Ruling for McCrory in appointments case could rebalance NC government power if upheld


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RALEIGH, North Carolina — A lawsuit pitting three North Carolina governors against General Assembly leaders has clearly become more than a legal exercise on the state Constitution's finer points as it heads to the state Supreme Court.

Last week, a panel of three Superior Court judges struck down the appointments scheme created by the legislature last year for three environmental boards — a ruling that could rebalance the power between legislative and executive branches for decades ahead if upheld.

Legislative leaders make a majority of the three boards' appointments yet the ruling sided fully with Gov. Pat McCrory.

"Sure, it could have a tremendous effect," said Michael Crowell, a constitutional law professor at the School of Government at the University of North Carolina at Chapel Hill.

"It would be pretty sweeping," added Gerry Cohen, who retired last year as special counsel to General Assembly leaders.

House Speaker Tim Moore and Senate leader Phil Berger have announced plans to appeal. They said the ruling had "implications reaching far beyond the three independent boards named in the lawsuit."

McCrory praised the decision, however, as one that "respects and restores the separation of powers" between the branches of government.

John Wester, a Charlotte attorney for McCrory and fellow plaintiffs former Govs. Jim Hunt and Jim Martin, restrained himself on the breadth of the decision. Wester said the lawsuit wasn't about "some ambition of gubernatorial powers," but rather about making "sure we're respecting the boundaries that the Constitution has drawn."

Cohen, who isn't involved in the case, said more than 100 boards and commissions in which legislators pick all or some appointees could have to be re-worked should the justices uphold the decision. Those include the Rules Review Commission, which signs off on important details of how government agencies will carry out laws, and the state Wildlife Resources Commission, which regulates hunting, and fishing. That could shift power to the governor.

In turn, the Senate also could decide to ramp up its little-used constitutional authority to formally confirm more appointments of governors moving forward.

"One would guess that the legislature is not going to just go away and give up its interest in how these agencies are run," Crowell said.

The judges said the General Assembly was wrong in giving the speaker and Senate leader authority to make appointments to the new Coal Ash Management Commission, as well as the composition of the soon-to-be state Oil and Gas Commission and Mining Commission. The judges also said the legislature couldn't demand the coal ash panel, which is overseeing the cleanup of Duke Energy's coal ash pits, to act independently of McCrory's environmental agencies.

The judges cited the state Constitution's directive that the three government branches "shall be forever separate and distinct from each other" and a 1982 Supreme Court ruling striking down some legislative appointments. In that case, however, the legislature had required two House members and two senators to serve on an environmental panel. In the new case, non-legislators would be appointed to serve.

Attorneys for Moore and Berger contend the governors' lawyers ignored more than 100 years of court rulings and constitutional language that give legislators the right to make appointments, even to commissions within the executive branch. Wester disagrees and says appointment authority for the legislature should apply only to non-executive branch commissions.

Senate Rules Chairman Tom Apodaca, R-Henderson, said he wouldn't be surprised if people file lawsuits challenging the actions of other commissions on which legislative appointments sit. Crowell said it's unlikely that previous decisions by the commissions would be struck down. But others disagree.

A lawsuit filed seeking to void the finalized rules for gas exploration through fracking argues the appointment process for another commission that wrote them was unconstitutionally flawed because legislative leaders chose a majority of members, too. The victory for the governors appears based on similar arguments.

"The implications of the ruling are much broader, and we feel this is a very positive ruling for our case," said Mary Maclean Asbill, an attorney for the Southern Environmental Law Center representing those who sued.

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