While litigation involving a transfer of power from the State Board of Education to Superintendent Mark Johnson, a three-judge appellate panel has ruled in another case that rules made by the Board are subject to statutes enacted by the General Assembly.
The Board sued the state of North Carolina and the NC Rules Review Commission over a separation of powers argument: review of the Board by the Commission encroaches on its constitutional authority.
Judge Lucy Inman wrote in the opinion , released Tuesday, that the appeal of a lower court’s ruling in favor of the Board presents a question of first impression.
“Does the North Carolina Rules Review Commission, an agency created by the General Assembly, have the authority to review and approve rules made by the North Carolina State Board of Education, whose authority is derived from the North Carolina Constitution?” she wrote. “For the reasons explained in this opinion, we conclude the answer is yes.”
The Rules Commission was created in 1986 and the Board took legal action in November 2014.
“The Board’s complaint sought a declaratory judgment preventing the Commission from exercising any authority over the Board and, specifically, controlling the Board’s enactment of rules,” the appeal states.
In Inman’s ruling, she gives historical context about the Board, its creation and evolution. It helps explain how the court reached its conclusion.
“We hold that the review and approval authority delegated to the Commission is an appropriate delegable power and that the General Assembly has adequately directed the Commission’s review of the Board’s proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the APA,” the appeal states. “By providing adequate guidelines for rules review, the General Assembly has ensured that the Commission’s authority as it relates to the rules promulgated by the Board is not ‘arbitrary and unreasoned’ and is sufficiently defined to maintain the separation of powers required by our state constitution.”
Judge John Tyson dissented from Inman’s opinion, in which she was joined by Chief Judge Linda McGee.
“By establishing a Board of Education with the specific constitutional authority to promulgate its own rules and regulations, the framers of Article IX and the People, upon ratifying the Constitution, vested the authority to administer and supervise public education to the State Board, not the RRC,” Tyson wrote. “This intention is clearly set forth in the plain language of the Constitution in Article IX.”
That’s an argument the Board’s counsel has used to oppose the transfer of their power to Johnson. Johnson’s attorneys have said that the General Assembly has the power to transfer that power.
A three-judge Superior Court panel sided with Johnson but an appeal is pending  at the state Court of Appeals. It’s expected to go to the state Supreme Court.