NC Legislature's appointment power argued in landmark case

by Jim Morrill, Charlotte Observer, March 5, 2015.

A showdown between Gov. Pat McCrory and leaders of the North Carolina General Assembly brought two former governors to a Raleigh courtroom Thursday to hear lawyers argue what could become a landmark case.

At issue is whether the legislature has the power to appoint members of certain commissions or whether the governor has sole authority.

The case could define the constitutional relationship of the state’s chief executive and its legislature.

“It’s fundamental,” former Republican Gov. Jim Martin said before the hearing. “It will determine whether the N.C. Constitution means what it says.”

Attorneys for McCrory, backed by Martin and former Democratic Gov. Jim Hunt, argued that those appointments encroached on “core executive branch functions” and therefore violated the constitutional separation of powers.

Attorneys for Senate President Pro Tem Phil Berger and House Speaker Tim Moore maintained that lawmakers have the power to make such appointments. Joining lawyers for the two Republicans was a deputy of Democratic Attorney General Roy Cooper.

Hearing the case of McCrory v. Berger was a special panel of three Superior Court judges appointed to hear constitutional challenges. Led by Howard Manning of Raleigh, it includes Yvonne Mims Evans of Charlotte and Russell Duke of Pitt County.

Separation of powers a ‘cornerstone’

The hearing, which took place in a courtroom at Campbell University’s School of Law, sounded at times like a law school symposium as attorneys argued arcane points of constitutional law. They invoked the state constitutions of 1776, 1868 and 1971. They cited case precedents, including an 1899 case involving appointments to the Board of Agriculture.

Arguing for the governor, Charlotte attorney John Wester said boards such as the Coal Ash Commission, which would regulate cleanup, perform “quintessential executive functions.” Giving them legislative appointments, he said, represents “a seizure of executive responsibility.”

Wester said a 1982 case – Wallace v. Bone – settled the separation of powers issue when the state Supreme Court ruled the legislature could not appoint its own members to the Environmental Management Commission. The court said, “There should be no doubt that the principle of separation of powers is a cornerstone of our state and federal governments.”

“If the defendants prevail in this case,” Wester said, “the cornerstone of our government has moved to no more than a suggestion.”

Defending the legislature

For the other side, Charlotte attorney John Culver III said the legislature did not intrude on the governor’s authority. Legislatures have historically appointed boards and commissions, he argued. Appointment power, he added, has never rested inherently with the governor, the legislature or the judicial branch.

“The power of appointment is not regarded as exclusively an executive power,” he said. “Make no mistake; the General Assembly has the utmost respect for the office of the governor.”

Ann Matthews, a special deputy attorney general, said the 1996 constitutional amendment that made North Carolina the last state to give governors veto power implicitly recognized the legislature’s appointment power. Among the things the governor cannot veto: appointments.

Culver said the burden is on the governor’s team to prove its case “beyond the shadow of a doubt.”

Martin and Hunt sat side by side behind McCrory’s legal team. Though neither spoke, Hunt left no question where he stands.

The case, he told a reporter, “could well determine how well our government works for the people.”

Manning was the only one of the judges to ask questions or make comments, though none seemed to suggest how he or she would rule. “Don’t beat that horse again,” Manning told a lawyer at one point.

And Manning declined to say when the panel might rule on the case, which is expected to ultimately find its way to the state Supreme Court.

“We will do this on our own timetable,” Manning told a reporter. “This is complicated.”