NO.

52PA17-2 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

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

Plaintiff-Appellant/Appellee,

v.

PHILIP E. BERGER, in his official From the Court of Appeals

capacity as PRESIDENT PRO P17-101
TEMPORE OF THE NORTH P17-412
CAROLINA SENATE; TIMOTHY COA17-694
K. MOORE, in his official capacity
as SPEAKER OF THE NORTH From Wake County
CAROLINA HOUSE OF 16-CVS-15636
REPRESENTATIVES, 17-CVS-5084

Defendant-Appellees/
Appellant,

THE STATE OF NORTH

CAROLINA,

Defendant-Appellee.

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PLAINTIFF-APPELLANT/APPELLEE GOVERNOR ROY A.
COOPER, III’S MOTION TO ENFORCE MANDATE AND
MOTION FOR EXPEDITED RESPONSE
*****************************************************************
 -2-

TO THE HONORABLE SUPREME COURT OF NORTH

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

of North Carolina (“the Governor”), pursuant to Rules 2 and 37 of the

North Carolina Rules of Appellate Procedure, respectfully moves this

Court to enforce its mandate in this action. The Governor shows the

Court as follows:

1. “The law of this State is clear with regard to the trial court’s

authority upon remand.” Crump v. Bd. of Educ. of Hickory Admin. Sch.

Unit, 107 N.C. App. 375, 378, 420 S.E.2d 462, 464 (1992).

[W]hen it comes to our attention that a lower court has

failed to comply with the opinion of this Court, whether
through insubordination, misinterpretation or
inattention, this Court will, in the exercise of its
supervisory jurisdiction, ex mero motu if necessary,
enforce its opinion and mandate in accordance with the
requirements of justice.

Collins v. Simms, 257 N.C. 1, 10, 125 S.E.2d 298, 304 (1962).
In our judicial system the Superior Court is a court
subordinate to the Supreme Court. Upon appeal our
mandate is binding upon it and must be strictly followed
without variation or departure. No judgment other than
that directed or permitted by the appellate court may be
entered.

D & W, Inc. v. City of Charlotte 268 N.C. 720, 722, 152 S.E.2d 199, 202

(1966).
 -3-

2. Indeed, in D & W, this Court issued an order correcting a trial

court’s misapprehension of the mandate just five (5) days after the trial

court had declined to enforce this Court’s opinion pending a further

hearing at the next regular term of Superior Court. 268 N.C. at 721, 152

S.E.2d at 201.

3. D & W also makes plain “[t]hat this Court retains jurisdiction

of the original cause in every case for the purpose of effectuating its

mandate. . . .” 268 N.C. at 723, 152 S.E.2d at 202. “The issuance of the

mandate from this Court d[oes] not exhaust its jurisdiction to enforce its

orders.” Id.

4. Sections 3 through 22 of Session Law 2017-6 were the subject

of the Governor’s appeal in this matter. Those provisions create a new

Bipartisan State Board of Elections and Ethics Enforcement (“New State

Board”) and grant it final executive authority over elections, campaign

finance, ethics, and lobbying laws. See Session Law 2017-6, §§ 3-22.

5. Following certification to the trial court and supplemental

briefing, this Court filed its final decision on the merits of this matter on

26 January 2018. This Court reversed the trial court’s 1 June 2017 order

dismissing this action and remanded for entry of a final judgment.

 -4-

6. By operation of rule, the mandate of this Court should have

issued on 15 February 2018. See N.C. R. App. P. 32. The mandate of this

Court in fact issued to the Court of Appeals on 23 February 2018. See

Exhibit A hereto.

7. The Court of Appeals did not issue its mandate to the Superior

Court until 1 March 2018. See Exhibit B hereto.

8. In the meantime, on 23 February 2018, the trial court panel

of three Superior Court judges held an informal telephone conference to

discuss entry of final judgment with counsel for the parties.

9. On 5 March 2018, the trial court panel entered its final

judgment. See Exhibit C hereto.

