North Carolina Lawyers Weekly
Now that the North Carolina Supreme Court has declared Gov. Pat McCrory the victor in a landmark separation of powers fight over appointments to state environmental commissions, the question of whether he and legislators can move forward together looms over the General Assembly.
Also undecided is the fate of nine McCrory appointees, including two appointments to the state’s Business Court bench—Gregory McGuire and Michael Robinson—and another to the Superior Court—Charles Viser—all of whom have been in limbo throughout the appellate process.
And, finally, what will happen to the three commissions at the center of McCrory’s dispute with Senate President Phil Berger and House Speaker Tim Moore in the wake of the Supreme Court’s decision?
The court held 6-1 that the legislature usurped McCrory’s executive power to execute the state’s laws when it gave itself the authority to establish commissions that regulate coal ash management, mining, and oil and gas exploration, and also to appoint the majority of the members.
Chief Justice Mark Martin wrote in the majority opinion that the move left McCrory “with little control over the views and priorities of the officers that the General Assembly appoints.”
“The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the governor and lodge it with itself,” he said.
Martin added that a decision against McCrory and two former state governors who joined the suit as co-plaintiffs, Jim Hunt and Jim Martin, would effectively “nullify the separation of powers clause, at least as it pertained to the General Assembly’s ability to control the executive branch.”
In dissent, Justice Paul Newby contended that the legislature did not overstep its bounds because it never gave itself authority to control the commission members, only the power to appoint them.
“The authority to appoint is simply a mode of filling positions and does not result in control over the appointed officials,” he wrote.
John Wester, David Wright and Andrew Kasper of Robinson Bradshaw in Charlotte represented the governors. Wester, who argued the case at the Supreme Court, said after the decision was published Jan. 29 that the “three commissions challenged here – and commissions to come – will need new members for sure.”
Former state Supreme Court Justice Bob Orr, who is now of counsel at Campbell Shatley in Asheville and filed amicus briefs in support of the governors, said the opinion “provides some clarity to the issue about separation of powers and the appointments of commissions.”
He noted that the decision still allows the General Assembly to make appointments as long as those appointments do not cross the separation of powers boundary and encroach on the governor’s authority to execute the laws.
Martin found that the degree of control a governor has over a commission “depends on his ability to appoint the commissioners, to supervise their day-to-day activities, and to remove them from office.”
Here, the legislature had the authority to appoint the majority of the members of the three environmental commissions and McCrory had very little power to remove the members. The commissions also were given final executive authority over certain state Department of Environment and Natural Resources decisions.
“If it’s an executive branch board or commission and they’re performing executive branch functions, then the governor has to have sufficient control over that,” Orr said. “Otherwise, it’s a violation of separation of powers.”
He added that McCrory and the legislature “should frankly sit down and work through it,” possibly by amending the legislation authorizing the General Assembly to appoint commission members in a way that satisfies the separation of powers law. That might include giving McCrory the power to appoint the majority of commission members or to remove them.
“This is not an easy, cut-and-dried answer,” Orr said. “But now that the court has issued this ruling and given some guidelines it would certainly be my suggestion for everybody to see what makes sense to avoid as many conflicts as possible. … The legislation would be back to square one on whether they want to pass a new law or make changes.”
An attorney for Berger and Moore, John Culver of K&L Gates in Charlotte, said he was not authorized to discuss the case. An attempt to reach Andrew Tripp, general counsel to the state Senate, was unsuccessful.
Meanwhile, Wester was unsure about what would happen with the McCrory appointees in limbo. Senate leaders had declined to approve the appointments until the Supreme Court heard Berger and Moore’s appeal of the lower court’s March 2015 decision in favor of the governors.
“That’s a question for our opponents and it’s a serious one,” he said. “We hope things will go forward with collaboration between the office of the governor and the General Assembly.”
Follow Phillip Bantz on Twitter @NCLWBantz
