             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-367

                              Filed: 7 November 2017

Wake County, No. 16 CVS 15636

ROY A. COOPER, III, in his official capacity as GOVERNOR OF THE STATE OF
NORTH CAROLINA, Plaintiff,

            v.

PHILLIP 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, Defendants.


      Appeal by plaintiff from Memorandum of Order entered 17 March 2017 by a

three-judge panel comprised of Judges L. Todd Burke, Jesse B. Caldwell, III, and

Jeffery B. Foster, in Wake County Superior Court. Heard in the Court of Appeals 20

September 2017.


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

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


      PER CURIAM.


      Roy A. Cooper, III, in his official capacity as Governor of the State of North

Carolina, appeals from an order of a three-judge superior court panel, which granted

summary judgment in favor of Phillip E. Berger and Timothy K. Moore, in their

official capacities, respectively, as President Pro Tempore of the North Carolina
                                COOPER V. BERGER

                                 Opinion of the Court



Senate and as Speaker of the North Carolina House of Representatives (collectively,

“the General Assembly”). The order is affirmed.

                                  I. Background

       On 8 November 2016, a majority of North Carolina voters elected Roy A.

Cooper, III as Governor, who took his oath of office and whose term commenced on 1

January 2017. On 16 December 2016, the General Assembly duly enacted Session

Laws 2016-125 (Senate Bill 4) and 2016-126 (House Bill 17), which were signed into

law by the current Governor, Patrick L. McCrory, and became effective immediately.

       On 30 December 2016, Mr. Cooper, while continuing to serve as the duly

elected Attorney General of North Carolina, and while the sitting Governor remained

in office, filed a complaint in his capacity as “Governor-elect,” sought a temporary

restraining order, and a temporary injunction in the Wake County Superior Court,

and asserted the statutory amendments set forth in Session Law 2016-125 were

unconstitutional. On the same day, the trial court granted a temporary restraining

order, enjoining the challenged portions of Session Law 2016-125 before they went

into effect.

       The Chief Justice of the North Carolina Supreme Court convened and assigned

a three-judge superior court panel to hear the constitutional challenges to Session

Law 2016-125. On 6 January 2017, the panel preliminarily enjoined the challenged

portions of Session Law 2016-125, pending a final determination on the merits.



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      Governor Cooper filed an amendment to his complaint on 10 January 2017 and

raised constitutional challenges to Part III of Session Law 2016-126 (the “Advice and

Consent Amendment”) and the portions of Sections 7 and 8 of Part I of Session Law

2016-126 codified at N.C. Gen. Stat. § 126-5(d)(2c) (the “Exempt Positions

Amendments”). The superior court conducted a hearing on the merits of his claims

on 7 March 2017.

      On 17 March 2017, the trial court panel entered summary judgment in favor

of the General Assembly and rejected the Governor’s challenge to the Advice and

Consent Amendment set forth in Session Law 2016-126. The panel found “[a]dvice

and consent is an exclusive function of the legislative branch.” The panel further

found the executive appointees at issue “are the most important appointments a

Governor makes, as they are appointed to lead the State’s principal departments, said

departments having been created by act of the legislative branch.”

      The panel further found:

             6. A Legislature that has the authority to create executive
             agencies also has the authority to require legislative advice
             and consent to fill the leadership roles in those agencies,
             absent constitutional limitations to the contrary.

             7.   No applicable constitutional limitation on such
             appointment power exists in our constitution.

             8. “The will of the people [] is exercised through the
             General Assembly, which functions as the arm of the
             electorate. An act of the people’s elected representatives is
             thus an act of the people and is presumed valid unless it


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             conflicts with the Constitution.” Pope v. Easley, 354 N.C. at
             546, 556 S.E.2d at 267 (emphasis in original).

             9. A statute “must be upheld unless its unconstitutionality
             clearly, positively, and unmistakably appears beyond a
             reasonable doubt or it cannot be upheld on any reasonable
             ground.” Rowlette v. State, 188 N.C. App. 712, 715, 656
             S.E.2d 619, 621 (2008) (citations omitted).

             10. The Plaintiff has made no evidentiary showing that the
             Advice and Consent provision will result in a violation of
             the separation of powers provision of the North Carolina
             Constitution.

