State ex rel. McCrory v. Berger , 368 N.C. 633 ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 113A15
Filed 29 January 2016
STATE OF NORTH CAROLINA, upon the relation of PATRICK L. McCRORY,
individually and in his official capacity as Governor of the State of North Carolina;
JAMES B. HUNT, JR.; and JAMES G. MARTIN
v.
PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North
Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the
North Carolina House of Representatives; and, in their official capacities as
members of the Coal Ash Management Commission, HARRELL JAMISON AUTEN
III, TIM L. BENNETT, D. ALLEN HAYES, SCOTT FLANAGAN, RAJARAM
JANARDHANAM, and LISA D. RIEGEL
Appeal pursuant to N.C.G.S. § 7A-27(a1) from a decision and judgment entered
on 16 March 2015 by a three-judge panel of the Superior Court, Wake County,
appointed under N.C.G.S. § 1-267.1(b1). Heard in the Supreme Court on 30 June
2015.
Robinson, Bradshaw & Hinson, P.A., by John R. Wester, David C. Wright, III,
and Andrew A. Kasper, for plaintiff-appellee Governors; and Office of General
Counsel to the Governor, by Robert C. Stephens, Jr., General Counsel, and
Jonathan R. Harris, Associate General Counsel, for Governor McCrory,
plaintiff-appellee.
K&L Gates LLP, by John H. Culver III and Brian C. Fork, for legislator
defendant-appellants; and Roy Cooper, Attorney General, by Alexander McC.
Peters, Senior Deputy Attorney General, and Melissa L. Trippe and Ann W.
Matthews, Special Deputy Attorneys General, for Coal Ash Management
Commission defendant-appellants.
Arch T. Allen III, pro se, amicus curiae.
Troutman Sanders LLP, by Christopher G. Browning, Jr. and C. Elizabeth
Hall, for Carolinas AGC (Associated General Contractors), Employers Coalition
of North Carolina, National Federation of Independent Business Small
Business Legal Center, North Carolina Chamber, North Carolina Forestry
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
Association, North Carolina Home Builders Association, North Carolina
Manufacturers Alliance, and North Carolina Retail Merchants Association,
amici curiae.
Blanchard, Miller, Lewis & Isley, P.A., by E. Hardy Lewis, for North Carolina
Council of State members Cherie Berry, Commissioner of Labor; Wayne
Goodwin, Commissioner of Insurance; Steve Troxler, Commissioner of
Agriculture; and Beth A. Wood, State Auditor, amici curiae.
Campbell Shatley, PLLC, by Robert F. Orr, for North Carolina Institute for
Constitutional Law, amicus curiae.
MARTIN, Chief Justice.
Our founders believed that separating the legislative, executive, and judicial
powers of state government was necessary for the preservation of liberty. The
Constitution of North Carolina therefore vests each of these powers in a different
branch of government and declares that “[t]he legislative, executive, and supreme
judicial powers of the State government shall be forever separate and distinct from
each other.” N.C. Const. art. I, § 6.
Each branch of government has a distinctive purpose. The General Assembly,
which comprises the legislative branch, enacts laws that “protect or promote the
health, morals, order, safety, and general welfare of society.” State v. Ballance,
229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949); see also N.C. Const. art. II, §§ 1, 20.
The executive branch, which the Governor leads, faithfully executes, or gives effect
to, these laws. See N.C. Const. art. III, §§ 1, 5(4). The judicial branch interprets the
-2-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
laws and, through its power of judicial review, determines whether they comply with
the constitution. See id. art. IV, § 1; Bayard v. Singleton, 1 N.C. 5, 6-7 (1787).
The constitution also incorporates a system of checks and balances that gives
each branch some control over the others. For example, the Lieutenant Governor is
the President of the Senate and casts tie-breaking votes when the Senate is equally
divided. N.C. Const. art. III, § 6. At the same time, the General Assembly can assign
duties to the Lieutenant Governor. Id. Still, the separation of powers clause requires
that, as the three branches of government carry out their duties, one branch will not
prevent another branch from performing its core functions. See Hart v. State,
368 N.C. 122, 126-27, 774 S.E.2d 281, 285 (2015).
In this case, plaintiffs challenge legislation that authorizes the General
Assembly to appoint a majority of the voting members of three administrative
commissions. Plaintiffs contend that, by giving itself the power to appoint
commission members, the General Assembly has usurped Governor McCrory’s
constitutional appointment power and interfered with his ability to take care that the
laws are faithfully executed. Plaintiffs’ contentions raise two important questions
about the function and structure of state government: (1) Does the appointments
clause in Article III, Section 5(8) of the state constitution prohibit the General
Assembly from appointing statutory officers to administrative commissions? (2) If
not, do the specific appointment provisions challenged in this case violate the
separation of powers clause in Article I, Section 6?
-3-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
We hold that, while the appointments clause itself places no restrictions on the
General Assembly’s ability to appoint statutory officers, the challenged provisions
violate the separation of powers clause. In short, the legislative branch has exerted
too much control over commissions that have final executive authority. By doing so,
it has prevented the Governor from performing his express constitutional duty to take
care that the laws are faithfully executed.
I
The Energy Modernization Act and the Coal Ash Management Act of 2014
create three administrative commissions that are housed in the executive branch of
government: the Oil and Gas Commission, the Mining Commission, and the Coal Ash
Management Commission. See generally N.C.G.S. §§ 143B-290 to -293.6 (2014)
(effective July 31, 2015); id. §§ 130A-309.200 to -309.231 (2014). The Acts also specify
how commission members will be appointed and how they may be removed. See
generally id.
The Oil and Gas Commission is housed in the Department of Environment and
Natural Resources (DENR)1 and has the power to promulgate rules, make
1 The Department of Environment and Natural Resources is now called the
Department of Environmental Quality. Current Operations and Capital Improvements
Appropriations Act of 2015, ch. 241, sec. 14.30(c), 2015-5 N.C. Adv. Legis. Serv. 38, 322
(LexisNexis). Because the Energy Modernization Act and the Coal Ash Management Act
predate this name change and refer to the department as the Department of Environment
and Natural Resources, we will continue to use this superseded name.
-4-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
determinations, and issue orders consistent with the Oil and Gas Conservation Act.
N.C.G.S. § 143B-293.1. The commission has nine members: three appointed by the
Governor and six appointed by the General Assembly. Id. § 143B-293.2(a1). Each
member serves a three-year term. Id. § 143B-293.2(b). A majority of the members
constitutes a quorum for the transaction of business. Id. § 143B-293.2(e). The
commission elects one of its members to serve as chair. Id. § 143B-293.4. The chair
appoints members of the commission to a Committee on Civil Penalty Remissions,
which has the power to remit civil environmental penalties that DENR imposes. Id.
§ 143B-293.6(b), (c). The Governor may remove any member of the commission for
misfeasance, malfeasance, or nonfeasance. Id. § 143B-293.2(c)(1).
Like the Oil and Gas Commission, the Mining Commission is housed in DENR.
Id. § 143B-290. The Mining Commission has the power to promulgate mining rules
and affirm, modify, or overrule permit decisions that DENR makes. Id.
§ 143B-290(1)(c)-(e). This commission has eight members: two appointed by the
Governor; four appointed by the General Assembly; the chair of the North Carolina
State University Minerals Research Laboratory Advisory Committee; and the State
Geologist, who is ex officio and nonvoting. Id. § 143B-291(a1). Each member serves
a six-year term. Id. § 143B-291(b). As with the Oil and Gas Commission, a majority
of the Mining Commission’s members constitutes a quorum for the transaction of
business, and the Governor may remove any member for misfeasance, malfeasance,
or nonfeasance. Id. § 143B-291(d), (f).
