A panel of North Carolina judges dismissed one of Democratic Gov. Josh Stein's cases against Republican legislative leaders Monday, upholding part of a power-shifting law that prevents Stein from selecting the State Highway Patrol commander.
Three Wake County Civil Superior Court judges made the decision unanimously. The judges' decision means that the dispute won't go to trial, but it can be appealed.
The lawsuit focuses on a portion of a more sweeping law passed by the GOP-dominated General Assembly that eroded the governor's powers, as well as the abilities of other top Democrats that hold statewide offices, last year. A day after its passage, Stein and former Gov. Roy Cooper filed the legal challenge that the judges dismissed Monday.
The law says Stein cannot select his own commander to the State Highway Patrol and, instead, State Highway Patrol Commander Col. Freddy Johnson will keep the job until 2030. Johnson was appointed by Cooper in 2021 and is a defendant in the lawsuit.
In the order that sided with legislative leaders and Johnson, the judges wrote there were “no genuine issues of material fact” and that the plaintiff — Stein — did not prove that the provision was unconstitutional.
An attorney for Stein, Eric Fletcher, had argued in court Monday that the provision guts the governor's abilities and violates the separation of powers. The commander would not be "directly accountable” to the governor, Fletcher said, but rather “indirectly accountable” to the General Assembly.
Fletcher insisted that the lawsuit was not a reflection of Johnson's character and ability to do his job.
Lawyers representing Republican legislative leaders Destin Hall and Phil Berger argued the case should be thrown out because Stein hasn't publicly contended that he wants to remove Johnson from his post and the governor’s arguments were largely hypothetical.
Johnson's lawyer, William Boyle, further affirmed that there is “no crisis here” between the governor and the State Highway Patrol commander and that they aren't “at odds with each other.” Granting the governor the ability to appoint a new commander as the suit makes its way through the courts would also cause “lasting detrimental harm,” Boyle said.
Stein's office is separately fighting another provision in the same state law passed last year that transferred the power to appoint State Board of Elections members from the governor to the state auditor, who is a Republican. Appointments have stayed in place as the provision's constitutionality continues to be debated in courts. They shifted the state elections board from a Democratic to Republican majority.