10. In that judgment, the trial court decreed that “N.C. Gen. Stat.

§ 163A-2 in its entirety . . . dealing with membership of and appointment

to the State Board [of Elections and Ethics]” is void and permanently

enjoined. See id. The trial court did not invalidate or address any other

portion of Session Law 2017-6.

11. As a result of the trial court’s attempt to “blue pencil” the

challenged provisions of Session Law 2017-6, there is now a new

governance structure for election and ethics laws, without a mechanism

 -5-

in that statute for appointment of members of the New State Board to

oversee the execution of those laws. Instead, the trial court’s final

judgment leaves in place the provisions of sections 3 through 22 of

Session Law 2017-6 that: (a) legislatively appoint the Executive Director

and prohibit her removal until May 2019 at the earliest, see Session Law

2017-6, § 17; and (b) mandate that the chair of each county board of

elections be of the party that currently holds the majority in the General

Assembly, see Session Law 2017-6 §§ 7(h) (amending N.C. Gen. Stat.

§ 163-30), 7(i) (amending N.C. Gen. Stat. § 163-31).

12. To be sure, this Court’s 26 January 2018 Opinion did not

expressly conduct a severability analysis. See Cooper v. Berger, No.

52PA17-2, Slip Opinion (January 26, 2018) (hereinafter “Opinion”). But

this Court held that

the provisions of Session Law 2017-6 concerning the

membership of and appointments to the Bipartisan
State Board, taken in context with the other provisions of
that legislation, impermissibly interfere with the
Governor’s ability to faithfully execute the laws in
violation of Article III, Section 5(4) of the North Carolina
Constitution.

Opinion p. 43 (emphasis added). And those other provisions include both

the appointment of the Executive Director and the provision mandating

 -6-

a particular political affiliation for chairs of county boards of election. See

id. p. 33 (noting limits on the Governor’s powers of supervision because

Session Law 2017-6 “ensur[es] that no one could be appointed to the

position of Executive Director other than the General Assembly’s

appointee until May 2019”); id. p. 41 (“[T]he provisions of Session Law

2017-6 governing the selection of the chair of the Bipartisan State Board

and the manner in which the county boards of elections are structured

have the effect of compounding the separation-of-powers violation . . . .”

(emphasis added)).

13. This Court held that

the relevant provisions of Session Law 2017-6, when

considered as a unified whole, ‘leave[ ] the Governor
with little control over the views and priorities’ of the
Bipartisan State Board by requiring that a sufficient
number of its members to block the implementation of
the Governor’s policy preferences be selected from a list
of nominees chosen by the leader of the political party
other than the one to which the Governor belongs,
limiting the extent to which individuals supportive of
the Governor’s policy preferences have the ability to
supervise the activities of the Bipartisan State Board,
and significantly constraining the Governor’s ability to
remove members of the Bipartisan State Board.”

Id. at 33-34 (citations omitted) (emphasis added).

 -7-

14. This Court noted at least four times in its Opinion that its

holding rested on the “unified whole” (Opinion p. 33); the “totality of the

limitations imposed upon the Governor’s appointment, supervisory and

removal authority set out in Session Law 2017-6” (Opinion p. 35, n.13);

“the totality of the circumstances” (Opinion p. 40); and the provisions

regarding membership on the New State Board “taken in context” with

the remainder of Session Law 2017-6. (Opinion p. 43).

15. “[W]here the unconstitutional portion of a statute ‘is of such

import that the other sections without it would cause results not

contemplated or desired by the legislature, then the entire statute must

be held inoperative.’ ” See In re Appeal of Springmoor, Inc., 348 N.C. 1,

13, 498 S.E.2d 177, 184 (1998)). Session Law 2017-6 does not contain a

severability provision, indicating that the General Assembly—like this

Court and the Governor in his legal challenge—viewed the law as rising

or falling as a “unified whole.” “[W]hile the absence of a severability

clause is not necessarily conclusive, it does provide evidence of legislative

intent.” Id. at 14, 498 S.E.2d at 185.