-5-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
The Coal Ash Management Commission is administratively located in the
Division of Emergency Management of the Department of Public Safety but is
expressly required to exercise its powers and duties “independently,” without “the
supervision, direction, or control of the Division or Department.”
Id. § 130A-309.202(n). This commission has the power to review and approve coal
ash surface impoundment classifications and closure plans that DENR proposes.
Id. § 130A-309.202(f); see also id. §§ 130A-290(a)(4a), -309.213, -309.214. The
commission has nine members: three appointed by the Governor and six appointed
by the General Assembly. Id. § 130A-309.202(b). Each member serves a six-year
term. Id. § 130A-309.202(o). Five members constitute a quorum for the transaction
of business. Id. § 130A-309.202(h). The Governor appoints the chair of the Coal Ash
Management Commission from among the nine members, and that member serves
as chair at the pleasure of the Governor. Id. § 130A-309.202(c). As with the other
two commissions, the Governor may remove any member of the Coal Ash
Management Commission for misfeasance, malfeasance, or nonfeasance. Id.
§ 130A-309.202(e).
On 13 November 2014, plaintiffs filed a complaint in Superior Court, Wake
County, that challenged the constitutionality of certain provisions in the Acts.
Plaintiffs argued that the provisions authorizing the General Assembly to appoint
members to the commissions—specifically, N.C.G.S. §§ 130A-309.202(b), 143B-
291(a1), and 143B-293.2(a1)—violate the appointments clause in Article III,
-6-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
Section 5(8) and the separation of powers clause in Article I, Section 6. Plaintiffs also
argued that the provision requiring the Coal Ash Management Commission to
exercise its powers and duties independently of the Division of Emergency
Management and the Department of Public Safety, see N.C.G.S. § 130A-309.202(n),
violates Article I, Section 6 and Article III, Sections 1 and 5(4). Plaintiffs sought a
declaration that the challenged provisions are unconstitutional.2 In addition, because
the General Assembly had already made appointments to the Coal Ash Management
Commission, plaintiffs requested that those appointees be removed.
On 16 March 2015, a three-judge panel of the superior court determined that
the challenged appointment provisions did not violate the appointments clause but
did violate the separation of powers clause. The panel also determined that the Coal
Ash Management Commission’s independent status violated the separation of powers
clause. Finally, the panel dismissed without prejudice plaintiffs’ action to remove
Coal Ash Management Commission appointees. Defendants appealed directly to this
Court pursuant to N.C.G.S. § 7A-27(a1) (2014).
2 Plaintiffs also sought a declaration that a provision of the Coal Ash Management Act
requiring the Governor to issue an executive order, see N.C.G.S. § 130A-309.202(j) (2014)
(repealed 2015), was unconstitutional. The three-judge panel granted declaratory relief to
plaintiffs on this issue, and the General Assembly subsequently repealed the provision. Act
of Apr. 16, 2015, ch. 9, sec. 1.1, 2015-1 N.C. Adv. Legis. Serv. 63, 65 (LexisNexis). Defendants
did not appeal this issue and, in any event, it is moot.
-7-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
II
This Court construes and applies the provisions of the Constitution of North
Carolina with finality. Hart, 368 N.C. at 130, 774 S.E.2d at 287; State ex rel. Martin
v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 479 (1989). We review constitutional
questions de novo. Piedmont Triad Reg’l Water Auth. v. Sumner Hills, Inc., 353 N.C.
343, 348, 543 S.E.2d 844, 848 (2001). In exercising de novo review, we presume that
laws enacted by the General Assembly are constitutional, and we will not declare a
law invalid unless we determine that it is unconstitutional beyond reasonable doubt.
Hart, 368 N.C. at 131, 774 S.E.2d at 287-88; Baker v. Martin, 330 N.C. 331, 334-35,
410 S.E.2d 887, 889 (1991). In other words, the constitutional violation must be plain
and clear. Preston, 325 N.C. at 449, 385 S.E.2d at 478. To determine whether the
violation is plain and clear, we look to the text of the constitution, the historical
context in which the people of North Carolina adopted the applicable constitutional
provision, and our precedents. See id. at 449, 385 S.E.2d at 479 (“In interpreting our
Constitution—as in interpreting a statute—where the meaning is clear from the
words used, we will not search for a meaning elsewhere.”); Sneed v. Greensboro City
Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980) (“Inquiry must be had
into the history of the questioned provision and its antecedents, the conditions that
existed prior to its enactment, and the purposes sought to be accomplished by its
promulgation.”); Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918,
921 (1932) (“Likewise, we may have recourse to former decisions, among which are
-8-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
several dealing with the subject under consideration.”). With these principles in
mind, we now examine the two questions raised by defendants’ appeal.
A
We first address whether the appointments clause in Article III, Section 5(8)
prohibits the General Assembly from appointing statutory officers. This clause
states: “The Governor shall nominate and by and with the advice and consent of a
majority of the Senators appoint all officers whose appointments are not otherwise
provided for.” N.C. Const. art. III, § 5(8). Plaintiffs contend that the clause gives the
Governor broad power to appoint both constitutional and statutory officers. In
defendants’ view, the appointments clause implicitly gives the appointment power to
the General Assembly. They cite the maxim that all power not expressly limited by
the people in the constitution remains with the people and “is exercised through the
General Assembly, which functions as the arm of the electorate.” Pope v. Easley,
354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam). Based on our review of
the text of the appointments clause, its historical development, and our precedents
interpreting it, we conclude that this clause gives the Governor the exclusive
authority to appoint constitutional officers whose appointments are not otherwise
-9-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
provided for by the constitution. The appointments clause does not prohibit the
General Assembly from appointing statutory officers to administrative commissions.3
The Constitution of 1776 did not have an analogue to the appointments clause.
That constitution had specific provisions that expressly authorized the General
Assembly to appoint certain officers. These officers included the Governor, N.C.
Const. of 1776, § 15; all seven members of the Council of State, id. § 16; and the judges
of the Supreme Courts of Law and Equity, id. § 13. As a result, the General Assembly
was the general appointing authority under our state’s first constitution. People ex
rel. Nichols v. McKee, 68 N.C. 429, 431-32 (1873).
In 1835, the people ratified a constitutional amendment that gave them the
power to directly elect the Governor. N.C. Const. of 1776, Amends. of 1835, art. II,
§ 1. When they ratified the Constitution of 1868, they then shifted appointment
power from the General Assembly to the Governor. McKee, 68 N.C. at 433. The
Constitution of 1868 removed all of the provisions that had authorized the General
3 Our interpretation of the appointments clause in the state constitution differs from
the United States Supreme Court’s interpretation of the federal constitution’s appointments
clause. Under the latter clause, “[p]rincipal officers are selected by the President with the
advice and consent of the Senate,” and Congress may allow “[i]nferior officers . . . to be
appointed by the President alone, by the heads of departments, or by the Judiciary.”
Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam); see U.S. Const. art. II, § 2, cl. 2. The
text and drafting history of the federal clause indicate that the framers of the United States
Constitution deliberately denied Congress “any authority itself to appoint those who were
‘Officers of the United States.’ ” Buckley, 424 U.S. at 129. Congress therefore may not vest
the appointment of any officers of the United States with itself or its own officers. Id. at 127.
North Carolina’s appointments clause, however, differs in both text and history.
-10-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
Assembly to appoint executive and judicial officers.4 Instead, it introduced the
appointments clause, which stated:
The Governor shall nominate, and, by and with the advice
and consent of a majority of the Senators elect, appoint, all
officers whose offices are established by this Constitution,
or which shall be created by law, and whose appointments
are not otherwise provided for, and no such officer shall be
appointed or elected by the General Assembly.
N.C. Const. of 1868, art. III, § 10.
Shortly after the Constitution of 1868 was ratified, this Court stated that the
phrase “whose appointments are not otherwise provided for” referred to those
appointments not otherwise provided for by the constitution itself. People ex rel.
