- Outgoing Gov. Roy Cooper and his successor, Governor-elect Josh Stein, seek an injunction to block a new state law shifting control over the State Highway Patrol commaneder.
- The targeted provision of Senate Bill 382 would prevent Stein from appointing a new commander. Current commander Freddy Johnson would remain in the job through 2030.
- Cooper and Stein are asking for a three-judge Superior Court panel to oversee their lawsuit, Stein v. Moore.
Outgoing Gov. Roy Cooper and his successor, Governor-elect Josh Stein, are seeking an injunction to block a new state law that would prevent Stein from appointing a new State Highway Patrol commander. Cooper and Stein filed paperwork Tuesday to stop the shift while their lawsuit proceeds against state legislative leaders.
Cooper and Stein are also requesting that a three-judge Superior Court panel oversee their Stein v. Moore lawsuit.
The current and future governor filed an amended version of a suit originally announced on Dec. 12. It challenges provisions of Senate Bill 382 that give the General Assembly control over the patrol commander position through 2030. The suit labels that change 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,” Cooper and Stein’s lawyers 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 under our Constitution for faithfully executing and enforcing our laws,” the court filing continued.
“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,” Cooper and Stein’s lawyers wrote.
Highway Patrol changes are spelled out in SB 382, enacted into law on Dec. 11 after state lawmakers voted to override Cooper’s veto.
Stein and Cooper are Democrats. The Republican-led General Assembly approved the measure on party-line votes in the state House and Senate.
Among other changes to state government structure, SB 382 removes the State Highway Patrol from the governor’s oversight.
“Today, Governor Cooper and I have taken legal action to stop the legislature’s unconstitutional and dangerous power grab,” Stein said in a news release on Dec. 12. “This law threatens public safety, fractures the chain of command during a crisis, and thwarts the will of voters. Our people deserve better than a power-hungry legislature that puts political games ahead of 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 representing Cooper and Stein wrote in the complaint filed in Wake County Superior Court.
Stein v. Moore names outgoing House Speaker Tim Moore, Senate Leader Phil Berger, and SHP Commander Freddy Johnson as defendants.
Stein and Cooper target the portion of the 132-page SB 382 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 duties that had been assigned to the state Department of Public Safety, led by a Cooper appointee. These include state law enforcement and emergency services and responses to crime and natural and manmade disasters.
The law specifies that Johnson, patrol commander since an appointment from Cooper in April 2021, would continue serving through June 2030 barring “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,” Cooper and Stein’s lawyers wrote.
“Moreover, Senate Bill 382 threatens the safety of North Carolinians by eliminating the Governor’s powers of supervision and removal over the Commander,” the complaint continued. “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,” Cooper and Stein’s lawyers argued.
“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,” the complaint added. “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 label the “legislative commander provision” as a “direct infringement on the Governor’s law enforcement powers in plain violation of our Constitution.”