RALEIGH – Former North Carolina governors Jim Hunt (D) and Jim Martin (R) came to the N.C. Supreme Court Tuesday to support current Governor Pat McCrory (R) in McCrory’s fight against the Republican-controlled legislature.
“Ultimately it comes down to, what does the constitution say, and does it mean what it says,” said Martin, who was governor from 1985-1993. “It says that the executive, legislative and judicial authorities ‘shall be forever separate.’ It either means that or it doesn’t.”
Hunt was also steadfast in his support of McCrory, who 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 separation of powers means that the governor gets to make these appointments – because he’s the one who is going to be held accountable,” Hunt said following the arguments. Hunt was governor from 1977-1985 and from 1993-2001.
Lawyers for the General Assembly, led by John Culver of the firm K&L Gates, 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 governor’s legal team, led by John Wester of Robinson, Bradshaw, and Hinson, said that it is the legislature’s job to write the laws and then leave the execution of those laws to the executive branch. He was careful to make clear that McCrory was not asking the court to overrule previous Supreme Court decisions, saying that the governor’s argument was “at peace with those cases.”
The justices were especially active in their questioning, and most observers said that both sides were peppered equally from the bench. Former justice Robert Orr, who sat on the Supreme Court from 1995-2004 and still practices law, said that he could not remember an oral argument with so many questions. But legal counsel for both sides seemed unfazed by the inquisitiveness.
“It’s exciting to have that opportunity,” said Wester. “It wouldn’t be any fun if it were all layups.”
The legislature has the support of four members of the Council of State and the N.C. Chamber of Commerce. With the Senate in session, Sen. Bob Rucho (R-Matthews) was the only legislator to attend the arguments, which began at 9:30 and lasted about 90 minutes.
In the end, the case may hinge on whether the seven justices see the power to appoint as the power to govern, or see it as simply filling slots that then exercise executive power independent of the appointing body.
“The key issue here is whether or not appointment power by the General Assembly of [commission] members… constitute legislative control of the implementation of laws by the commission in violation of the separation of powers clause,” said Ann Matthews of the N.C. Attorney General’s office, who was there to represent the members of the Coal Ash Management Commission.
“The answer to that question is no,” Matthews said. “North Carolina courts have never held that appointment… is equivalent to control.”
But the former governors were not swayed.
“The governor is the only one who is elected by all the people,” Hunt said. “It’s absolutely crucial to the future of our state that the separation of powers be upheld, and the governor be the person who executes the laws.”
Experts say that if experience holds, the court could take 2-5 weeks to decide the case. Ruling for the legislature would mean overturning the decision of a three-judge panel that heard the case in March and found unanimously for McCrory. Legislative leaders then appealed that decision to the Supreme Court.