Former supreme court justices say McCrory v. Berger decision well reasoned, worth the wait

NCSealdetailRALEIGH – Two former state Supreme Court justices praised the way North Carolina’s high court handled the dispute between the legislative and executive branches Friday. Former Chief Justice Burley Mitchell called the opinion “well reasoned,” while former Associate Justice Robert Orr called it sound reasoning and a “principled argument.”

Mitchell, now a lawyer with Womble Carlyle Sandridge & Rice in Raleigh, was the Supreme Court’s chief justice from 1995-1999. He said that it was only right that current Chief Justice Mark Martin wrote the opinion.

Burley Mitchell, former chief justice of the N.C. Supreme Court.

Burley Mitchell, former chief justice of the N.C. Supreme Court.

“It’s the kind of opinion the chief justice should write. It’s two branches of government engaged in litigation, the opinion should be written by the highest legal authority, which of course is the Supreme Court, but especially the chief. That’s excellent that he did that.”

And while some have wondered about the timing of the decision – it’s unusual for the court to take more than six months to decide a case – Orr said that it should not bother anyone.

“It was worth the wait,” said Orr. “It’s a legitimate constitutional issue that needed to be brought by the governor and the former governors.”

The N.C. Institute for Constitutional Law, a group with which Orr is affiliated, filed a brief in support of the governors in the case.

Big questions

The dispute was weighty. A sitting governor and two former governors sued the President Pro Tempore of the state Senate and the Speaker of the House of Representatives. Several Council of State members weighed in, as did advocacy groups. To make it even more interesting, there was no clear breakdown by party or ideology for the parties, and all three branches of government were involved.

Two questions were at issue in the case. The first was whether the General Assembly has the constitutional authority to appoint statutory officers to administrative commissions. On this question, all seven justices agreed that the General Assembly can exercise that authority.

The second question centered on the separation of powers clause of the state constitution. If a legislative appointee to a commission exercises executive power, is that a breach of the constitutional separation between the legislative and executive branches?

Mitchell said that the answer is far from easy.

“Our constitution does not have a perfect separation of powers – the way the federal Constitution does – because it treats the legislature as though it is the people,” Mitchell said. “In other words, when the legislature speaks, it is the people speaking. That is what our court has always said in opinion after opinion. Therefore, the legislature has authority to do anything it chooses unless it action violates a specific provision of the constitution.”

But while Mitchell praised the majority opinion for its reasoning, he also said that Associate Justice Paul Newby’s dissent, which stressed the constitutional authority of the legislature, was not out of bounds.

“A principled argument can be made to the contrary, as Justice Newby did, but the court just did not see it his way,” Mitchell said.

Case by case – A wave of lawsuits?
N.C. Supreme Court Chief Justice Mark Martin

N.C. Supreme Court Chief Justice Mark Martin

While the majority of the justices ruled that the General Assembly overstepped its constitutional bounds, the court stopped short of giving explicit instructions on what kind of appointments would pass muster. Indeed, the court was specific that case-by-case decisions would be necessary since each statute creating a commission was different.

“We cannot adopt a categorical rule that would resolve every separation of powers challenge to the legislative appointment of executive officers,” the court wrote. “Because each statutory scheme will vary the degree of control that legislative appointment provisions confer on the General Assembly, we must resolve each challenge by carefully examining its specific factual and legal context.”

So will this decision open the floodgates to litigation on the constitutionality of the actions of every one of hundreds of commissions established over the years by the legislature?

Robert Orr, former associate justice of the N.C. Supreme Court.

Robert Orr, former associate justice of the N.C. Supreme Court.

“It could generate some litigation,” Orr said. “The court is always faced with how broadly do you write an opinion. In this case, the chief justice, I think, fairly narrowly addressed the issue before him – which I would say is the proper way to do it.”

Mitchell said the lack of specificity is a hallmark of court decisions such as this one.

“That’s what judicial restraint is. You answer the question before you and don’t anticipate others,” Mitchell said. “Although I’d like to have all of it answered, I think that Chief Justice Martin and the majority exercised judicial restraint and didn’t go any farther than just saying that [the specific commissions mentioned in the suit] invaded the executive branch’s power. That’s the way courts are supposed to work.”

Orr said that heading into the General Assembly’s short session – members return in April – it would be good to have constructive talks between the branches.

“It would behoove the executive and legislative branches to sit down quietly and talk about how all of this is supposed to work and the best interest of good government. You do that and maybe you avoid future litigation.”