      The panel concluded although the Constitution is “silent as to advice and

consent of Statutory officers . . . Article III, Section 5(8) does not prohibit the General

Assembly from appointing statutory officers.” The panel further concluded Article

III, Section 5(8) does not, “beyond a reasonable doubt, restrict the General Assembly’s

advice and consent power as to statutory appointees;” it “permits advice and consent

at the highest level of constitutional office but is not a limitation of advice and

consent;” and it “does not limit the General Assembly to advice and consent on only

constitutional officers.” (Emphasis omitted).

      The panel determined our Constitution “does not prohibit a law establishing

senatorial advice and consent over the appointments of the Governor to the heads of

principal state departments,” and the Advice and Consent Amendment does not

violate the separation of powers clause of our Constitution.




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                                  Opinion of the Court



       The Governor appeals the entry of summary judgment in favor of the General

Assembly on the constitutionality of the Advice and Consent Amendment.

                                   II. Jurisdiction

       Jurisdiction lies from appeal of a final judgment of the superior court on the

claims asserted in the Governor’s amended complaint pursuant to N.C. Gen. Stat. §

7A-27(b)(1) (2015).

                                      III. Issues

       The Governor argues the trial court panel erred by granting summary

judgment in favor of the General Assembly and rejecting his challenge to the Advice

and Consent Amendment, and asserts the Advice and Consent Amendment violates

the separation of powers clause of the Constitution of North Carolina. N.C. Const.

art. I, § 6.

                               IV. Standard of Review

        “We review a trial court’s order granting or denying summary judgment de

novo. Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover

Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citations and

internal quotation marks omitted).




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                                   Opinion of the Court



      “We review constitutional questions de novo.” State ex. rel. McCrory v. Berger,

368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016) (citing Piedmont Triad Reg’l Water

Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001)).

      “In exercising de novo review, we presume that laws enacted by the General

Assembly are constitutional, and we will not declare a law invalid unless we

determine that it is unconstitutional beyond reasonable doubt.” Id. (citations

omitted).

             In other words, the constitutional violation must be plain
             and clear. To determine whether the violation is plain and
             clear, we look to the text of the constitution, the historical
             context in which the people of North Carolina adopted the
             applicable constitutional provision, and our precedents.

Id. (citations omitted).

      The parties conceded at oral argument that all cabinet secretaries and other

appointees nominated by the Governor, who are subject to the Advice and Consent

Amendment, were approved by the Senate.              As such, any asserted as-applied

constitutional challenge to the Advice and Consent Amendment is moot. See Town of

Beech Mtn. v. Genesis Wildlife Sanctuary, Inc., __ N.C. App. __, __, 786 S.E.2d 335,

347 (2016), aff’d, __ N.C. App. __, 799 S.E.2d 611 (2017) (“The basic distinction is that

an as-applied challenge represents a plaintiff’s protest against how a statute was

applied in the particular context in which plaintiff acted or proposed to act, while a




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facial challenge represents a plaintiff’s contention that a statute is incapable of

constitutional application in any context.”)

       “[A] facial challenge to the constitutionality of an act, as plaintiffs have

presented here, is the most difficult challenge to mount successfully.” Hart v. State,

368 N.C. 122, 131, 774 S.E.2d 281, 288 (2015) (citation omitted). “We seldom uphold

facial challenges because it is the role of the legislature, rather than this Court, to

balance disparate interests and find a workable compromise among them.” Id.

(citation omitted).

      The complaint was filed on 30 December 2016, prior to the date Governor

Cooper took his oath of office. The General Assembly has not challenged the trial

court’s finding that “[t]he Governor has standing to raise the[se] arguments” as a real

party in interest under N.C. Gen. Stat. § 1A-1, Rule 17 (2015). Presuming, arguendo,

the Governor possessed standing to bring suit, while he continued to serve as the

elected Attorney General, to challenge a duly enacted law of the General Assembly

prior to his oath as Governor on 1 January 2017, we review the Governor’s facial

constitutional challenge to the Advice and Consent Amendment.

                         V. Advice and Consent Amendment

      The Advice and Consent Amendment, as set forth in Session Law 2016-126,

amended N.C. Gen. Stat. § 143B-9.         This statute pertains to the Governor’s

appointments of the “head of each principal State department,” and states:



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             For each head of each principal State department covered
             by this subsection, the Governor shall notify the President
             of the Senate of the name of each person to be appointed,
             and the appointment shall be subject to senatorial advice
             and consent in conformance with Section 5(8) of Article III
             of the North Carolina Constitution unless (i) the senatorial
             advice and consent is expressly waived by an enactment of
             the General Assembly or (ii) a vacancy occurs when the
             General Assembly is not in regular session. Any person
             appointed to fill a vacancy when the General Assembly is
             not in regular session may serve without senatorial advice
             and consent for no longer than the earlier of the following:
             (1)    The date on which the Senate adopts a simple
             resolution that specifically disapproves the person
             appointed.
             (2)    The date on which the General Assembly shall
             adjourn pursuant to a joint resolution for a period longer
             than 30 days without the Senate adopting a simple
             resolution specifically approving the person appointed.