Welker v. Bledsoe, 68 N.C. 457, 462-64 (1873); State ex rel. Clark v. Stanley,
66 N.C. 59, 63 (1872). By 1875, it was “settled that the words ‘otherwise provided for’
mean[t] otherwise provided for by the Constitution.” People ex rel. Cloud v. Wilson,
72 N.C. 155, 158 (1875) (citing Clark and Welker); accord Trs. of Univ. of N.C. v.
McIver, 72 N.C. 76, 83 (1875). This Court also observed that the Constitution of 1868
had “superadded” the phrase “and no such officer shall be appointed or elected by the
General Assembly” to ensure that the General Assembly could not appoint
constitutional or statutory officers, except where the constitution expressly provided
for it. Clark, 66 N.C. at 63; see also Welker, 68 N.C. at 463-64; McKee, 68 N.C. at 432-
The Constitution of 1868 did give the General Assembly the power to appoint
4
members of the Board of Public Charities. See N.C. Const. of 1868, art. XI, § 7.
-11-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
34. Under the original version of the appointments clause, then, the Governor had
the exclusive power to appoint all constitutional and statutory officers unless the
constitution itself provided otherwise. See also State ex rel. Salisbury v. Croom,
167 N.C. 223, 226, 83 S.E. 354, 354-55 (1914); State Prison v. Day, 124 N.C. 362,
366-67, 32 S.E. 748, 749 (1899).
This expansive shift in the appointment power was “not . . . satisfactory to the
dominant sentiment in the State,” Salisbury, 167 N.C. at 226, 83 S.E. at 355, and was
short-lived. In 1876, the people ratified a set of thirty constitutional amendments.
John L. Sanders, Our Constitutions: A Historical Perspective, in Elaine F. Marshall,
N.C. Dep’t of Sec’y of State, North Carolina Manual 2011-2012 73, 76,
https://www.secretary.state.nc.us/Publications/manual.aspx. These amendments
restored much of the power that the General Assembly had lost in the Constitution
of 1868. Id. at 77. One amendment modified the appointments clause, which now
stated:
The Governor shall nominate, and by and with the advice
and consent of a majority of the Senators elect, appoint all
officers, whose offices are established by this Constitution,
and whose appointments are not otherwise provided for.
N.C. Const. of 1868, art. III, § 10 (1876). We have indicated that the people
purposefully deleted the phrases “or which shall be created by law” and “and no such
officer shall be appointed or elected by the General Assembly” to restore the General
Assembly’s ability to appoint statutory officers. See State ex rel. Cherry v. Burns,
-12-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
124 N.C. 761, 765, 33 S.E. 136, 137 (1899). In other words, the amended clause no
longer gave the Governor the constitutional power to appoint statutory officers. Id.;
see also Salisbury, 167 N.C. at 226, 83 S.E. at 355 (“It will thus be noted that the
inhibition on the legislative power to appoint to office is removed and the inherent
power of the Governor to appoint is restricted to constitutional offices and where the
Constitution itself so provides.”). But the amendment did not change the language
of the phrase “whose appointments are not otherwise provided for,” even though it
was ratified in the wake of this Court’s authoritative and then-recent
pronouncements about that phrase’s meaning. See Welker, 68 N.C. at 462-64; Clark,
66 N.C. at 63. That phrase continued to mean “provided [for] by the constitution.”
Cherry, 124 N.C. at 764, 33 S.E. at 137.
In sum, this amendment to the appointments clause authorized the Governor
to appoint only constitutional officers whose appointments were not otherwise
provided for by the constitution. Because the scope of the appointments clause after
1876 no longer encompassed statutory officers, the clause did not prohibit the General
Assembly from appointing them. Salisbury, 167 N.C. at 226, 83 S.E. at 355; Cherry,
124 N.C. at 765, 33 S.E. at 137; Cunningham v. Sprinkle, 124 N.C. 638, 641,
33 S.E. 138, 138-39 (1899); Day, 124 N.C. at 366-67, 32 S.E. at 749; State ex rel. Ewart
v. Jones, 116 N.C. 570, 571-74, 21 S.E. 787, 787-88 (1895).
-13-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
The appointments clause did not change again until the people adopted the
current version of the clause in the Constitution of 1971. The current appointments
clause states:
Appointments. The Governor shall nominate and by and
with the advice and consent of a majority of the Senators
appoint all officers whose appointments are not otherwise
provided for.
N.C. Const. art. III, § 5(8). When the people enacted the current version of the clause,
they deleted the phrase “whose offices are established by this Constitution.” But, as
in 1876, they did not disturb the phrase “whose appointments are not otherwise
provided for.” Compare N.C. Const. of 1868, art. III, § 10 (1876), with N.C. Const.
art. III, § 5(8).
We conclude that the latter phrase still means “whose appointments are not
otherwise provided for by the Constitution.” Welker, 68 N.C. at 463 (emphasis added).
To conclude otherwise would imply that the drafters of the Constitution of 1971
intended to change the meaning of this phrase while using the same words. That
inference would not be justified, especially since this Court had already given the
phrase a settled construction before 1971.
We also conclude that the omission of the phrase “whose offices are established
by this Constitution” in the current version of the appointments clause does not affect
the clause’s meaning. At first glance, this omission seems to restore the Governor’s
exclusive power to appoint statutory officers, whose offices are not established by the
-14-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
constitution. But the text of the current clause, as a whole, is unclear. Just as the
phrase “whose appointments are not otherwise provided for” refers only to those
appointments not otherwise provided for in the constitution itself, the phrase “all
officers” might refer only to constitutional officers. The report of the North Carolina
State Constitution Study Commission that drafted and proposed the Constitution of
1971 resolves this ambiguity. Cf. Sneed, 299 N.C. at 615-16, 264 S.E.2d at 112
(relying on this report to discern the meaning of another provision in the current
constitution). That report shows that the current appointments clause does not
enlarge the Governor’s appointment power.
According to the report, the Study Commission did not intend for the proposed
constitution’s revisions “to bring about any fundamental change in the power of state
and local government or the distribution of that power.” Report of the North Carolina
State Constitution Study Commission 4 (1968). The report explains that the proposed
constitution contained “editorial pruning, rearranging, rephrasing, and modest
amendments,” but that the Study Commission had reserved its “more substantial
changes” for a separate set of amendments that it was proposing along with the
proposed constitution. Id. at 29. And the report notes that “[a]bbreviation of the
constitution for brevity’s sake . . . has been an incident of [the Study Commission’s]
work, since the great majority of the changes embraced in the proposed constitution
take the form of deletions of or contractions in language.” Id.
-15-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
The report then addresses the proposed changes to Article III specifically. It
states that, although the Study Commission “reorganized and abbreviated” Article
III “by the omission of repetitive, legislative-type, and executed provisions,” the
proposed constitution “contains few substantive changes of note” to that Article. Id.
at 31. The report goes on to discuss these few substantive changes but does not
mention the appointments clause or anything about the appointment power. See id.
The report also states that the Study Commission was “recommending several
changes that affect the executive branch of state government and especially the
Governor,” but that “these [changes] are of sufficient moment that they take the form
of separate amendments.” Id. And the Study Commission did propose a separate
amendment that would have made significant substantive changes to the
appointments clause. See id. at 47. The amendment would have given the Governor
the power to “appoint and . . . remove the heads of all administrative departments
and agencies of the State,” and would have stated that “[a]ll other officers in the
administrative service of the State shall be appointed and may be removed as
provided by law.” Id. (quoting the Study Commission’s proposed Amendment No. 5).
