Gov. Pat McCrory’s fight to stop a state legislature he says is intruding on his authority to make appointments was argued Tuesday in a landmark case before the N.C. Supreme Court.
The governor last year sued to halt the work of a newly created nine-member Coal Ash Management Commission and remove the legislature’s six appointees. The lawsuit also challenged appointments to two other environmental commissions.
The showdown is expected to end in a decision that either changes or affirms the way the appointments to hundreds of state panels have been done in North Carolina for 140 years.
Joining McCrory in the lawsuit, and sitting in the front row of the gallery at the hearing, were former governors Jim Hunt, a Democrat, and Jim Martin, a Republican. The three contend that the appointments violate the separation of powers and appointments provisions of the state Constitution. Sitting with them was a former justice, Robert Orr, who filed a brief in support of the governors.
The lawsuit was filed against Senate leader Phil Berger and House Speaker Tim Moore, both Republicans like McCrory, and the individual members of the coal ash commission. Four top statewide elected officials, two from each party, and business groups have filed briefs siding with the legislature.
The heart of the argument by Berger and Moore is that the General Assembly has the authority to form commissions and make appointments, and that has been upheld as the law since 1875.
“The court should not adopt the governor’s radical restructuring,” which “presents a significant risk to the sound functioning of government,” John Culver III, a Charlotte attorney defending Berger and Moore, told the justices.
John Wester, a Charlotte attorney representing the governor, said legislators overstepped their authority.
“Once the legislature has done its critical work of passing the laws, its work is complete,” Wester said. “The separation of powers has drawn firm lanes for the traffic of government to move in.”
Questioning by the justices from the bench seemed to cut both ways, making it unclear which way they might be leaning. Much of their focus was on the role of the coal ash commission, whose work has been on hold since a three-judge panel ruled in McCrory’s favor in March. Justices pried at which branch of government the commission represented.
Defense attorneys said some of the coal ash commission’s powers are quasi-judicial, others are quasi-legislative, and some executive. But the power of appointments doesn’t fit into any of those functions; it’s just a way to fill an office, they said.
Justice Barbara Jackson suggested to the lawyer for Berger and Moore that his argument seemed to subvert the state’s administrative procedure act, which governs the rule-making authority of boards and commissions. “That’s a pretty large quantum shift, isn’t it?” she said.
Chief Justice Mark Martin told McCrory’s lawyer that if the governor got his way, that “would create quite a bit of disruption.”
Justice Paul Newby asked why McCrory didn’t simply veto the bill creating the coal ash commission if he believed it was unconstitutional, since he took an oath to uphold the Constitution. McCrory let it become law without his signature.
Wester said the governor thought it vital that other provisions in the bill protecting public health become law quickly, calling it an unfortunate trade-off.
The court is expected to issue a ruling in the case later this year.
An earlier version of this story incorrectly said John Wester was from Raleigh. He is a Charlotte attorney.