State v. Berger

• Citation: 368 N.C. 633,781 S.E.2d 248
• Decision Date: 29 January 2016
• Docket Number: No. 113A15.,113A15.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina, upon the relation of Patrick L. McCrory, individually and in his official capacity as Governor of the State of North Carolina; James B. Hunt, Jr.; and James G. Martin v. Philip E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; and, in their official capacities as members of the Coal Ash Management Commission, Harrell Jamison Auten III, Tim L. Bennett, D. Allen Hayes, Scott Flanagan, Rajaram Janardhanam, and Lisa D. Riegel.

368 N.C. 633

781 S.E.2d 248

STATE of North Carolina, upon the relation of Patrick L. McCrory, individually and in his official capacity as Governor of the State of North Carolina; James B. Hunt, Jr.; and James G. Martin

v.Philip E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; and, in their official capacities as members of the Coal Ash Management Commission, Harrell Jamison Auten III, Tim L. Bennett, D. Allen Hayes, Scott Flanagan, Rajaram Janardhanam, and Lisa D. Riegel.

No. 113A15.

Supreme Court of North Carolina.

Jan. 29, 2016.

Robinson, Bradshaw & Hinson, P.A., Charlotte, by John R. Wester, David C. Wright, III, and Andrew A. Kasper, for plaintiff-appellee Governors; and Office of General Counsel to the Governor, by Robert C. Stephens, Jr., General Counsel, and Jonathan R. Harris, Associate General Counsel, for Governor McCrory, plaintiff-appellee.

K & L Gates LLP, by John H. Culver III, Charlotte, and Brian C. Fork, Raleigh, for legislator defendant-appellants; and Roy Cooper, Attorney General, by Alexander McC. Peters, Senior Deputy Attorney General, and Melissa L. Trippe and Ann W. Matthews, Special Deputy Attorneys General, for Coal Ash Management Commission defendant-appellants.

Arch T. Allen III, pro se, amicus curiae.

Troutman Sanders LLP, Raleigh, by Christopher G. Browning, Jr. and C. Elizabeth Hall, for Carolinas AGC (Associated General Contractors), Employers Coalition of North Carolina, National Federation of Independent Business Small Business Legal Center, North Carolina Chamber, North Carolina Forestry Association, North Carolina Home Builders Association, North Carolina Manufacturers Alliance, and North Carolina Retail Merchants Association, amici curiae.

Blanchard, Miller, Lewis & Isley, P.A., Raleigh, by E. Hardy Lewis, for North Carolina Council of State members Cherie Berry, Commissioner of Labor; Wayne Goodwin, Commissioner of Insurance; Steve Troxler, Commissioner of Agriculture; and Beth A. Wood, State Auditor, amici curiae.

Campbell Shatley, PLLC, by Robert F. Orr, Raleigh, for North Carolina Institute for Constitutional Law, amicus curiae.

MARTIN, Chief Justice.

Our founders believed that separating the legislative, executive, and judicial powers of state government was necessary for the preservation of liberty. The Constitution of North Carolina therefore vests each of these powers in a different branch of government and declares that "[t]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." N.C. Const. art. I, § 6.

Each branch of government has a distinctive purpose. The General Assembly, which comprises the legislative branch, enacts laws that "protect or promote the health, morals, order, safety, and general welfare of society." State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949) ; see also N.C. Const. art. II, §§ 1, 20. The executive branch, which the Governor leads, faithfully executes, or gives effect to, these laws. See N.C. Const. art. III, §§ 1, 5 (4). The judicial branch interprets the laws and, through its power of judicial review, determines whether they comply with the constitution. See id. art. IV, § 1; Bayard v. Singleton, 1 N.C. 5, 6–7 (1787).

The constitution also incorporates a system of checks and balances that gives each branch some control over the others. For example, the Lieutenant Governor is the President of the Senate and casts tie-breaking votes when the Senate is equally divided. N.C. Const. art. III, § 6.

At the same time, the General Assembly can assign duties to the Lieutenant Governor. Id. Still, the separation of powers clause requires that, as the three branches of government carry out their duties, one branch will not prevent another branch from performing its core functions. See Hart v. State, 368 N.C. 122, 126–27, 774 S.E.2d 281, 285 (2015).

In this case, plaintiffs challenge legislation that authorizes the General Assembly to appoint a majority of the voting members of three administrative commissions. Plaintiffs contend that, by giving itself the power to appoint commission members, the General Assembly has usurped Governor McCrory's constitutional appointment power and interfered with his ability to take care that the laws are faithfully executed. Plaintiffs' contentions raise two important questions about the function and structure of state government: (1) Does the appointments clause in Article III, Section 5(8) of the state constitution prohibit the General Assembly from appointing statutory officers to administrative commissions? (2) If not, do the specific appointment provisions challenged in this case violate the separation of powers clause in Article I, Section 6 ?