N.C. Sess. Law 2016-126.

      Article III, Section 5(8) of the Constitution of North Carolina provides:

“Appointments: 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.” N.C. Const. art. III, § 5(8) (emphasis supplied).

      The separation of powers clause of the Constitution of North Carolina declares

that “[t]he legislative, executive, and supreme judicial powers of the State

government shall be forever separate and distinct from each other.” N.C. Const. art.

I, § 6. The separation of powers clause is violated “when one branch exercises power

that the constitution vests exclusively in another branch” or “when the actions of one



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branch prevent another branch from performing its constitutional duties.” McCrory,

368 N.C. at 645, 781 S.E.2d at 256.

      The Governor argues the Advice and Consent Amendment permits the

Senate’s review of and consent to his appointments of persons to serve as his

immediate deputies, the cabinet secretaries. He asserts it violates the separation of

powers clause by interfering with the Governor’s faithful execution of the law and the

executive power to select deputies, who will promote and implement the Governor’s

policies the voters elected him to pursue. See N.C. Const. art. III, § 5(4) (conferring

upon the Governor the duty to “take care that the laws be faithfully executed”).

      The Governor further argues, presuming arguendo the General Assembly’s

power includes the power to exercise advice and consent over some executive officers,

“the exercise of such a power over the Governor’s cabinet secretaries goes too far.”

The Governor asserts the cabinet secretaries are not simply members of an executive

branch commission or board. Rather, he asserts they possess significant authority as

the most senior executive officials, who receive their appointments directly from the

Governor.

      Separation of powers issues are not analyzed within a vacuum or by an

absolute bright line within a working government. See United States v. Brainer, 691

F.2d 691, 697 (4th Cir. 1982). “The perception of the separation of three branches of

government as inviolable, however, is an ideal not only unattainable but undesirable.



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An overlap of powers constitutes a check and preserves the tripartite balance, as two

hundred years of constitutional commentary note.” In re Alamance Cty. Court

Facilities, 329 N.C. 84, 96, 405 S.E.2d 125, 131 (1991).

      Asserted separation of powers violations are analyzed on a case-by-case basis

with a flexible and pragmatic approach. See McCrory, 368 N.C. at 646, 781 S.E.2d at

257 (courts “cannot adopt a categorical rule that would resolve every separation of

powers challenge to the legislative appointment of officers”). Disagreements between

coordinate branches of government regarding overlaps and exercises of authority

have and will continue to occur. See Brainer, 691 F.2d at 697.

      The Governor relies heavily upon our Supreme Court’s decision in McCrory,

which involved a constitutional challenge to legislation which authorized the General

Assembly to appoint a majority of the voting members to the Oil and Gas Commission,

the Mining Commission, and the Coal Ash Management Commission. Id. at 636-37,

781 S.E.2d at 250-51.

      The Court first determined whether the appointments clause in Article III,

Section 5(8) prohibits the General Assembly from appointing statutory officers. Id. at

639, 781 S.E.2d at 252. Following a lengthy historical analysis of Article III, Section

5(8), the Court held that the appointments “clause gives the Governor the exclusive

authority to appoint constitutional officers whose appointments are not otherwise

provided for by the constitution. The appointments clause does not prohibit the



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General Assembly from appointing statutory officers to administrative commissions.”

Id. at 639-40, 781 S.E.2d at 252 (emphasis supplied).

      The Court in McCrory next determined whether the challenged legislation

violated the separation of powers clause by preventing the Governor from performing

his constitutional duties. Id. at 644, 781 S.E.2d at 255. The Court analyzed whether

the actions of the legislature “unreasonably disrupte[d] a core power of the executive.”

Id. at 645, 781 S.E.2d at 256. The Court determined the three commissions at issue

possessed “final executive authority,” and the “Governor must have enough control

over them to perform his constitutional duty [under Article III, Section 5(4)].” Id. at

646, 781 S.E.2d at 256.

