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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE l6 CVS 015636

ROY A. COOPER, in his of?cial
capacity as GOVERNOR OF THE STATE

OF NORTH CAROLINA,
Plaintiff,
V.
PHILIP E. BERGER, in his of?cial capacity TEMPORARY RESTRAINING
as PRESIDENT PRO TEMPORE OF THE ORDER

NORTH CAROLINA and
TIMOTHY K. MOORE, in his of?cial
capacity as SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES,

Defendants.

 

 

THIS MATTER came on for telephonic hearing on February 7, 2017, before the
undersigned three-judge panel upon the Plaintiff?s Motion for Temporary Restraining Order
regarding Part of House Bill 17 (Session Law 2016-126, 38-39) (?the Advice and Consent
Amendment?). Upon consideration of all matters of record, including the Amended Complaint,

af?davits on ?le, arguments by counsel for Plaintiff and counsel for Defendants, the Court ?nds

and concludes as follows:

1. This Court has personal and subject matter jurisdiction over this cause.
2. This cause is pr0perly referred to the undersigned three-judge panel.
3. The Plaintiff, in his motion for temporary restraining order, seeks to restrain the

operation of the Advice and Consent Amendment, which was enacted by the North Carolina
General Assembly on December 19, 2016 and requires the Governor to submit his nominees to

head the principal departments to the North Carolina Senate for con?rmation.

4. The statutory deadline for the Governor to submit his nominees to the President of
the North Carolina Senate is May 15, 2017. See NC. Gen. Stat. Despite the
existing May 15 deadline and the fact that the Governor has not yet noti?ed the President of the
Senate of the names of the Governor?s nominees, the North Carolina Senate has scheduled each of
the Governor?s nominees to appear for a con?rmation hearing between Wednesday, February 8,
2017 and Thursday, March 16, 2017. The ?rst nominee scheduled to appear for a con?rmation
hearing (on Wednesday, February 8, 2017 at 11:00 am) is Larry Hall, who the Governor appointed
as Secretary of the Department of Military and Veterans Affairs.

5. Plaintiff?s Amended Complaint (W 70-89, 132?39, 155-65), challenges the
constitutionality of the Advice and Consent Amendment on the grounds that it violates Article 1,
Section 6, and Article Sections 1, and 5(8) of the North Carolina Constitution. In his
Amended Complaint, Plaintiff seeks declaratory relief, a preliminary injunction, and a permanent
injunction. Plaintiff has ?led motions seeking a temporary restraining order and preliminary
injunction.

6. The Court ?nds and concludes that:

a. The Plaintiff, Governor Roy A. Cooper, has shown a likelihood of
success on the merits of his challenge.

b. The Plaintiff is likely to sustain irreparable harm unless a temporary
restraining order is issued and, in the opinion of the Court, the issuance of a temporary
restraining order is necessary for the protection of the Plaintiffs rights during the course
of this litigation.

c. The balance of equities favors granting a temporary restraining order. The

immediate and irreparable harm caused by the challenged legislation outweighs any

possible harm in preserving the status quo prior to the challenged legislation being
implemented. Plaintiff?s selections of the individuals to lead the principal executive
departments will not be disrupted in their daily activities to faithfully execute the laws.
Should the Advice and Consent Amendment ultimately be held constitutional, the
con?rmation process may proceed at that time.

d. It is not possible, at this early time, for the Court to identify and excise
particular provisions of Part of House Bill 17 likely to be unconstitutional while

allowing other portions of Part of the challenged legislation to take effect.

THEREFORE, the Court concludes that the Plaintiff?s Motion for a Temporary Restraining
Order should be ALLOWED and that the Defendants are enjoined during the pendency of this
litigation and until further order of the Court as follows:

a. Plaintiff Governor Cooper does not have any duty to take any action to implement or
enforce Part of House Bill 17 (Session Law 2016-126, 38-3 9) and may so inform
the individuals he has appointed to lead the principal departments;

b. The provisions of General Statutes Chapter 143B remain in effect as they were before
the passage of Part of House Bill 17;

c. Defendants are restrained and enjoined from taking any action to implement or enforce
Part of House Bill 17 (Session Law 2016-126, 38?39); and

d. Defendants? ?of?cers, agents, servants, employees, and attorneys, and . . . those persons
in active concert or participation with them who receive actual notice in any manner of

[this] order by personal service or otherwise? are likewise enjoined from taking any

action to implement or enforce Part of House Bill 17 (Session Law 2016-126, 
38-3 9).
e. In accordance with N.C. Rule Civ. P. 65(0), no security is required of the Plaintiff.
Unless Defendants consent to an extension of this temporary restraining order, Governor-
elect Cooper?s motion for preliminary injunction shall be heard before the undersigned three judge
panel within ten days from the date of this order, on Friday, February 10, 2017, at 11:00 am. in a
location to be determined by the panel and communicated to counsel through the trial court
administrator.

so ORDERED, this the 7th day of February at 5'33 p.111.

SO ORDERED, this the 7th day of February, 2 7 



on?) able?Ietsse B. Caldwell, 

so ORDERED, this the 7th day of February, 2017

The Honorable L. Todd Burke

 

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that the foregoing document was served on the parties listed below by
mailing a copy thereof to each of said parties, addressed, postage prepaid, as follows:

Jim W. Phillips, Jr.

Eric M. David

Daniel F.E. Smith

BROOKS, PIERCE, MCLENDON, HUMPHREY LEONARD, LLP
Suite 2000 Renaissance Plaza

230 North Elm Street

Greensboro, NC 27401

Attorneys for Plaintiff

Noah H. Huffstetler, 

D. Martin Warf

NELSON MULLINS RILEY SCARBOROUGH, LLP
GlenLake One, Suite 200

4140 Parklake Avenue

Raleigh, NC 27612

Attorneys for Defendants

This the 8th day of February, 2017.



Kellie Z. Myers 

Wake County Trial Court Administrator
PO Box 1916

Raleigh, NC 27602