Unlike the “general editorial revision” that the adopted language embodied, this
amendment entailed “a substantive constitutional change of such importance that . . .
the voters should have a chance to act upon it independently.” Id. at 4. The House
Committee on Constitutional Amendments gave the amendment an unfavorable
report, however, and the General Assembly did not submit it to the people for
-16-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
ratification. See N.C. House Journal, Reg. Sess. 1969, at 518, 520 (recording the
introduction of the proposed amendment in H.B. 880); id. at 755, 757 (recording the
unfavorable committee report on H.B. 880; no further action noted).
Given how careful the Study Commission was to identify any substantive
changes in the proposed constitution—and given that the Study Commission
proposed major substantive changes by separate amendments—it would be
unreasonable to say that deleting the phrase “whose offices are established by this
Constitution” dramatically changed the appointments clause’s meaning. The
Governor’s power to appoint officers under the clause thus continues to extend only
to constitutional officers.
As a result, the appointments clause means the same thing now that it did in
1876. It authorizes the Governor to appoint all constitutional officers whose
appointments are not otherwise provided for by the constitution. It follows that the
appointments clause does not prohibit the General Assembly from appointing
statutory officers to administrative commissions.
We now turn to plaintiffs’ separation of powers challenge.
B
Plaintiffs argue that the challenged provisions violate the separation of powers
clause in Article I, Section 6 by preventing the Governor from performing his
constitutional duty under Article III, Section 5(4). To address an Article I, Section 6
-17-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
challenge, we necessarily examine the text of the constitution, our constitutional
history, and this Court’s separation of powers precedents.
The separation of powers clause declares that “[t]he legislative, executive, and
supreme judicial powers of the State government shall be forever separate and
distinct from each other.” N.C. Const. art. I, § 6. This principle is fundamental to
our form of government and has appeared in each of our state’s constitutions. See id.;
N.C. Const. of 1868, art. I, § 8; N.C. Const. of 1776, Declaration of Rights § IV;
see also State ex rel. Wallace v. Bone, 304 N.C. 591, 595-601, 596 n.2, 286 S.E.2d 79,
81-84, 82 n.2 (1982).
Although the text of the separation of powers clause has changed very little
since 1776, the powers that the current constitution allocates to the legislative and
executive branches have changed significantly. In particular, the General Assembly
lost the power to appoint the Governor in 1835, see N.C. Const. of 1776, Amends.
of 1835, art. II, § 1; lost the power to appoint the Council of State in 1868, see N.C.
Const. of 1868, art. III, §§ 1, 14; and has never regained the full scope of appointment
power that it had in 1776. And unlike the Constitution of 1776, our subsequent state
constitutions have given the Governor the duty to take care that the laws are
faithfully executed. See N.C. Const. art. III, § 5(4); N.C. Const. of 1868, art. III, § 7.
Because the “powers” that must be kept “forever separate and distinct from each
other,” N.C. Const. art. I, § 6, are different in the current constitution than they were
-18-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
in the original constitution, the separation of powers clause applies differently as
well.
The clearest violation of the separation of powers clause occurs when one
branch exercises power that the constitution vests exclusively in another branch.
See Houston v. Bogle, 32 N.C. 496, 503-04 (1849). Other violations are more nuanced,
such as when the actions of one branch prevent another branch from performing its
constitutional duties. See Bacon v. Lee, 353 N.C. 696, 715, 549 S.E.2d 840, 853,
cert. denied, 533 U.S. 975 (2001). When we assess a separation of powers challenge
that implicates the Governor’s constitutional authority, we must determine whether
the actions of a coordinate branch “unreasonably disrupt a core power of the
executive.” Id. at 717, 549 S.E.2d at 854; see also In re Alamance Cty. Ct. Facils.,
329 N.C. 84, 100-01, 405 S.E.2d 125, 133 (1991) (stating that one branch “must
minimize the encroachment” on another branch “in appearance and in fact”). As part
of the inquiry in this case, we must also consider whether the General Assembly has
“retain[ed] some control” over the executive branch’s functions. Wallace, 304 N.C. at
608, 286 S.E.2d at 88.
In the current constitution, Article III, Section 5(4) gives the Governor the duty
to “take care that the laws be faithfully executed.” The challenged legislation
implicates this constitutional duty because, as the three-judge panel correctly
observed, all three commissions “are primarily administrative or executive in
character,” and because they have final authority over executive branch decisions.
-19-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
See N.C.G.S. § 130A-309.202(f) (authorizing the Coal Ash Management Commission
to overrule DENR classifications and closure plans for coal ash surface
impoundments); id. § 143B-290 (authorizing the Mining Commission to overrule
certain permit decisions that DENR makes); id. § 143B-293.6(b) (authorizing a
committee within the Oil and Gas Commission to remit civil environmental penalties
that DENR imposes). In light of the final executive authority that these three
commissions possess, the Governor must have enough control over them to perform
his constitutional duty.5
The degree of control that the Governor has over the three commissions
depends on his ability to appoint the commissioners, to supervise their day-to-day
activities, and to remove them from office. The legislation that plaintiffs challenge
here limits each of these methods of control. It gives the General Assembly the power
to appoint a majority of each commission’s voting members and gives the Governor
only two or three appointees per commission. See id. § 130A-309.202(b); id.
§§ 143B-291(a1), -293.2(a1). It also gives each commission final executive authority
5 Our opinion takes no position on how the separation of powers clause applies to those
executive departments that are headed by the independently elected members of the Council
of State. See N.C. Const. art. III, § 7 (providing for the election of the Secretary of State,
Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner
of Labor, Commissioner of Agriculture, and Commissioner of Insurance). The facts of this
case concern DENR, which unquestionably falls under the Governor’s purview. See N.C.G.S.
§ 143B-6(6) (2013) (identifying DENR as a principal department); id. § 143B-9 (2013) (“The
head of each principal State department, except those departments headed by popularly
elected officers, shall be appointed by the Governor and serve at his pleasure.”).
-20-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
over certain DENR decisions, sapping the power of a principal administrative
department over which the Governor has greater control. See id. § 130A-309.202(f);
id. §§ 143B-290(1)(c), -293.6; see also id. §§ 143B-9, -6(6). It insulates the Coal Ash
Management Commission from executive branch control even more by requiring the
commission to exercise its powers and duties “independently,” without the
“supervision, direction, or control” of the Division of Emergency Management or the
Department of Public Safety. Id. § 130A-309.202(n). And the challenged legislation
sharply constrains the Governor’s power to remove members of any of the three
commissions, allowing him to do so only for cause. Id. § 130A-309.202(e); id.
§§ 143B-291(d), -293.2(c)(1).
We cannot adopt a categorical rule that would resolve every separation of
powers challenge to the legislative appointment of executive officers. Because each
statutory scheme will vary the degree of control that legislative appointment
provisions confer on the General Assembly, we must resolve each challenge by
carefully examining its specific factual and legal context. While the General
Assembly’s ability to appoint an officer obviously does not give it the power to control
what that officer does, we must examine the degree of control that the challenged
legislation allows the General Assembly to exert over the execution of the laws.
Using that approach here, we hold that the challenged appointment provisions
violate the separation of powers clause. When the General Assembly appoints
executive officers that the Governor has little power to remove, it can appoint them
-21-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
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. See Bacon,
353 N.C. at 717-18, 549 S.E.2d at 854; Wallace, 304 N.C. at 608, 286 S.E.2d at 88;
see also N.C. Const. art. III, § 5(4).6
Under the rule that defendants advance, the General Assembly could appoint
every statutory officer to every administrative body, even those with final executive
authority, and could prohibit the Governor from having any power to remove those
6 Because we hold that the challenged appointment provisions violate the separation
of powers clause, we can no longer address plaintiffs’ separate claim that the Coal Ash
Management Commission’s statutory mandate to act “independently” of the Division of
Emergency Management and the Department of Public Safety violates that clause as well.
