by Associated Press, published in Winston-Salem Journal, June 30, 2015.
Attorneys for North Carolina’s current and past governors and legislative leaders offered the state Supreme Court Tuesday very different readings of the legislature’s powers and limits in making appointments to boards and commissions.
Following oral arguments that could change the balance of power between the legislative and executive branches, the seven justices now must decide whether the General Assembly went too far in passing laws involving three new state environmental commissions. Or they could decide the legislature simply used its historically broad power in North Carolina when compared to the governor.
A ruling is likely months away.
On each commission challenged, the House speaker and Senate leader choose a majority of the board positions. In one case, the Coal Ash Management Commission is charged to act independently of McCrory’s environmental agencies. The coal ash commission has gotten attention because of Duke Energy’s 2014 coal ash spill that coated 70 miles of the Dan River in sludge containing toxic heavy metals.
Gov. Pat McCrory and ex-Govs. Jim Martin and Jim Hunt sued last November, arguing the legislature was interfering with a governor’s duties to carry out state laws with the legislative appointments on the boards and with the coal ash panel’s directive for independence. A three-judge panel agreed with the governors in March.
“When the legislature tells the governor you can no longer execute the state’s environmental laws, but you must listen to our people — whom we’ve appointed to do that — that’s how the legislature has overstepped its bounds,” said John Wester, representing the governors in court.
As Hunt and Martin watched from the courtroom gallery’s front row, Wester also told the justices the legislature has no authority to appoint people to gubernatorial agency boards and commissions because the powers of the two branches are separate under the state Constitution.
But John Culver, representing Senate leader Phil Berger, R-Rockingham, and Speaker Tim Moore, R-Cleveland, defended the appointments and set up of the coal ash commission, which he said may perform duties of all three branches. Since 1875, the North Carolina Constitution inherently has given the power of appointments to the legislature, Culver told the justices.
If the governors prevailed in the case, changes to more than 100 boards and commissions in which legislators pick all or some appointees may be required.
“The question presented here has been answered for 140 years,” he said. “The court should not adopt the governor’s radical restructuring of how our state government runs.”
Culver contends the legislature’s appointment power goes quite far. Associate Justice Sam Ervin IV asked whether the legislature is prevented from passing laws that give it authority to choose members of the governor’s Cabinet.
“The Constitution allocates that power to the General Assembly to exercise it in accordance with its best judgment,” Culver responded. “So the answer to your question is no.” A 1980s state Supreme Court case affirmed current legislators couldn’t be appointed to executive branch commissions. Wester argues it applies to all legislative appointees, too.
Associate Justice Paul Newby expressed skepticism whether McCrory had legal standing to challenge the boards and commissions because the governor declined to veto the bills that contained them.
McCrory, who let the coal ash panel become law without his signature, had expressed concerns about the commission in letters and public comments. But he also wanted a mechanism in place to oversee the management of cleaning coal ash pits, and the law allowed for that while he challenged portions in court, Wester said.
“What he did allows government to move forward in the best manner than we can have,” he said.
McCrory, Moore and Berger didn’t attend Tuesday’s oral arguments. Berger said last year he wanted the commission overseeing Duke’s cleanup to act independently, because McCrory worked for the company for 29 years, leaving in 2008. He was elected governor in 2012.
The case also involves membership on the Oil and Gas Commission and the state Mining Commission.