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State Supreme Court backs governors in commission appointments case

Saying that the General Assembly violated the separation of powers clause of the state constitution when it empowered lawmakers to make appointments to commissions that performed largely executive functions, the state Supreme Court today backed the governors who challenged what they called a usurpation of power by the legislature.

The battle between the branches of government came to a head in the fall of 2014 after lawmakers created the Coal Ash Commission, Oil & Gas Commission and Mining Commission and authorized the House speaker and Senate president to appoint most of the members on each.

Gov. Pat McCrory, joined by former governors Jim Hunt and Jim Martin, then filed suit against the speaker and president, alleging that lawmakers had overstepped their authority in limiting the governor’s appointments to commissions that functioned under the province of the executive branch.

But the legislative leaders claimed absolute authority to make those appointments, saying that the state constitution clearly gave them that power.

A three-judge panel ruled for the governors in March 2015, holding that state lawmakers had violated the separation of powers clause of the state constitution.

In a 6-1 decision written by Chief Justice Mark Martin, the court ruled that the statutes in question did not violate appointment provisions of the state constitution but did nonetheless extend executive functions to the legislature in violation of the separation of powers clause.

Martin wrote:

When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints. When those officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented in any area of the law that the commission regulates. As a result, the Governor cannot take care that the laws are faithfully executed in that area. The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.

In a dissenting opinion, Justice Paul Newby wrote that the General Assembly acted well within its authority when it enacted the challenged statutes.

Read the full decision here.

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