The facts that existed when plaintiffs brought their claim—namely, that the Coal Ash
Management Commission has final executive authority, that the Governor has limited
removal power, and that the General Assembly appoints a majority of its voting members—
no longer exist now that the challenged appointment provisions have been invalidated. As a
result, plaintiffs’ claim under the current statutory scheme is moot. We therefore vacate the
portion of the three-judge panel’s decision that held N.C.G.S. § 130A-309.202(n)
unconstitutional.
-22-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
officers. This rule would nullify the separation of powers clause, at least as it
pertained to the General Assembly’s ability to control the executive branch.
Our appointment cases do not embrace defendants’ proposed rule. Many do
not even involve separation of powers challenges. See, e.g., Salisbury, 167 N.C. at
227, 83 S.E. at 355 (interpreting two statutes to determine that the Governor’s recess
appointment without Senate confirmation was valid only until the Senate reconvened
and confirmed a new appointee); Cherry, 124 N.C. at 764-65, 33 S.E. at 137
(concluding that the “keeper of the capitol” was outside the scope of the appointments
clause because it was not a constitutional office); Ewart, 116 N.C. at 573-74, 21 S.E.
at 788 (determining that the General Assembly’s creation of a new office did not
create a “vacancy” in that office).
Those appointment cases that do involve separation of powers challenges do
not establish the proposed rule either. State ex rel. Martin v. Melott does not supply
a majority rationale that supports its judgment, so it does not establish any
separation of powers rule at all. Compare 320 N.C. 518, 523-24, 359 S.E.2d 783, 786-
87 (1987) (plurality opinion), with id. at 525-28, 359 S.E.2d at 788-89 (Meyer, J.,
concurring). In Trustees of the University of North Carolina v. McIver, where there
was a clear majority, this Court held that the General Assembly could elect trustees
of the University of North Carolina. There, a constitutional amendment separate
from the appointments clause gave the General Assembly the “unlimited power” to
determine who would elect the trustees. 72 N.C. at 83-85. The Court concluded that
-23-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
this absolute discretion necessarily gave the General Assembly the power to elect
them itself. See id. at 81-87. But that holding has no effect on this case because the
constitutional provision in question—which pertained only to the University of North
Carolina and its trustees—does not apply here. In Cunningham v. Sprinkle, a
constitutional amendment that directed the General Assembly to establish the
Department of Agriculture likewise gave the General Assembly “the largest latitude
of regulation” in establishing that department. 124 N.C. at 641-42, 33 S.E. at 139.
The provision in Cunningham also does not apply here.
Notably, Cunningham and McIver both conclude that appointing statutory
officers is not an exclusively executive prerogative. See Cunningham, 124 N.C. at
643, 33 S.E. at 139; McIver, 72 N.C. at 85. We agree, and do not deny that the General
Assembly may generally appoint statutory officers to administrative commissions.7
We merely deny that it may appoint them in every instance and under all
circumstances.
III
“A frequent recurrence to fundamental principles is absolutely necessary to
preserve the blessings of liberty,” N.C. Const. art. I, § 35, and “the principle of
7 As a corollary, the General Assembly may have broader latitude than it does here
when it appoints members to commissions whose functions are different from those of the
commissions in the present case, such as the Rules Review Commission. See N.C.G.S. § 143B-
30.1; id. §§ 150B-2(1d), -21.1 to -21.14 (2013).
-24-
STATE EX REL. MCCRORY V. BERGER
Opinion of the Court
separation of powers is a cornerstone of our state and federal governments,” Wallace,
304 N.C. at 601, 286 S.E.2d at 84. The appointments clause does not prohibit the
General Assembly from appointing statutory officers, and the General Assembly can
appoint them in many instances. But the challenged appointment provisions, in their
statutory context, prevent the Governor from performing his constitutional duty to
take care that the laws are faithfully executed. By doing so, these provisions violate
the separation of powers clause.
We therefore modify and affirm the decision of the three-judge superior court
panel in part and vacate it in part.
MODIFIED AND AFFIRMED IN PART; VACATED IN PART.
Justice NEWBY concurring part and dissenting in part.
This case presents the issue of whether the General Assembly has the
constitutional power to fill a majority of positions on executive commissions it creates.
Unlike the Federal Constitution, the state constitution is not an express grant of
power but a limitation on power. All power not expressly granted to the federal
government or limited by the constitution resides in the people and is exercised
through the General Assembly. Since our original Constitution of 1776, except for a
short time by explicit limitation, the General Assembly has had the constitutional
authority to provide for the filling of statutory executive positions it creates. As an
-25-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
exercise of the General Assembly’s lawmaking power, this appointment authority,
both constitutionally prescribed and jurisprudentially recognized, does not implicate
separation of powers because under our jurisprudence the authority to appoint the
official has never been deemed the power to control the appointee. Our state’s
constitutional text and history and this Court’s precedent demonstrate that when the
legislature statutorily enables itself to select the official, it is simply filling the
position and not controlling the appointee.8 Because the statutes at issue here are
constitutional, I must respectfully dissent in part.
The idea of one branch of government, the judiciary, preventing another
branch of government, the legislature, through which the people act, from exercising
its power is the most serious of judicial considerations. See Hoke v. Henderson, 15
N.C. (4 Dev.) 1, 8 (1833) (“[T]he exercise of [judicial review] is the gravest duty of a
judge, and is always, as it ought to be, the result of the most careful, cautious, and
anxious deliberation.”), overruled in part on other grounds by Mial v. Ellington, 134
N.C. 131, 162, 46 S.E. 961, 971 (1903); Trs. of Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58,
8 “The true test is, where does the [state] Constitution lodge the power of electing the
various public agents of the government . . . .” Cunningham v. Sprinkle, 124 N.C. 638, 642,
33 S.E. 138, 139 (1899) (quoting Trs. of Univ. of N.C. v. McIver, 72 N.C. 76, 85 (1875)). This
precise question was asked and answered by this Court over 131 years ago. In rejecting the
argument that the General Assembly violated separation of powers by exercising
appointment authority over executive statutory offices, this Court stated that “a mode of
filling the offices created by law” is the prerogative of the General Assembly, acknowledging
that filling the position is not exercising the power of the position. Id. at 642-43, 33 S.E. at
139. (Of note, many of the older opinions referenced in this opinion use the term “selection”
when referring to a single appointing authority, such as the Governor, and “election” when
referring to multiple decisionmakers, such as the General Assembly.)
-26-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
89 (1805)9 (Hall, J., dissenting) (“A question of more importance than that arising in
this case [the constitutionality of a legislative act] cannot come before a court. . . .
[W]ell convinced, indeed, ought one person to be of another’s error of judgment . . .
when he reflects that each has given the same pledges to support the Constitution.”).
Since its inception, the judicial branch has exercised its implied constitutional power
of judicial review with “great reluctance,” Bayard v. Singleton, 1 N.C. (Mart.) 5, 6
(1787), recognizing that when it strikes down an act of the General Assembly, the
Court is preventing an act of the people themselves, see Baker v. Martin, 330 N.C.
331, 336-37, 410 S.E.2d 887, 890 (1991).
All political power resides in the people, N.C. Const. art. I, § 2, and the people
act through the General Assembly, State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21
S.E. 787, 787 (1895) (“[T]he sovereign power resides with the people and is exercised
by their representatives in the General Assembly.”). Unlike the Federal Constitution,
“a State Constitution is in no matter a grant of power. All power which is not limited
by the Constitution inheres in the people, and an act of a State legislature is legal
when the Constitution contains no prohibition against it.” McIntyre v. Clarkson, 254
N.C. 510, 515, 119 S.E.2d 888, 891 (1961) (quoting Lassiter v. Northampton Cty. Bd.
of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958), aff’d, 360 U.S. 45, 79 S.