We hold that, while the appointments clause itself places no restrictions on the General Assembly's ability to appoint statutory officers, the challenged provisions violate the separation of powers clause. In short, 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.

I

The Energy Modernization Act and the Coal Ash Management Act of 2014 create three administrative commissions that are housed in the executive branch of government: the Oil and Gas Commission, the Mining Commission, and the Coal Ash Management Commission. See generally N.C.G.S. §§ 143B–290 to –293.6 (2014) (effective July 31, 2015); id. §§ 130A–309.200 to –309.231 (2014). The Acts also specify how commission members will be appointed and how they may be removed. See generally id.

The Oil and Gas Commission is housed in the Department of Environment and Natural Resources (DENR)¹ and has the power to promulgate rules, make determinations, and issue orders consistent with the Oil and Gas Conservation Act. N.C.G.S. § 143B–293.1. The commission has nine members: three appointed by the Governor and six appointed by the General Assembly. Id. § 143B–293.2(a1). Each member serves a three-year term. Id. § 143B–293.2(b). A majority of the members constitutes a quorum for the transaction of business. Id. § 143B–293.2(e). The commission elects one of its members to serve as chair. Id. § 143B–293.4. The chair appoints members of the commission to a Committee on Civil Penalty Remissions, which has the power to remit civil environmental penalties that DENR imposes. Id. § 143B–293.6(b), (c). The Governor may remove any member of the commission for misfeasance, malfeasance, or nonfeasance. Id. § 143B–293.2(c)(1).

Like the Oil and Gas Commission, the Mining Commission is housed in DENR. Id. § 143B–290. The Mining Commission has the power to promulgate mining rules and affirm, modify, or overrule permit decisions that DENR makes. Id. § 143B–290(1)(c)–(e). This commission has eight members: two appointed by the Governor; four appointed by the General Assembly; the chair of the North Carolina State University Minerals Research Laboratory Advisory Committee; and the State Geologist, who is ex officio and nonvoting. Id. § 143B–291(a1). Each member serves a six-year term. Id. § 143B–291(b). As with the Oil and Gas Commission, a majority of the Mining Commission's members constitutes a quorum for the transaction of business, and the Governor may remove any member for misfeasance, malfeasance, or nonfeasance. Id. § 143B–291(d), (f).

The Coal Ash Management Commission is administratively located in the Division of Emergency Management of the Department of Public Safety but is expressly required to exercise its powers and duties "independently," without "the supervision, direction, or control of the Division or Department." Id. § 130A–309.202(n). This commission has the power to review and approve coal ash surface impoundment classifications and closure plans that DENR proposes. Id. § 130A–309.202(f); see also id. §§ 130A–290(a)(4a), –309.213, –309.214. The commission has nine members: three appointed by the Governor and six appointed by the General Assembly. Id. § 130A–309.202(b). Each member serves a six-year term. Id. § 130A–309.202(o ). Five members constitute a quorum for the transaction of business. Id. § 130A–309.202(h). The Governor appoints the chair of the Coal Ash Management Commission from among the nine members, and that member serves as chair at the pleasure of the Governor. Id. § 130A–309.202(c). As with the other two commissions, the Governor may remove any member of the Coal Ash Management Commission for misfeasance, malfeasance, or nonfeasance. Id. § 130A–309.202(e).

On 13 November 2014, plaintiffs filed a complaint in Superior Court, Wake County, that challenged the constitutionality of certain provisions in the Acts. Plaintiffs argued that the provisions authorizing the General Assembly to appoint members to the commissions—specifically, N.C.G.S. §§ 130A–309.202(b), 143B–291(a1), and 143B–293.2(a1) —violate the appointments clause in Article III, Section 5(8) and the separation of powers clause in Article I, Section 6. Plaintiffs also argued that the provision requiring the Coal Ash Management Commission to exercise its powers and duties independently of the Division of Emergency Management and the Department of Public Safety, see N.C.G.S. § 130A–309.202(n), violates Article I, Section 6 and Article III, Sections 1 and 5(4). Plaintiffs sought a declaration that the challenged provisions are unconstitutional.²

In addition, because the General Assembly had already made appointments to the Coal Ash Management Commission, plaintiffs requested that those appointees be removed.

On 16 March 2015, a three-judge panel of the superior court determined that the challenged appointment provisions did not violate the appointments clause but did violate the separation of powers clause. The panel also determined that...