N.C. Supreme Court rules for McCrory in historic separation of powers case

NCSupremeCourtSealhorizRALEIGH – In a constitutional victory for North Carolina Gov. Pat McCrory, the North Carolina Supreme Court has sided with the executive branch against legislative leaders. In the 6-1 opinion issued Friday morning, Chief Justice Mark Martin wrote that “the legislative branch has exerted too much control over commissions that have final executive authority. By doing so, it has prevented the governor from performing his express constitutional duty to take care that the laws are faithfully executed.”

The opinion upheld much of the legislature’s authority to appoint independent commissions, but said the issue was the “degree of control” the legislature sought through laws that restricted the governor from controlling or removing commission members.

Gov. McCrory at a press conference in June 2015.

Gov. McCrory at a press conference in June 2015.

“We appreciate the hard work of the Supreme Court to resolve a constitutional question that needed to be answered,” McCrory said. “I want to thank Governors Martin and Hunt for joining me in this action. We will work with the General Assembly to implement this decision as we together continue to make state government more efficient and accountable.”

McCrory sued the General Assembly over its creation of independent commissions filled with mostly legislative appointments. In McCrory v. Berger, the governor argued that the independent commissions, such as the Coal Ash Management Commission, exercise executive functions and therefore must report to him or allow him to appoint all members. The General Assembly argued that agreeing with the governors would upend an appointments process that has served the state well for a century and would constitute a “radical restructuring” of North Carolina government.

The court did not rule exclusively for the governors, but emphasized that the legislature had been exerting too much power when it appointed officers “essentially without the governor’s influence,” as in the case of the coal ash commission. But the justices declined to issue a categorical rule on appointments, saying that “each statutory scheme will vary the degree of control that legislative appointment provisions confer on the General Assembly.”

Still, the opinion comes down squarely against the argument made by the legislature’s legal team, who argued that under the constitution it would be legal for the General Assembly to appoint nearly the entire executive branch.

“The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the governor and lodge it with itself,” the opinion reads.

“While we are disappointed, we respect the court’s responsibility to resolve these Constitutional questions and will carefully review the ruling and determine the next steps necessary to comply,” Senate leader Phil Berger and House Speaker Tim Moore, both Republicans, said in a statement.


Former governors Jim Hunt (left) and Jim Martin (center) talk with former state budget director Art Pope following oral arguments in the McCrory v. Berger case in June.

Former North Carolina governors Jim Hunt, a Democrat, and Jim Martin, a Republican, had publicly supported McCrory in the lawsuit, even attending oral arguments in June at the N.C. Supreme Court.

In June, John R. Wester, an attorney with the Charlotte law firm Robinson, Bradshaw, and Hinson, argued before the Supreme Court that it is the legislature’s job to write the laws and then leave the execution of those laws to the executive branch. On Friday, Wester said he was “gratified” with the result but declined to crow about the victory, saying that he was hopeful about a new era on Jones and Blount streets.

“I hope it will signal a strong period of the best collaboration between the office of the governor and the General Assembly. If we have that collaboration, it will redound to the benefit of our citizens,” Wester said.

Justice Paul Newby was the lone dissenter from the opinion, although he supported part of it. Newby’s lengthy dissent argued that the state’s constitution gives the people the power to govern themselves, and that the people rule through the legislature. Because of this arrangement, overturning a law is “the most serious of judicial considerations,” Newby wrote.

To overrule the legislature, Newby wrote, the court must find “an express constitutional violation beyond a reasonable doubt.” In Newby’s opinion, the governors had not met that level of scrutiny in the cases of the commissions raised by the governors’ lawsuit. The majority seemed to believe that the governor had indeed met that burden.