Gov. Pat McCrory and two past governors on Thursday filed a lawsuit challenging the legislature’s authority to create commissions and appoint members that encroach on executive branch functions.
The lawsuit comes on the eve of the first meeting of the state’s coal ash commission, and it asks a judge to remove the legislature’s six appointees. The legislature gave the governor just three appointments to the commission.
McCrory let the bill become law without his signature in September, saying at the time the courts needed to resolve the dispute. In a statement his office released Thursday, the governor said the lawsuit was the last resort after attempts to get legislative leaders to join him in asking the N.C. Supreme Court for an advisory opinion.
In addition to the coal ash commission, the lawsuit cites as other examples the General Assembly’s creation of the Oil and Gas Commission and the Mining Commission, and a proposed Medicaid Board.
“These commissions make government less accountable to the will of the people,” McCrory said in a statement. “Citizens and voters must be able to distinguish which branch of government is responsible for making the laws and which branch is responsible for carrying out the laws and operating state government.”
Former governors Jim Hunt, a Democrat, and Jim Martin, a Republican, joined McCrory in filing the lawsuit, which alleges violations of the separation of powers, executive power and appointments provisions of the state Constitution. It seeks a ruling that the practice is unconstitutional and prevents the General Assembly from continuing it.
The lawsuit, filed in Wake County Superior Court, names as defendants Senate President Pro Tem Phil Berger and House Speaker Thom Tillis, along with the six members the legislature appointed to the new Coal Ash Management Commission.
Berger and Tillis issued a joint statement in response, warning that the lawsuit could hamper the coal ash commission’s role in overseeing cleanup of the power plant residue. They said they have tried repeatedly to convince McCrory that suing would be flawed legally and from a public policy perspective.
They noted that the governor signed the bill creating the oil and gas and the mining commissions, and let the coal ash bill became law without signing it, when he could have vetoed them rather than suing.
“The General Assembly’s right to appoint members to independent boards – which are beholden to no single appointing authority and provide truly independent oversight – is far from new and has long been upheld by our state Supreme Court,” the statement said. “Unfortunately, the governor’s costly and time-consuming lawsuit to ensure he picks the majority of regulatory board members ignores history and detracts from their important work.”