The first lawsuit on Senate Bill 382 was filed Thursday evening, just one day after the State House voted to override the Governor’s veto of the bill. This is unlikely to be the only lawsuit on the bill, with many expecting lawsuits to be filed on changes the bill made to the Board of Elections, the powers of the attorney general, and other changes to executive offices.
While I am critical of the Governor and Democrats’ argument that the bills’ changes to the Board of Elections are unconstitutional, the governor and his party seem to have a point when it comes to challenging the changes to the state Highway Patrol. The bill changes the Highway Patrol to a cabinet level agency as opposed to simply an agency under the Department of Public Safety. While cabinet positions are nominated by the governor and approved with advice and consent from the Senate, this would not be the case for this newly formed cabinet position.
As Western Carolina University Professor Dr. Chris Cooper points out, section 3E.1.(u) specifies the commander of the highway patrol as of November 18th, 2024 will serve in that position until July 1,2025. After that time the commander would then serve an additional 5-year term without additional nomination from the Governor or confirmation by the General Assembly.
While the incumbent commander Colonel Freddy Johnson (who was all but directly named in the statute) was appointed by Governor Cooper, this would prevent Stein from being able to appoint a head of an executive agency during his current term. The only exception that the bill specifies in which he could appoint to the State Highway Patrol would be upon death, resignation, or physical or mental incapacity.
While there is conflict between the limited removal provision found in the bill and existing general statute 143B-9 which states that “The head of each principal State department, except those departments headed by popularly elected officers, shall be appointed by the Governor and serve at the Governor’s pleasure.” While this is the normal procedure for cabinet appointments, the specificity of the language in SB382 for the head of the State Highway Patrol would likely supersede the more generic statute.
Stein and Cooper argue that because the bill takes an appointment agency away from the Governor until 2030, this violates the state’s interpretation of separation of powers as laid out in McCrory v. Berger (2016). This line of argument does have merit as typically the appointment would be made by the governor and the position is inherently executive in nature by the fact it is a law enforcement agency. By the legislature predetermining who would be the commander of this new agency and preventing the governor from the opportunity to nominate a new head of the agency, this seems to violate the state’s separation of powers provision.
While some have interpreted part of the bill to allow for the governor to nominate a new commander to the State Highway Patrol in the coming biennium, I do not agree with that interpretation. Should my understanding and the lawsuit be a misinterpretation of the law, the legislature should clarify that this was not the intent of the legislation.
A technical correction in the coming session could moot this part of the governor’s lawsuit. This may not invalidate the other complaint that the bill was targeted to aid a specific individual, but this would be much more limited in scope since Stein would be able to appoint someone new in July 2025.
