Appointments power hanging in the balance at the state Supreme Court

Appointments power hanging in the balance at the state Supreme Court


State lawmakers and governors past and present squared off at the Supreme Court yesterday over who’s empowered to make commission appointments – particularly, in this instance, to the recently created Coal Ash Commission, Oil & Gas Commission and Mining Commission.

The dispute between the branches of government came to a head last fall after legislators created the commissions and authorized the House speaker and Senate president to appoint most of the members on each.

Gov. Pat McCrory, joined by former governors Jim Hunt and Jim Martin, then filed suit against the speaker and president, alleging that lawmakers had overstepped their authority in limiting the governor’s appointments to commissions that functioned under the province of the executive branch.

But the legislative leaders claimed absolute authority to make those appointments, saying that the state constitution clearly gave them that power.

A three-judge panel ruled for the governors in March 2015, holding that state lawmakers had violated the separation of powers clause of the state constitution.

“It is beyond any reasonable doubt that the nature of the powers and duties to be exercised by the three commissions and their members are primarily administrative or executive in character,” the judges wrote.

“As a result, the statutes creating these commissions provide for legislative appointments of some members, thereby constituting an impermissible commingling of legislative and executive power and an impermissible encroachment on the executive branch of government.”

The question then for the state’s highest court yesterday was who held the trump card – legislators, who claimed the appointments clause of the constitution gave them authority, or the governors, who said the separation of powers clause limited that authority.

And the answer was anything but clear, based upon questions from the justices at argument.

How they rule in an opinion expected in a few months could shift the balance of power in Raleigh, though – giving the governor more control perhaps over appointments to the hundreds of commissions and boards overseeing and implementing state policy.


John Culver, the attorney for House Speaker Tim Moore and Senate President Phil Berger, opened his argument to the court by suggesting to the justices that the General Assembly’s appointments powers has long been settled.

“The governors ask this court to do two things,” Culver said.

“First of all they ask this court to restructure an appointments process that has served our state exceedingly well for over 100 years. Secondly, they ask the court to change over 100 years of constitutional jurisprudence.”

The state constitution clearly gives the General Assembly the power to decide how appointments are made, Culver noted, and case law has long supported that.

Chief Justice Mark Martin stopped Culver there, wondering at what point appointments by the General Assembly crossed the line and usurped the governor’s powers under a separation of powers argument.

“In which branch of government is the Coal Ash Commission located?” Martin asked.

“It is administratively located within the executive branch,” Culver answered.

Justice Robert Edmunds then joined the questioning, picking up on the conclusion of the judges below that the Commission performs tasks typically reserved for the executive branch.

“How do you characterize the powers the Coal Ash Commission has?” Edmunds asked.

They do a little of everything, Culver said, acting at times in ways that are quasi-legislative and at other times quasi-judicial or quasi-executive.

The Chief Justice picked up on that, noting that although the General Assembly appoints the majority of commission members, the commission itself is housed in the executive branch and is performing some admittedly executive functions.

“How does the separation of powers provision operate in that circumstance?” Martin asked.

The separation of powers clause doesn’t come into play, Culver answered, because the constitution clearly grants the appointments power to the General Assembly.

Justice Edmunds asked what if any were the limits to the General Assembly’s appointment power:

“Are you arguing that the only limitation on the General Assembly’s power to make appointments are specific references in the constitution and that otherwise the General Assembly can make such appointments as it sees fit, and the people’s only remedy is the ballot box?”

“I’m arguing that with respect to appointments of public officials, that power is allocated to the General Assembly,” Culver answered.

“The limitation is the limitation that is inherent in our constitutional system of government, whereby the representatives and senators are elected every two years directly by the people.”

When the time came for the governors to make their case, their attorney John Wester sought to shift the court’s focus.

“This case at its most fundamental level is not about the act of appointment,” he suggested to the justices.

“Its about the execution of laws. Which branch gets to choose the individuals responsible for execution of the laws?”

Wester pointed out that the allocation of authority among the branches of government was clear: The legislature makes the laws, the executive carries out the laws and the judiciary interprets the laws.

“The constitution has not granted the legislature the right to execute the laws it passes,” he argued.

“When the legislature makes appointments, whether pursuant to the power in the appointments clause or from some other constitutional source, it must do so within separation of power principles.”

Justice Paul Newby then jumped in, reminding Wester that in some prior cases the court had upheld legislative appointments to executive commissions.

“Is it your position that any appointment by the General Assembly of an individual who serves on a commission housed in the executive branch would be a violation of the separation of powers clause?” Newby asked.

“Yes, your honor,” Wester answered, “and that is because once the legislature has done its critical work of passing the laws, its work is complete.”

Justice Newby also used his time during the governors’ case to express his concern that Gov. Pat McCrory lacked standing to bring the case – an argument made by the legislative leaders – given that he failed, in the case of the Coal Ash Commission, for example, to veto the underlying legislation.

“It does seem to me that there’s at least an argument that when the governor took an oath to uphold the constitution, that if he believed something was unconstitutional, his duty under the constitution is to veto that legislation,” Newby said.

Wester said that the governor had to weigh a veto against the pressing public policy concern of getting the coal ash situation under control.

Newby responded:

“Why should we not require the governor to say, ‘even though are some great policy issues here, I’m going to veto this because I’ve taken an oath to uphold our constitution, and I believe certain provisions of this are unconstitutional?”