Under the Dome

Council of State members oppose McCrory’s appointments lawsuit

Four top elected state officials on Wednesday sided against Gov. Pat McCrory in his separation of powers lawsuit against the legislature over who can make appointments to boards and commissions.

The Council of State members – two Republicans and two Democrats – contend that a three-judge panel’s ruling in the governor’s favor in March misinterprets established precedent. They say it represents a “significant shift” from the state’s 140-year-old model of a decentralized executive branch, and gives the governor too much power.

The friend of the court brief was filed with the state Supreme Court on behalf of Labor Commissioner Cherie Berry, Agriculture Commissioner Steve Troxler, Insurance Commissioner Wayne Goodwin and Auditor Beth Wood. Berry and Troxler are Republicans; Goodwin and Wood are Democrats. The Council of State is comprised of 10 elected state officials, including the governor.

They argue that the authority to make appointments doesn’t rest with just one branch of government. They say the act of making appointments is a way of organizing the government but doesn’t constitute governing itself; therefore, the separation of powers doctrine doesn’t apply.

Governors have attempted in the past to consolidate power by weakening the role of the other nine members of the Council of State, the brief says. If McCrory is right, they argue, then the governor could take over any number of responsibilities the Council of State currently has, which could destabilize the entire regulatory landscape in the state.

McCrory, a Republican, filed suit primarily over the legislature’s majority of appointments to the new Coal Ash Management Commission. The Council of State foursome say if boards with legislative appointments are found to be unconstitutional, the implications would be “staggering.” They note environmentalists have already sued to declare the state’s fracking board unconstitutional, based on McCrory’s lawsuit.

E. Hardy Lewis with the Raleigh law firm of Blanchard, Miller, Lewis and Isley is representing the four Council of State members.

An earlier version of this story incorrectly identified Berry’s and Troxler’s titles. They are commissioners not secretaries.

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