"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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