9 The Court of Conference was the predecessor of this Court, which was statutorily
established in 1818. Walter Clark, History of the Supreme Court of North Carolina, in 177
N.C. 616, 619-20 (1919); see also Benzien’s Ex’rs v. Lenoir, 11 N.C. (4 Hawks) 403, 406
(1826) (noting “[t]he act of 1818, New Rev., ch. 962, constituting the present Supreme
Court” and discussing the Court of Conference).
-27-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Ct. 985, 3 L. Ed. 2d 1072 (1959)); see also Jones, 116 N.C. at 570-71, 21 S.E. at 787
(“The only limitation upon this power is found in the organic law, as declared by the
delegates of the people in convention assembled from time to time.”). The
presumptive constitutional power of the General Assembly to act is consistent with
the principle that a restriction on the General Assembly is in fact a restriction on the
people. Baker, 330 N.C. at 336, 410 S.E.2d at 890 (“[G]reat deference will be paid to
acts of the legislature—the agent of the people for enacting laws.” (quoting State ex
rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478 (1989))). Thus, this
Court presumes that legislation is constitutional, and a constitutional limitation
upon the General Assembly must be express and demonstrated beyond a reasonable
doubt. E.g., Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281, 284 (2015).
This rigorous standard for constitutional challenges ensures uniformity and
predictability in the application of our constitution. State v. Emery, 224 N.C. 581,
584, 31 S.E.2d 858, 861 (1944) (“[Constitutions] should receive a consistent and
uniform construction . . . even though circumstances may have so changed as to
render a different construction desirable.” (citing, inter alia, State ex rel. Att’y-Gen. v.
Knight, 169 N.C. 333, 85 S.E. 418 (1915))); see also Bacon v. Lee, 353 N.C. 696, 712,
549 S.E.2d 840, 851-52 (“A primary goal of adjudicatory proceedings is the uniform
application of law. In furtherance of this objective, courts generally consider
themselves bound by prior precedent, i.e., the doctrine of stare decisis.” (citations
omitted)), cert. denied, 533 U.S. 975, 122 S. Ct. 22, 150 L. Ed. 2d 804 (2001). Adhering
-28-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
to this fixed standard ensures that we remain true to the rule of law, the consistent
interpretation and application of the law. State v. Bell, 184 N.C. 701, 720, 115 S.E.
190, 199 (1922) (Stacy, J., dissenting) (“[T]here must be some uniformity in judicial
decisions . . . or else the law itself, the very chart by which we are sailing, will become
as unstable and uncertain as the shifting sands of the sea . . . .”).
Under a proper application of these foundational principles, the constitutional
challenge here cannot surmount the high bar imposed by the presumption of
constitutionality given to legislative acts. A clear understanding of the
constitutionally prescribed powers and their division among the branches of
government is a basis for stability and cooperation within government. Because that
stability instills public confidence in governmental actions, this Court should follow
its time-honored approach in assessing the powers conferred upon each branch of
government and applying separation of powers principles.
Since 1776 our constitutions have expressly vested the vast legislative power,
the power to make laws, in two distinct chambers of the General Assembly, the
Senate and the House of Representatives. N.C. Const. art. II, § 1; N.C. Const. of 1868,
art. II, § 1; N.C. Const. of 1776, § I; see also Legislative Power, Black’s Law Dictionary
(10th ed. 2014) (“The power to make laws and to alter them; a legislative body’s
exclusive authority to make, amend, and repeal laws.”). This express power to make
laws is broad and has not changed; it is limited only as expressly forbidden by the
constitution and by federal law. McIntyre, 254 N.C. at 515, 119 S.E.2d at 891-92;
-29-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Jones, 116 N.C. at 570-71, 21 S.E. at 787; see, e.g., Bayard, 1 N.C. (Mart.) at 7
(declaring an act of the General Assembly unconstitutional because it violated the
constitutional right to a trial by jury); see also Dickson v. Rucho, ___ N.C. ___, ___,
___ S.E.2d ___, ___ (2015) (recognizing restriction of state legislative power by federal
law).
In addition to federal limitations on state legislative power, the state
constitution provides express restrictions safeguarding against an abuse of legislative
power. See, e.g., N.C. Const. art. II, § 23 (prescribing the procedure for the passing of
revenue bills); id. art. II, § 24 (limiting certain local, private, or special acts); id. art.
III, § 5(11) (limiting “reconvened sessions” to considering certain bills); id. art. IV, § 1
(limiting authority to establish certain courts or to deprive courts of jurisdiction “that
rightfully pertains to [the courts] as a co-ordinate department of the government”);
id. art. V, §§ 1, 2(1)-(7) (limiting taxing authority); id. art. V, § 3(1)-(2), 4 (limiting
authority regarding debt); id. art. VI, § 9 (preventing the appointment of an official
already serving in one branch to serve simultaneously in another branch).10
10Every one of our state constitutions has placed express limitations or prohibitions
on legislative power. See, e.g., N.C. Const. of 1868, art. I; id., art II, §§ 13, 14 (prohibiting
the passing of certain private laws and providing a procedure by which to pass permissible
private laws); id., art. II, § 16 (prescribing the procedure for passing laws regarding state
debt or credit); N.C. Const. of 1776, Declaration of Rights, § III (prohibiting “exclusive or
separate emoluments or privileges,” except for “in consideration of public services”); id.,
Declaration of Rights, § XII (prohibiting seizure of person and “freehold liberties or
privileges” and deprivation of “life, liberty, or property, but by the law of the land”); id.,
Declaration of Rights, § XIV (prohibiting the suspension of trial by jury); id., Declaration of
Rights, § XXII (prohibiting “hereditary emoluments, privileges or honors”).
-30-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Moreover, the General Assembly is checked and balanced by its structure and
its accountability to the people. See N.C. Const. art. I, § 2. Legislative power is
divided between two chambers,11 with its combined one hundred seventy members.
Id. art. II, §§ 2, 4 (providing for 50 senators and 120 representatives). The members
of each chamber serve different constituencies with various needs and priorities. Id.
art. II, §§ 3, 5. The General Assembly’s power is diffused by its sheer magnitude, its
diversity within each chamber, and, consequently, the need to find compromise. See
1 James Bryce, The American Commonwealth 480 (3d ed. 1901) (“The Americans
restrain their legislatures by dividing them . . . .”). History has shown that the
legislative branch is not a continuously cohesive force; disagreements between the
two chambers are not infrequent.12 The diversity within the branch, however,
ensures healthy review and significant debate of each proposed statute, the
enactment of which frequently reaches final form through compromise. Likewise,
11 Our constitution has even referred to the division of legislative power between the
bicameral houses as “distinct branches” of government. N.C. Const. of 1868, art. II, § 1;
N.C. Const. of 1776, § I.
12 Notably, the statutes in question here do not provide for appointments by the
“General Assembly” but instead distribute legislative appointments between the Senate
and the House of Representatives. See Act of June 4, 2014, ch. 4, § 4(a), 2014 N.C. Sess.
Laws 57, 61 (providing that the Oil and Gas Commission consists of nine members: three
selected by the House, three by the Senate, and three by the Governor); id. § 5(a), 2014 N.C.
Sess. Laws at 64-65 (providing that the Mining Commission consists of eight members: two
selected by the House, two by the Senate, two by the Governor, along with the State
Geologist and the chair of the North Carolina State University Minerals Research
Laboratory Advisory Committee); Act of Sept. 20, 2014, ch. 122, § 3(a), 2014 N.C. Sess.
Laws 828, 832 (providing that the Coal Ash Management Commission consists of nine
members: three selected by the House, three by the Senate, and three by the Governor).
