the separation of powers clause.

I

N.C.G.S. § 143A-11 creates ten principal administrative departments headed by the members of the Council of State—sometimes called the "Council of State agencies." See, e.g. , N.C.G.S. § 126-6.3 ; see also N.C. Const. art. III, §§ 2, 7, 8. Supplementing these departments are eleven additional principal administrative departments named in N.C.G.S. § 143B-6 —the Community Colleges System Office and the Departments of Natural and Cultural Resources, Health and Human Services, Revenue, Public Safety, Environmental Quality, Transportation, Administration, Commerce, Information Technology, and Military and Veterans Affairs. These eleven departments are sometimes called "Cabinet agencies." See, e.g. , id. § 126-6.3. The constitution does not directly mention any of these departments; they are statutory creations.

The heads of these departments—i.e., the members of the Governor’s Cabinet—are statutory officers; they hold offices created by statute. See, e.g. , id. § 143B-52 (2017) (naming the Secretary of Natural and Cultural Resources as the head of the corresponding department); id. § 143B-139 (2017) (doing likewise for the Secretary of Health and Human Services). These officers are appointed according to a process defined by statute. That statute currently grants the Governor the power to "appoint[ ]" individuals to fill each Cabinet position, "subject to senatorial advice and consent in conformance with Section 5(8) of Article III of the North Carolina Constitution [i.e., the constitution’s appointments clause]." Id. § 143B-9(a) ; see also N.C. Const. art. III, § 5 (8) ("The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.").

Other provisions of Chapter 143B address the Governor’s ability to supervise and remove Cabinet members. N.C.G.S. § 143B-4 reiterates the Governor’s role as "the Chief Executive Officer of the State." See also N.C. Const. art III, § 1 (vesting the executive power of the State in the Governor). That same statute gives the Governor final authority to "formulat[e] and administer[ ] the policies of the executive branch." N.C.G.S. § 143B-4 (2017). In addition, Cabinet members must provide the Governor with extensive information about the work of their respective departments. For example, Cabinet members must "submit to the Governor an annual plan of work" and "an annual report covering programs and activities for each fiscal year." Id. § 143B-10(h) (2017). Cabinet members must also "develop and report to the Governor legislative, budgetary, and administrative programs to accomplish" long-term policy goals. Id. § 143B-10(i) (2017). If the Governor wishes to remove any of the members of his Cabinet, he or she may do so at any time, for any reason. See id. § 143B-9(a).

Plaintiff alleges that the appointments process for Cabinet members set forth in N.C.G.S. § 143B-9(a) is unconstitutional. On 30 December 2016, plaintiff filed a complaint in Superior Court, Wake County, challenging the constitutionality of another act of the General Assembly.² On 10 January 2017, plaintiff amended his complaint to allege that a separate act requiring senatorial confirmation of his Cabinet members violates the appointments clause and the separation of powers clause of our state constitution. See N.C. Const. art. I, § 6 (separation of powers clause); id. art. III, § 5(8) (appointments clause). Plaintiff sought a declaration that this aspect of subsection 143B-9(a)’s appointments process is unconstitutional and a permanent injunction barring the operation of section 143B-9 as written.

A divided three-judge panel of the superior court determined that the appointments process in subsection 143B-9(a) does not violate the constitution and granted summary judgment to defendants. Plaintiff appealed this decision to the Court of Appeals. On 7 November 2017, the Court of Appeals issued a per curiam opinion affirming the trial court’s decision. Cooper v. Berger , ––– N.C. App. ––––, ––––, 807 S.E.2d 176, 181-82 (2017) (per curiam). Plaintiff then filed a notice of appeal of a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and also petitioned this Court for discretionary review of the same constitutional question pursuant to N.C.G.S. § 7A-31. We retained plaintiff’s notice of appeal and allowed plaintiff’s petition.

II

North Carolina courts have the power and the duty to determine whether challenged acts of the General Assembly violate the constitution. Bayard v. Singleton , 1 N.C. (Mart.) 5, 6-7 (1787). This Court interprets the provisions of the Constitution of North Carolina with finality. E.g. , McCrory , 368 N.C. at 638, 781 S.E.2d at 252 ; Hart v. State , 368 N.C. 122, 130, 774 S.E.2d 281, 287 (2015). We review constitutional questions de novo. Piedmont Triad Reg’l Water Auth. v. Sumner Hills, Inc. , 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).

Plaintiff alleges that the Senate’s "authority to approve, or disapprove, the persons selected by the Governor to serve" as Cabinet members pursuant to subsection 143B-9(a) "improperly encroaches upon the Governor’s constitutional authority." In his own words, plaintiff’s challenge pertains to "the structure created by" subsection 143B-9(a) and to the degree of control that subsection 143B-9(a) allows the Senate to exercise, "not [to] whether the [Senate] actually exerted that control." Cf. McCrory , 368 N.C. at 647, 781 S.E.2d at 257 (indicating that, when legislative involvement in the appointment of executive officers is at issue, the separation of powers clause requires this Court to evaluate how much control the legislation in question "allows the General Assembly to exert over the execution of the laws" (emphasis added) ). Plaintiff’s challenge thus amounts to a facial challenge to the constitutionality of N.C.G.S. § 143B-9(...