Three-judge panel named in Stein’s highway patrol commander suit

North Carolina Supreme Court Chief Justice Paul Newby has named two Republicans and one Democrat to serve on the three-judge panel that will hear one of Gov. Josh Stein’s ongoing lawsuits against top legislative leaders.

Stein challenges a piece of a new state law enacted in December that blocks the governor from appointing a new commander of the State Highway Patrol.

The governor is a Democrat. Newby and top state lawmakers are Republicans.

Superior Court Judges Stuart Albright, Justin Davis, and Matthew Houston will consider Stein’s case. Albright is a Democrat based in Guilford County. Davis is a Republican based in Gaston County. Houston, also a Republican, joined the Superior Court in 2024 based on a legislative appointment. Newby appointed Houston in February to serve on the state’s Business Court.

The case involving the highway patrol appointment is one of four active lawsuits pitting Stein against Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell.

Stein secured a victory earlier this week in one of the other cases. A three-judge panel ruled, 2-1, that a portion of Senate Bill 382 changing state elections oversight was unconstitutional. Lawmakers had voted to shift state elections board appointments to State Auditor Dave Boliek, a Republican. Boliek and legislative leaders have announced plans to appeal that ruling.

A third lawsuit involves a portion of SB 382 that would transfer one of Stein’s state Utilities Commission appointments to state Treasurer Brad Briner, a Republican. Stein is seeking an injunction to block that change. The same suit challenges a section of SB 382 that limits Stein’s choices in making appointments to the state Supreme Court and Court of Appeals. The governor would be forced to fill an appellate court vacancy with a judge or justice from the same political party as the departing jurist.

A court order Thursday transferred that case to a three-judge panel. That panel has not been named.

A fourth lawsuit at the North Carolina Court of Appeals involves disputes over appointments to seven state boards and commissions.

Then-Gov. Roy Cooper and Stein filed paperwork on Dec. 31 seeking an injunction in the highway patrol commander case. The outgoing and incoming governor also filed an amended version of a suit originally announced on Dec. 12. It challenges provisions of SB 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 and Cooper targeted 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.”

“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.

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