-31-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
members of the legislative branch face the most frequent elections, serving only two-
year terms,13 N.C. Const. art. II, §§ 2, 4, and are thereby most directly accountable to
the people. Lawmakers represent the particular interests of their different
constituents, who are limited in number. Id. art. II, §§ 3, 5. In addition to these
structural safeguards, the final check on the legislative power of the General
Assembly is judicial review, the implied constitutional authority of the court to decide
if a law violates the constitution. See Bayard, 1 N.C. (Mart.) at 6-7; see generally
Hoke, 15 N.C. (4 Dev.) at 28 (observing that the constitution “guards against abuse”
of legislative power through “frequent elections,” protection of individual rights,
division of powers, and judicial review).
This broad constitutional power to make laws includes the indisputable
authority of the General Assembly to create executive statutory offices. Along with
the power to create the office, the legislature has the power to assign the selection
authority either to itself or another. See, e.g., State ex rel. Martin v. Melott, 320 N.C.
518, 520, 524, 528, 359 S.E.2d 783, 785, 787, 789 (1987) (plurality) (stating, with one
dissenting judge agreeing, that the General Assembly had the constitutional power
to appoint the position itself); State ex rel. Cherry v. Burns, 124 N.C. 761, 765, 33 S.E.
136, 137 (1899) (concluding that the constitution “leads us to the opinion that the
Legislature may fill this [statutory] office” (citations omitted)); Cunningham v.
13The terms for legislators were lengthened from one to two years by amendment in
1835. N.C. Const. of 1776, art. I, § 1 (1835).
-32-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Sprinkle, 124 N.C. 638, 641, 33 S.E. 138, 139 (1899) (“[B]eing of legislative creation,”
appointments of members of the Board of Agriculture “are equally within the power
of legislative appointment.”); State Prison v. Day, 124 N.C. 362, 367, 32 S.E. 748, 749
(1899) (concluding that the constitution intended “to confer upon the General
Assembly the power to fill offices created by statute”), abrogated on other grounds by
State ex rel. Salisbury v. Croom, 167 N.C. 223, 228, 83 S.E. 354, 356 (1914); Jones,
116 N.C. at 574, 21 S.E. at 788 (“Here, the Legislature had the constitutional power
to create the office and fill it . . . .”).
The only express constitutional limitation on statutory appointments forbids
any member of one branch from serving simultaneously in another branch of
government; however, that prohibition does not speak to who has the authority to
appoint. N.C. Const. art. VI, § 9; N.C. Const. of 1868, art. XIV, § 7 (1873); N.C. Const.
of 1776, art. IV, § 4 (1835); N.C. Const. of 1776, §§ XXVI-XXX; see also State ex rel.
Wallace v. Bone, 304 N.C. 591, 608-09, 286 S.E.2d 79, 88-89 (1982) (concluding that,
if an appointing authority appoints an official from one branch to an official role in
another branch, that official unconstitutionally exercises the power of two branches).
There is no constitutional limitation on the General Assembly’s designating itself as
the appointing authority of positions it creates by statute.
The people have retained for themselves alone the only constitutional method
of changing the powers of each of the branches: the constitutional amendment. As
discussed below, for only an eight-year period, the people limited the General
-33-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Assembly’s power to designate the appointing authority for statutory offices.
Thereafter, the people expressly removed any such limitation. Most recently, the
people modified the legislative power by passing a constitutional amendment
granting the Governor the power to veto certain legislation. See Act of March 8, 1995,
ch. 5, §§ 3, 4, 1995 N.C. Sess. Laws 6, 8 (establishing referendum to amend the
constitution to provide gubernatorial veto to take effect 1 January 1997). A
gubernatorial veto requires a three-fifths vote in each chamber to override. N.C.
Const. art II, § 22. Thus, legislative power remains broad, limited only by express
constitutional provision.
Unlike the unified executive present in the federal model, the state
constitution has never had a unified executive; rather, executive power is dispersed
among several specified constitutional executive officers, with the Governor being
chief among them. N.C. Const. art. III, §§ 1, 7; N.C. Const. of 1868, art. III, § 1; N.C.
Const. of 1776, §§ XIV, XIX. The 1776 constitution, like every constitution thereafter,
placed the general executive power in the Governor. N.C. Const. art. III, § 1; N.C.
Const. of 1868, art. III, § 1, 4; N.C. Const. of 1776, § XIX. This constitution vested
the Governor with the power to “exercise all the other executive powers of
government, limited and restrained as by this Constitution [as] mentioned, and
according to the laws of the State.” N.C. Const. of 1776, § XIX; see also Executive
Power, Black’s Law Dictionary (10th ed. 2014) (“The power to see that the laws are
duly executed and enforced. . . . [G]overnors’ executive powers are provided for in
-34-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
state constitutions.”). This original constitution, like each constitution thereafter,
also provided specific gubernatorial duties. E.g., N.C. Const. art. III, § 5 (outlining
the “Duties of Governor”); N.C. Const. of 1868, art. III, § 6 (“to grant reprieves
commutations and pardons”); id., art. III, § 9 (“to convene the General Assembly in
extra session”); N.C. Const. of 1776, § XIX (including the “power to draw for and apply
such sums of money as shall be voted by the general assembly” and to exercise
clemency, “the power of granting pardons and reprieves”).
The 1776 constitution, like those that followed, divided the executive
responsibilities between the Governor and others, including a Council of State, even
though the Governor was expressly given the general executive authority and
responsibility. N.C. Const. of 1776, § XIX. This model of diffused executive power,
with the Governor exercising the general executive power, was unchanged in the 1868
state constitution. Compare id. § XIX (“[Governor] may exercise all . . . executive
powers of government . . . .”), with N.C. Const. of 1868, art. III, § 1 (“[Governor] shall
be vested [with] the Supreme executive power . . . .”). Stylistically improved, the 1868
constitution implemented separate articles for each branch, including the first
constitutional establishment of the judicial branch. See N.C. Const. of 1868,
arts. II-IV. The use of separate articles provided for more detailed descriptions of the
workings of each branch. John V. Orth & Paul Martin Newby, The North Carolina
-35-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
State Constitution 19-20 (2d ed. 2013) [hereinafter State Constitution].14 As in the
past, to enable the Governor to fulfill his supervisory role, the 1868 constitution
authorized the Governor to gather information from the other executive branch
officers and report to the General Assembly. N.C. Const. of 1868, art. III, § 7. In
summarizing this supervisory role, this provision states: “[The Governor] shall take
care that the laws be faithfully executed.” Id. This phrase did not expand the
Governor’s powers but stated more explicitly this general supervisory aspect of the
Governor’s executive responsibilities in a multimember executive branch.
In other words, the constitution charged the Governor with supervising the
executive branch and its functions while, at the same time, granting certain executive
powers to other executive officers. E.g., id., art. III, § 1 (listing Governor as one of
eight elected offices in the executive branch); id., art. III, § 7 (“The officers of the
Executive Department . . . shall . . . severally report to the Governor, who shall
transmit such reports, with his message, to the General Assembly . . . .”); id., art. III,
§ 9 (authorizing the Governor to “convene the General Assembly in extra session” “by
14 Professor John V. Orth is a legal historian and state constitutional scholar
acknowledged and cited by both this Court and the United States Supreme Court.
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 108, 120, 116 S. Ct. 1114, 1149, 1155, 134 L.
Ed. 2d 252, 299, 306 (1996) (Souter, Ginsburg & Breyer, JJ., dissenting); Welch v. Tex. Dep’t
of Highways & Pub. Transp., 483 U.S. 468, 499, 510 n.16, 520 n.20, 107 S. Ct. 2941, 2959,
2965 n.16, 2970 n.20, 97 L. Ed. 2d 389, 413, 420 n.16, 426 n.20 (1987) (Brennan, Marshall,
Blackmun & Stevens, JJ., dissenting); Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 648,
599 S.E.2d 365, 397 (2004) (quoting and citing John V. Orth, The North Carolina State
Constitution:  A Reference Guide (1993)); Stephenson v. Bartlett, 355 N.C. 354, 367, 562
S.E.2d 377, 387 (2002) (referring to Orth as “a highly respected state constitutional
scholar”).
