Judges rule for legislative leaders, against Stein, in Highway Patrol commander dispute

A unanimous three-judge panel has ruled in favor of state legislative leaders and against Gov. Josh Stein in a dispute over appointment of the State Highway Patrol commander.

The panel of two Republicans and one Democrat issued its decision Monday afternoon, roughly five hours after hearing oral arguments in the case.

Stein, a Democrat, was the plaintiff in the case. He sued Republican legislative leaders and current patrol commander Freddy Johnson.

“Plaintiff has failed to demonstrate, beyond a reasonable doubt, that the General Assembly’s act is unconstitutional,” the judges wrote in the three-page order. “Defendants are entitled to judgment as a matter of law on all of Plaintiff’s claims, and Plaintiff is not entitled to judgment as a matter of law on any of Plaintiff’s claims.”

Superior Court Judges Stuart Albright, Justin Davis, and Matthew Houston heard roughly 70 minutes of arguments Monday morning.

Senate Bill 382, approved over then-Gov. Roy Cooper’s veto last December, removes the Highway Patrol from the state Department of Public Safety and elevates the patrol to Cabinet-level status. The law calls for Stein to appoint Johnson to a new five-year term starting July 1. The law does not allow Stein to choose another candidate or to remove Johnson from the post.

Stein accepted the departmental reorganization, but he challenged the legislature’s decision to dictate his choice of patrol commander. His lawyers argued Monday that SB 382 strips the governor’s constitutional powers.

“This case is about control of the governor’s cabinet — plain and simple,” lawyer Eric Fletcher argued on Stein’s behalf.

It’s “unprecedented” for the General Assembly to dictate a member of the governor’s cabinet, Fletcher added. The decision violates state government’s constitutional guarantee of separation of powers. The General Assembly “gutted” the governor’s authority and “obliterated” the structural checks and balances between the political branches of government, Fletcher argued.

Johnson is “insulated from any meaningful control” by the governor, thanks to a “unique, completely unremovable, 5 ½-year term” spelled out in SB 382, Fletcher said.

Lawyers representing Republican legislative leaders responded that Stein’s lawsuit should be dismissed on the grounds that the governor has offered no evidence that he wants to remove Johnson from his post. Without an actual dispute about removing Johnson, the court would be issuing an advisory opinion, lawyer Craig Schauer argued.

“We’re talking about a theoretical right to removal,” Schauer said.

If the three-judge panel looks at the merits of Stein’s arguments, the governor’s case also fails, Schauer added.

“He cannot point to a constitutional provision that empowers the governor to remove a Cabinet member,” Schauer said.

Lawmakers’ legal team also reminded judges that the governor continues to maintain the ability to remove Highway Patrol members.

Lawyer Ellis Boyle, representing Johnson, explained that the current situation  with the Highway Patrol appointment is not unique. Stein cannot appoint a new SBI director, whose term runs through 2032. The governor cannot appoint a new state controller, whose term extends into 2029. Stein is “not running to the courts” to challenge either of those appointments.

Boyle urged the judges to maintain the status quo during the course of the legal dispute. That status quo means allowing Johnson to serve unless a final court ruling says otherwise.

“You can’t unring the bell,” Boyle said. Allowing the governor to remove Johnson would cause “lasting detrimental harm” if a higher court later reinstates the commander.

“There’s no crisis here,” Boyle added. Stein and Johnson are “not at odds with each other.”

Albright noted the “time-sensitive” nature of the case when pledging a decision from the three-judge panel “no later than” Tuesday. The decision was time-stamped in court records at 4:17 p.m., roughly five hours after the judges concluded the hearing.

Summary judgment for the defendants ends the dispute without a trial.

“Legislative Defendants claim the right to appoint a member of the Governor’s Cabinet and to make that member unremovable for his full term,” Stein’s lawyers wrote in a court filing on June 9. “Our Constitution allows no such thing. ‘Cabinet members play … a critical role in executive branch functions’; accordingly, ‘the Governor’s control over them must be significant.’ Senate Bill 382 leaves the Governor with very little control over a Cabinet agency for at least five-and-a-half-years. For that reason, it is unconstitutional.”

Johnson has filed paperwork supporting the provisions in SB 382. “His brief argues that ‘Senate Bill 382 affords the Governor ample control over the Commander.’ But the very existence of the Commander’s request for judgment against the Governor betrays his argument,” Stein’s lawyers wrote.

“If the Governor had any meaningful control over the Commander, the Commander would not have filed a brief adopting arguments that the Governor believes are inconsistent with the Constitution,” the governor’s court filing continued. “Without this Court’s intervention, Legislative Defendants will not only be responsible for making the state’s criminal law and organizing the executive branch, they will also be in direct control of a Cabinet agency charged with statewide enforcement of the criminal law. Our Constitution’s framers included an express Separation of Powers clause to avoid this concern.”

Cooper appointed Johnson to lead the patrol in April 2021. Cooper and Stein are Democrats. State legislative leaders are Republicans.

Top lawmakers filed their own document on June 9 responding to Stein’s request for summary judgment.

“The Governor asks for summary judgment on his claims that section 3E.1.(u) violates the North Carolina constitution,” legislative lawyers wrote. “Acts of the legislature are ‘presume[d]’ to be constitutional, since the legislature has ‘plenary power’ and serves as ‘the agent of the people for enacting laws.’  Because the Governor fails to overcome this presumption of constitutionality, the Governor’s request for summary judgment should be denied.”

Johnson also responded to Stein’s arguments.

“Senate Bill 382 is a constitutional exercise of the General Assembly’s authority, and the Governor’s Summary Judgment brief offers no reason to conclude otherwise,” Johnson’s lawyers wrote. “Enacted as an interim measure during the formative period of a newly independent department, the statute preserves — not displaces — the Governor’s long-term executive authority.”