16. The General Assembly has passed new legislation as a result

of this Court’s Opinion. See House Bill 90, Part VIII (ratified 13 February
 -8-

2018), available at: https://www.ncleg.net/Sessions/2017/Bills/House/

PDF/H90v4.pdf. Unless the Governor signs or vetoes House Bill 90

earlier, it will become law on 16 March 2018. Thus, the Governor—and

Legislative Defendants—must have clarity regarding the scope of this

Court’s invalidation of the challenged portions of Session Law 2017-6,

because that invalidation affects the validity of House Bill 90 if it

becomes law. See, e.g., Bd. of Managers James Walker Mem’l Hosp. v.

Wilmington, 237 N.C. 179, 190, 74 S.E.2d 749, 757-58 (1953).

CONCLUSION

For the foregoing reasons, the Governor respectfully requests that

this Court:

a. Order that Legislative Defendants respond to this Motion no

later than 5:00 p.m. on Friday, 9 March 2018;

b. Declare, with finality, that Sections 3 through 22 of Session

Law 2017-6 are void and without legal effect;

c. Permanently enjoin Sections 3 through 22 of Session Law

2017-6; and

d. Grant such other and further relief as this Court deems just

and proper.
 -9-

Respectfully submitted this the 6th day of March 2018.

Electronically Submitted
Daniel F. E. Smith
N.C. State Bar No. 41601
dsmith@brookspierce.com
BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, L.L.P.
Suite 2000 Renaissance Plaza
230 North Elm Street (27401)
Post Office Box 26000
Greensboro, NC 27420-6000
Telephone: 336/373-8850
Facsimile: 336/378-1001

N.C. R. App. P. 33(b) Certification: I certify that all of the

attorneys listed below have authorized me to list their
names on this document as if they had personally signed it.

Jim W. Phillips, Jr.

N.C. State Bar No. 12516
jphillips@brookspierce.com
Eric M. David
N.C. State Bar No. 38118
edavid@brookspierce.com

Attorneys for Plaintiff-

Appellant/Appellee Roy A. Cooper, III,
Governor of the State of North
Carolina

OF COUNSEL:
BROOKS, PIERCE, McLENDON,
HUMPHREY & LEONARD, L.L.P.
PO Box 26000
Greensboro, North Carolina 27420
Telephone: (336) 373-8850
Facsimile: (336) 378-1001
 -10-

VERIFICATION

The undersigned attorney for the Governor, after being duly sworn,

says:

I verify that Exhibits A, B, and C to the foregoing JVtotion are true

and accurate copies of materials on file with the Wake County Clerk of

Superior Court, as served upon me by the Wake County Trial Court

Administrator on 5 March 2018.

This the 6^ day of March, 2018 —^ ..-•'/""': . -

.,^^^^ • ^ ^ ^ ^^- ^^

/. ^-.. • .•::'" /"

Daniel F. E. Smith, Attorney for

Movant Roy A. Cooper, III, Governor of
the State of North Carolina

Guilford County, North Carolina

Sworn to and subscribed before me this day by Daniel F. E. Smith.

Date: S'Lt ZClS

(signature), Notary Public

'^-) _ (printed or typed name), Notary Public

My commission expires: aS-23-2oZi _f******(mte?S^a^—t

^ NOTARY PUBLIC s
jt MARSHA K. HARDIN |
OUn.FOROCOUNT^'NC' J?
**^***^***^^^^^^
 -11-

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that a copy of the

foregoing document was served upon the parties by email and by deposit

of the same in a postpaid, properly addressed wrapper in a post office or

official depository under the exclusive care and custody of the United

States Postal Service, addressed as follows:

Noah H. Huffstetler, III

D. Martin Warf
Nelson Mullins Riley & Scarborough LLP
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
noah.huffstetler@nelsonmullins.com
martin.warf@nelsonmullins.com

Alec Peters
North Carolina Department of Justice
Post Office Box 629
Raleigh, NC 27602
apeters@ncdoj.gov

This the 6th day of March, 2018.

Electronically Submitted
Daniel F. E. Smith
EXHIBIT A
EXHIBIT B
EXHIBIT C