Berger and Moore: Governor doesn't have power to control appointments

by Craig Jarvis, News and Observer, January 26, 2015.

Gov. Pat McCrory doesn’t have the legal authority to control the majority of appointments to commissions that the General Assembly creates, attorneys for legislative leaders argue in a court document filed Monday.

Senate President Pro Tem Phil Berger and House Speaker Tim Moore are asking a three-judge panel to rule against a lawsuit filed by the governor, who wants control of a new Coal Ash Management Commission and others like it. McCrory and former governors Jim Hunt and Jim Martin sued in November to unseat the state legislature’s appointments to the coal ash commission and prevent future appointments controlled by the General Assembly that encroach on what they contend are executive branch functions.

The document filed Monday in Wake County Superior Court asks a panel of three Superior Court judges to resolve the dispute based on the legal arguments already raised in court filings because there are no factual disputes.

It is one of the first cases to go before a three-judge panel hearing constitutional challenges to the state’s laws under legislation enacted last year. This panel, appointed by the chief justice of the Supreme Court, consists of Wake County Judge Howard Manning Jr., Pitt County Judge Russell Duke Jr. and Mecklenburg County Judge Yvonne Evans.

Attorneys for the legislative leaders say century-long practice has established that the vast majority of boards and commissions are appointed by some combination of the governor and legislature. In the case of the coal ash commission, the law gives the governor three of the nine appointments.

Among the arguments the legislative leaders make is that there is a “bedrock principle” that laws the General Assembly passes are presumed to be constitutional and require a greater burden on those challenge them.

“The governor (and former governors) may disagree with those policy choices, and has the absolute right to express those policy differences in the political area,” the brief says. “But a constitutional challenge requires more: The plaintiffs must show beyond a reasonable doubt that the policy choices enacted by a nearly unanimous General Assembly violate the Constitution.”

Berger is represented by John H. Culver III and Moore by Brian C. Fork. Both are with the K&L Gates law firm, with offices in Raleigh and Charlotte.

The attorneys also contend the governor doesn’t have the legal standing to bring the lawsuit because he could have vetoed the bill establishing the coal ash commission. Instead, he let it become law without his signature, saying it was a separation-of-powers issue that the courts should resolve.

“By failing to exercise the executive veto power provided by the Constitution, the governor cannot now complain that the political process resulted in a statute that deprives him of his constitutional authority,” the filing says.

The attorneys say the state Constitution doesn’t define the governor’s executive power, which they contend is limited to the authority to execute the legislature’s laws.

Berger’s and Moore’s attorneys cite a lawsuit that former governor Martin brought in 1987 challenging the constitutionality of a law that gave the chief justice the authority to appoint the director of the Office of Administrative Hearings. Martin ultimately lost the case and, the court filing says, three judges concluded, “the people have, by the Constitution of North Carolina, authorized the General Assembly to place appointment power in someone other than the governor.”