Judges rule for Governor; legislature to hold up appointments

by Jim Morrill, The Charlotte Observer, March 16, 2015.

In what N.C. Gov. Pat McCrory hailed as a historic decision, a three-judge panel unanimously ruled in his favor Monday in a landmark challenge to the General Assembly.

At issue was the separation of powers, specifically whether the legislature has the power to appoint members of certain commissions or whether the governor has sole authority.

The panel, led by Wake County Superior Court Judge Howard Manning, ruled that the Coal Ash Commission and two others “are each administrative or executive in character.”

“The statutes creating these commissions, enacted by the Legislature, provide for the legislative appointment of some of the members, thereby constituting an impermissible… encroachment by the legislative branch of government on the executive branch… in violation of the North Carolina Constitution,” the judges wrote.

The ruling came less than two weeks after lawyers for both sides argued before the panel. The ruling will be appealed automatically to the state Supreme Court.

At the hearing in support of McCrory were two former governors, Democrat Jim Hunt and Republican Jim Martin, who are part of the lawsuit.

“This historic and unanimous ruling respects and restores the separation of powers,” McCrory said in a statement. “I’m proud to stand up for our constitution and the citizens of North Carolina. I’d like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort.”

Senate President Pro Tem Phil Berger and House Speaker Tim Moore, both Republicans, promised to fight for a reversal.

“We are disappointed in today’s decision that disregards a century of rulings from our state Supreme Court and will appeal,” they said in a statement.

“The trial court’s new interpretation of the constitution represents a dramatic shift in the historical constitutional balance between the three branches of government, with implications reaching far beyond the three independent boards named in the lawsuit.”

The Senate announced Monday night that appointments will be held up until the case is resolved. Sen. Tom Apodaca, R-Henderson, said it’s not appropriate to move forward until an N.C. Supreme Court decision is handed down.

“If the opinion stands, it represents a monumental shift in how the General Assembly and the executive branch have done business since the 19th century,” said Sen. Tom Apodaca, R-Henderson.

Judges: ‘Specious’ argument

In its ruling, however, the panel said it was keeping the established constitutional balance. The judges, including Yvonne Mims Evans of Charlotte and Russell Duke of Pitt County, dismissed suggestions to the contrary.

They found some of the General Assembly’s arguments “borderline specious.” When the governor first complained about the legislative appointment, they said, “the legislature brushed these objections aside like a knife through hot butter.”

The case stemmed from the General Assembly’s creation of the Coal Ash Commission to oversee cleanup of the state’s coal ash ponds after last year’s massive Dan River spill. The legislature appointed six of the commission’s nine members.

In their brief, attorneys for the governors had said the legislature appointed commission members empowered “to carry out every single law it enacts.” That, the attorneys said, was “a breathtaking view of legislative reach.”

“The General Assembly seeks to aggrandize its own power… by vesting itself with the power to appoint members of commissions responsible for executing the laws,” the attorneys wrote.

Attorneys for Berger and Moore said the legislature did not intrude upon the governor’s authority. Legislatures have historically appointed boards and commissions, they argued.

‘All-encompassing decision’

Former Gov. Martin said the ruling was more sweeping than earlier cases involving the separation of powers.

“It’s very significant,” he said, “because over the last half-century there have been disputes that have been partly settled… and this is more of an all-encompassing decision.”

Attorney John Wester of Robinson, Bradshaw & Hinson in Charlotte, who represents the governors, said the ruling means the legislature’s commission appointments are unconstitutional, casting doubt on their appointees’ ability to carry out their functions.

Whether the ruling will exacerbate tensions that have sometimes existed between the governor and GOP legislative leaders is unclear.

“I don’t think it will have broader implications for the relationship between the governor and the General Assembly,” said Andrew Taylor, a political scientist at N.C. State University.

“This is a victory for the institution of the governorship. But it’s not a sort of political victory for McCrory over the General Assembly.” BENJAMIN BROWN OF NCINSIDER.COM, A GOVERNMENT NEWS SERVICE OWNED BY THE RALEIGH NEWS & OBSERVER, CONTRIBUTED.