“Its limited purpose ensures continuity of leadership within the State Highway Patrol as the
department develops and rolls out independent infrastructure and operational capacity,” Johnson’s court filing continued. “For that reason, Senate Bill 382 is constitutional.”

“The Governor’s brief largely overlooks that reality. Rather than grappling with the statute’s actual, time-limited terms, the Governor targets a straw-man, a fictional permanent and sweeping version of Senate Bill 382 — but that version simply does not exist,” Johnson’s lawyers wrote.

Stein, top lawmakers, and Johnson all filed motions for summary judgment on May 27.

SB 382 only purports to allow Stein to appoint a commander to a five-year term starting on July 1, according to the governor’s court filing.

“But Senate Bill 382 does not actually allow the Governor to choose his own Commander,” Stein’s lawyers wrote. “Instead, the law announces that the General Assembly has itself already picked the individual who will lead the Patrol through 2030, and it protects that individual from removal by the Governor for any reason.”

“Legislative appointment of a member of the Governor’s Cabinet violates the separation of powers mandated by our state constitution,” the governor’s lawyers added. “For that reason, our Supreme Court has underscored that the Governor must have ‘the power to nominate [his own Cabinet members], ha[ve] strong supervisory authority over them, and ha[ve] the power to remove them at will.’ Yet Senate Bill 382 strips the Governor of all three of these powers with respect to the next Commander of the State Highway Patrol.”

“This level of interference with the Governor’s authority would be problematic at any Cabinet agency,” Stein’s lawyers argued. “But it is especially concerning given that law enforcement is a core executive function, and the State Highway Patrol is central to law enforcement in North Carolina.”

What Stein dubs SB 382’s “legislative commander” provision does more than violate the separation of powers between the executive and legislative branches, Stein’s lawyers wrote.

“The Legislative Commander Provision is also independently unconstitutional because it confers an exclusive emolument,” they explained. “The provision grants Col. Johnson an unprecedented five-and-a-half-year, unremovable term that is unique to the history of the State Highway Patrol and serves no public purpose. That kind of exclusive privilege has been unconstitutional since the founding of our State, and it should be enjoined as unconstitutional in this case.”

Legislative lawyers emphasized the General Assembly’s “inherent and express authority to create and modify our state’s agencies and departments.”

“Exercising this constitutional authority, the General Assembly reorganized the State Highway Patrol and determined that Col. Freddy Johnson — the current Commander of the Patrol, who was appointed by Governor Cooper — should continue in office as part of the Patrol’s reorganization.”

“In this lawsuit, the Governor expresses no qualms with the Patrol’s reorganization,” lawmakers’ lawyers added. “The Governor also is untroubled with Col. Johnson continuing to serve as the Commander — for the Governor has never said he wants to remove Col. Johnson from office. Governor Stein’s lone grievance is that he has lost the power to fire Col. Johnson at his pleasure — a power the Governor believes the constitution guarantees him. The Governor’s grievance does not warrant judicial relief.”

“Our constitution does not assign the Governor the duty of enforcing our state’s criminal and public-safety laws,” legislators’ brief argued. “The constitution instead assigns that duty to other officials, such as sheriffs and district attorneys. Simply put, the constitution does not make the Governor our state’s supreme criminal law-enforcement officer.”

“As such, the General Assembly can, as part of restructuring the Highway Patrol, limit the Governor’s influence over the Commander — just like how our constitution shields local law-enforcement officials from the Governor’s control,” the brief continued.

“In the end, the Governor’s grievance against the General Assembly is a matter to be resolved by the ballot box, not by the judiciary,” legislators’ lawyers argued.

Johnson also defended the General Assembly’s decision in his own court filing.

“The Governor asks this Court to override a limited, one-time decision by the General Assembly,” Johnson’s lawyers wrote. “The General Assembly took this action to ensure that a newly formed, Cabinet-level State Highway Patrol (the ‘Patrol’) has the steady leadership it needs to get off the ground during this transitional period. The law allows the General Assembly to take this action, so this Court should decline the Governor’s request.”

“Senate Bill 382 reorganizes North Carolina’s statewide law enforcement apparatus by elevating the Patrol to a Cabinet-level department and vesting the newly elevated Patrol with substantial responsibilities,” Johnson’s court filing continued. “Senate Bill 382 consolidates duties previously scattered across multiple agencies under one roof. That consolidation was and is no small task, though.”

“That is why the General Assembly did not just create the Patrol and hope for the best. It retained a seasoned, widely respected leader Commander Freddy L. Johnson (‘Commander Johnson’ or the ‘Commander’) to guide the department through its vulnerable early years,” Johnson’s lawyers wrote.

“Far from the power grab the Governor bemoans, that provision of Senate Bill 382 simply makes good, practical sense,” the court filing continued.

Johnson’s lawyers rejected Stein’s argument about the patrol commander’s job being an “exclusive emolument.”

“[T]he Emoluments Clause does not bar compensation for legitimate public service; if that were the case, an untold number of the Governor’s own personnel selections would be unconstitutional, including any replacement for the Commander,” the court filing explained.

“The General Assembly had good reason to entrust the Patrol’s launch to a leader of Commander Johnson’s caliber, who was selected, endorsed, and installed by none other than Governor Cooper,” Johnson’s lawyers wrote. “This law is narrowly tailored, time-limited, and tied directly to a legitimate public goal: ensuring stable, effective leadership at a pivotal moment of institutional restructuring.”

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. State Supreme Court Chief Justice Paul Newby appointed Houston in February to serve on the state’s Business Court.

Newby, a Republican, appointed the three-judge panel.

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