Governors face long odds in commission lawsuit

by Dan Way, Carolina Journal, December 1, 2014.

The North Carolina Supreme Court is likely to decide the “tremendously important” separation-of-powers lawsuit filed by Gov. Pat McCrory against General Assembly leaders over appointive powers to legislatively created commissions, former Justice Bob Orr says. Orr thinks the justices should be the final arbiters in this dispute.

Should McCrory and fellow plaintiffs, former Govs. Jim Hunt and Jim Martin, win the case against outgoing House Speaker Thom Tillis, R-Mecklenburg, and Senate leader Phil Berger, R-Rockingham, the ruling either could create upheaval in the machinery of state government or have a narrowly targeted impact, according to Orr and Gerry Cohen, former special counsel to the General Assembly.

“This is a tremendously important area of constitutional law [involving] the separation of powers, the improper or proper delegation of legislative powers, that historic tension between the executive and legislative branches,” Orr said.

“Ultimately it needs to go to the Supreme Court, and so even if it didn’t go directly there by statute, I think the court would be inclined to go ahead and take it,” Orr said.

The case is assigned to a three-judge Superior Court panel created this year by statute to hear cases presenting a direct constitutional challenge. The chief justice selects one judge each from the state’s eastern, middle, and western regions.

Challenges to their decision would bypass the Court of Appeals and go directly to the Supreme Court.

McCrory contends in his suit that the legislature “upset the constitutional division of powers” when it established a coal ash commission responsible for administering state laws independent of the executive branch.

That is a “usurpation of the Governor’s constitutional authority and obligation to appoint officials serving on entities responsible for implementing legislation,” the suit states.

Orr said it is unlikely a victory by McCrory, Hunt, and Martin would affect other entities with legislative appointees such as the State Board of Education or UNC Board of Governors.

Those are constitutionally created boards, “whereas the coal ash commission, the mining commission, those are legislatively created commissions, so there’s a big difference there,” Orr said.

He envisions a “normal litigation process where there probably aren’t a lot of factual issues to take up a lot of time with discovery, and so it comes down to probably summary judgment motions on questions of law that the trial court will rule on, and then the losing party arguably will appeal.”

Assuming the case reaches the Supreme Court, he said, the justices will “decide it with great care, understanding the importance the decision has in the balance-of-powers issues, the separation-of-powers issues,” Orr said.

“Since you have to write a decision explaining it, which then is used as precedent in subsequent cases, it’s one of those that the court in its collaborative role, I think, will spend a lot of time and care nuancing over every word and phrase when it comes down,” and that could be time-consuming, Orr said.

Whether the ultimate decision affects more than the coal ash and mining commissions specifically named in the lawsuit “depends on how narrowly or how broadly the parties end up arguing the issues, and how broadly or narrowly the court writes the opinion,” Orr said. “What you write has huge impacts.”

Cohen, too, doubts the State Board of Education and UNC Board of Governors would be affected by this case because they are constitutionally created entities.

But even with those agencies, “The [appointive] principle is the same,” Cohen said. “It could affect a lot of things” depending on how the final decision is written.

“The courts could rule in favor of the plaintiffs, but I don’t think the history of the constitution or its plain words would support the lawsuit,” Cohen said.

“The lawsuit would be very good law if we were talking about Congress and the U.S. Constitution,” Cohen said. “Our constitution is not the same. Our separation of powers is limited by specific provisions in the constitution reserving the right to the General Assembly to appoint persons to public office.”

It could be argued those appointive powers are “very bad public policy, but that has nothing to do with the constitution,” Cohen said. “I’m not saying it’s bad public policy. Our constitution specifically authorizes it, so it couldn’t be unconstitutional” as the governors claim.

North Carolina has a tradition of a strong legislature and weak governor because of its early experiences with a powerful king and oppressive colonial governors.

Cohen said the state has one of the strongest legislatures in the nation, and was the last state to give the governor veto powers – with numerous exceptions, which “is very unusual. I don’t know of any other state that has anything like that.”

Prior to the Civil War, the General Assembly “was all-powerful. It appointed the governor, the Council of State offices, elected judges, and everything. The legislature ran the whole show,” Cohen said.

The constitution of 1868 added a clause saying the governor shall appoint officers with approval of the Senate, and the General Assembly may not approve any officers, Cohen said. “That was put in basically to nail all four corners of the coffin of the legislature running the state.”

But a constitutional convention in 1875 deleted the sentence ending the General Assembly’s power to appoint. The language is much like that in the current constitution — a governor shall appoint with consent of the Senate all offices not otherwise provided for.

In 1893 the General Assembly created a commission to run the state prison, an executive branch entity. Nine of its 12 members were legislative appointees; the governor appointed three.

The governor sued. In 1895, the Supreme Court ruled that “the obvious intent of the 1875 constitutional amendment” was to empower the General Assembly to “create offices, and then provide for appointments the way it wants,” Cohen said.

In the Supreme Court’s Wallace v. Bone decision of 1982, the court ruled the legislature violated the separation-of-powers clause by appointing four legislators to the Environmental Management Commission. But the ruling only prohibited the General Assembly from appointing lawmakers to executive branch agencies, not from making appointments, Cohen said.

Cohen agrees with the governors that the coal ash commission is in the executive, not legislative, branch. But he said once the appointments are made, the members become officers in the executive branch.

“We’ve started the post-election period, and this is an interesting start,” said Andy Taylor, a political science professor at N.C. State University.

“I don’t see how it could help” relations between the Republican governor and Republican-controlled legislature, Taylor said of the lawsuit. “I’m not sure it will hurt much.”

More important, Taylor suggested, could be who succeeds Tillis as speaker when the General Assembly convenes in January. N.C. House Republicans have nominated Rep. Tim Moore, R-Cleveland, to serve as the next speaker.

McCrory “has cover, of course, because he has other governors on the lawsuit, including another Republican governor” in Martin, he said. Hunt is a Democrat.

“There’s nothing in this that’s going to delay anything that both the governor and the General Assembly want to achieve,” said McCrory spokesman Rick Martinez. “This is just basically a disagreement over governance, and it’s not going to prevent them from carrying out the agenda that they have.”

The governor’s office did not respond to requests for information about the source and amount of funding set aside to litigate this lawsuit.

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