      The Court held:

             [T]he challenged appointment provisions violate the
             separation of powers clause. When the General Assembly
             appoints executive officers that the Governor has little
             power to remove, it can appoint them essentially without
             the Governor’s influence. That leaves the Governor with
             little control over the views and priorities of the officers
             that the General Assembly appoints. When those officers
             form a majority on a commission that has the final say on
             how to execute the laws, the General Assembly, not the
             Governor, can exert most of the control over the executive
             policy that is implemented in any area of the law that the
             commission regulates. As a result, the Governor cannot
             take care that the laws are faithfully executed in that area.
             The separation of powers clause plainly and clearly does
             not allow the General Assembly to take this much control
             over the execution of the laws from the Governor and lodge
             it with itself.



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Id. at 647, 781 S.E.2d at 257.

      In McCrory, the legislation authorized the General Assembly, not the

Governor, to appoint the majority of members to three committees exercising “final

executive authority[.]” Id. at 646, 781 S.E.2d at 256. That issue is not present here.

      Session Law 2016-126 authorizes the Governor to appoint the cabinet

secretaries, “subject to senatorial advice and consent in conformance with Section

5(8) of Article III of the North Carolina Constitution[.]”      Under the holding in

McCrory, the Governor does not have the exclusive authority to appoint “statutory

officers to administrative commissions.” Id. at 639-40, 781 S.E.2d at 252 (emphasis

omitted).

      Our Supreme Court has also held:

             [T]he inhibition on the legislative power to appoint to office
             is removed and the inherent power of the Governor to
             appoint is restricted to constitutional offices and where the
             Constitution itself so provides. Accordingly, it has since
             been the accepted view that, in all offices created by
             statute, including these directorates and others of like
             nature, the power of appointment, either original or to fill
             vacancies, is subject to legislative provision as expressed in
             a valid enactment.

State ex rel. Salisbury v. Croom, 167 N.C. 223, 226, 83 S.E. 354, 355 (1914) (citing

Cherry v. Burns, 124 N.C. 761, 33 S.E. 136 (1899); Cunningham v. Sprinkle, 124 N.C.

638, 33 S.E. 138 (1899)).




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                                   Opinion of the Court



      “The Constitution of North Carolina is not a grant of power; rather, the power

remains with the people and is exercised through the General Assembly, which

functions as the arm of the electorate.” Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d

265, 267 (2001) (citing McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891-

92 (1961)). “An act of the people’s elected representatives is thus an act of the people

and is presumed valid unless it conflicts with the Constitution.” Id. (emphasis

supplied) (citing McIntyre, 254 N.C. at 515, 119 S.E.2d at 891-92); see also Lassiter v.

Northampton Cty. Bd. of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958),

aff’d, 360 U.S. 45, 3 L. Ed. 2d 1072 (1959)).

                                    VI. Conclusion

      Article III, Section 5(8) of our Constitution confers upon the Governor the

exclusive authority to appoint constitutional officers subject to limitations in Article

III, Section 5(8). See McCrory, 368 N.C. at 639-40, 781 S.E.2d at 252. The three-judge

superior court panel correctly held the Governor did not meet the high burden to show

beyond a reasonable doubt the General Assembly is without authority to require

senatorial confirmation of the Governor’s appointed statutory officers.             The

Governor’s facial constitutional challenge to the amendment to the statute fails.

      The three-judge superior court also correctly held the Governor failed to show

beyond a reasonable doubt that the Advice and Consent Amendment violates the




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separation of powers clause of the Constitution of North Carolina by hindering the

faithful execution of his duties as Governor.

      While a provision of the Constitution mandates separation of powers between

the branches, N.C. Const. art. I, § 6, another provision also reserves to the Senate

“the advice and consent” of the Governor’s appointments of constitutional officers.

N.C. Const. art III, § 5(8). If separation of powers does not prohibit or constrain the

Senate from confirming officers created by the Constitution, separation of powers

does not otherwise prohibit “advice and consent” being applied to gubernatorial

appointees over agencies the General Assembly created, and which agencies can be

amended or repealed by statute. “[A] constitution cannot violate itself.” Leandro v.

State, 346 N.C. 336, 352, 488 S.E.2d 249, 258 (1997).

      “The Constitution of North Carolina is not a grant of power; rather, the power

remains with the people and is exercised through the General Assembly, which

functions as the arm of the electorate.” Pope, 354 N.C. at 546, 556 S.E.2d at 267.

      The order appealed from is affirmed. It is so ordered.

      AFFIRMED.

      Panel Consisting of: Elmore, Stroud, and Tyson, JJ.




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