-36-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
and with the advice of the Council of State”); id., art. III, § 13 (“The respective duties
of the [constitutional executive officers] shall be prescribed by law.”); id., art. III, § 14
(“The Secretary of State, Auditor, Treasurer, Superintendent of Public Works, and
Superintendent of Public Instruction, shall constitute ex officio, the Council of State,
who shall advise the Governor in the execution of his office . . . .”). The constitution
allowed the General Assembly to assign executive duties and functions by statute.
Id., art. III, § 13. Thus, while the Governor had general supervisory responsibility,
id., art. III, §§ 1, 7, each constitutional executive officer was primarily responsible for
executing the laws assigned to that official by the General Assembly, id., art. III, § 13.
The executive branch is fundamentally unchanged under the current
constitution. The Governor continues to share the exercise of executive powers with
the other constitutional executive officers who are separately elected members of the
Council of State, N.C. Const. art. III, §§ 7(1)-(2), 8, while maintaining his supervisory
role, id. art. III, §§ 1, 5(4), notwithstanding possible conflict among these officials, see
N.C.G.S. § 147-17 (2013) (allowing the Governor to employ independent counsel). The
constitution continues to require the General Assembly to assign by statute executive
duties and functions to the constitutional executive officers and the administrative
departments. N.C. Const. art. III, § 5(10) (“The General Assembly shall prescribe the
functions, powers, and duties of the administrative departments and agencies of the
State and may alter them from time to time . . . .”); id. art. III, § 7(2) (“[R]espective
duties [of the Council of State] shall be prescribed by law.”); id. art. III, § 11 (“[A]ll
-37-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
administrative departments, agencies, and offices of the State and their respective
functions, powers, and duties shall be allocated by law . . . .”).
In addition to prescribing duties to the executive officers, our current
constitution expressly recognizes the General Assembly’s power to organize and
reorganize the executive branch. Id. art. III, § 5(10) (“The General Assembly shall
prescribe the functions, powers, and duties of the administrative departments and
agencies of the State and may alter them from time to time . . . .”); see id. art. III, § 11
(“Regulatory, quasi-judicial, and temporary agencies may, but need not, be allocated
within a principal department.”). Thus, the executive power remains diffused and
unchanged. Compare N.C. Const. of 1868, art. III, with N.C. Const. art. III. When
the people have desired to expand executive authority, they have done so through
express constitutional change. Such change occurred in the 1868 constitution, though
it proved to be short-lived.
The Constitution of 1868, through a controversial provision, expressly limited
the General Assembly’s constitutional authority to assign the selection of statutory
officers, expressly granting the appointment authority to the Governor, subject to
consent of the Senate:
The Governor shall nominate, and by and with the advice
and consent of a majority of the Senators elect, appoint, all
officers whose offices are established by this Constitution,
or which shall be created by law, and whose appointments
are not otherwise provided for, and no such officer shall be
appointed or elected by the General Assembly.
-38-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
N.C. Const. of 1868, art. III, § 10. Notably, a specific constitutional provision was
required to limit the General Assembly’s lawmaking power and to prevent it from
designating an appointing authority other than the Governor.
Eight years later, the people specifically repealed this limitation on the
General Assembly’s legislative power by constitutional amendment in 1876. The
amendment “restore[d] in considerable measure the former power of the General
Assembly.” Thad Eure, Sec’y of State, North Carolina Government 1585-1974 at 798
(John L. Cheney, Jr. ed., 1975). Thereafter, the explicit constitutional power to
designate the appointing authority, including the authority to designate itself, again
resided in the General Assembly. See N.C. Const. of 1868, art. III, § 10 (1876); Day,
124 N.C. at 367, 32 S.E. at 749 (“[I]t is clear that the [Constitutional] Convention of
1875 intended to alter the Constitution . . . to confer upon the General Assembly the
power to fill offices created by statute.” (citation omitted)); Jones, 116 N.C. at 572-73,
21 S.E. at 788 (“[T]he [Constitutional] Convention refused to incorporate the words
‘and no such officer shall be appointed or elected by the General Assembly.’ ” (citing
Convention Journal of 1875, at 175-76)); see, e.g., Burns, 124 N.C. at 765, 33 S.E. at
137 (“[T]he Legislature may fill [the] office [of keeper of the capitol].”); Cunningham,
124 N.C. at 641, 33 S.E. at 139 (“[M]embers of the Board of Agriculture . . . being of
legislative creation, . . . are equally within the power of legislative appointment.”).15
15See State Constitution 25 (“[T]he General Assembly now reclaimed the power to
provide for legislative appointments to executive offices created by statute.”). In 1911 two
-39-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Since this fundamental return to the historical status quo, the constitutional
authority to provide the method of filling statutory offices resides squarely with the
General Assembly; the relevant provisions of our constitution regarding legislative
power have remained unchanged. N.C. Const. art. II, § 1; see id. art. III, §§ 5(8), (10),
11. In 1968 the North Carolina State Constitution Study Commission acknowledged
this broad legislative power. The Study Commission was tasked with drafting and
proposing amendments to our current constitution. See N.C. State Constitution
Study Comm’n, Report of the North Carolina State Constitution Study Commission i-
ii (1968) [hereinafter Report]. The Study Commission reviewed our constitution and
transmitted a special report to the Governor and General Assembly, which would
serve “as the primary source of guidance for the 1969 legislative session” and adoption
of our current constitution. N.C. State Bar v. DuMont, 304 N.C. 627, 635, 286 S.E.2d
89, 94 (1982). As we noted,
a comparison . . . reveals that our Legislature relied almost
exclusively on the Report. Hence, a close study of the
of the foremost legal scholars in North Carolina, Henry G. Conner, a former Supreme Court
Justice, then serving as a federal district court judge, and Joseph B. Cheshire, Jr., an
attorney in Raleigh, North Carolina, published an annotation of the state constitution.
Henry G. Connor & Joseph B. Cheshire, Jr., The Constitution of the State of North Carolina
Annotated i (1911). They stated that “the amendment to this section by the Convention of
1875 altered the Constitution as construed [previously] . . . and conferred upon the General
Assembly the power to fill offices created by statute.” Id. at 140. This Court has quoted
and cited this valuable work on our state constitution throughout the past century. See,
e.g., Coley v. State, 360 N.C. 493, 497, 631 S.E.2d 121, 125 (2006); State v. Furmage, 250
N.C. 616, 618, 109 S.E.2d 563, 564-65 (1959); Penny v. Salmon, 217 N.C. 276, 279, 7 S.E.2d
559, 561 (1940); Moose v. Bd. of Comm’rs, 172 N.C. 419, 441-42, 90 S.E. 441, 452 (1916)
(Brown, J., concurring).
-40-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
Report allows us “to place [ourselves] as nearly as possible
in the position of the men who framed the instrument” and
allows us to “look to the history [and] general spirit of the
times” . . . .
Id. at 635, 286 S.E.2d at 94 (brackets in original) (quoting Perry v. Stancil, 237 N.C.
442, 444, 75 S.E.2d 512, 514 (1953) (“The court should place itself as nearly as
possible in the position of the men who framed the instrument.”)).
In its report the Study Commission explained:
The General Assembly will not be deprived of any of its
present authority over the structure and organization of
state government. It retains the power to make changes
on its own initiative, it can disapprove any change initiated
by the Governor, and it can alter any reorganization plan
which it has allowed to take effect and then finds to be
working unsatisfactorily.
Report at 131-32; see also N.C. Const. art. III, §§ 5(10), 11. Moreover, the Study
Commission recommended limiting legislative appointment authority by
constitutional amendment. Its proposed amendment would have vested sole
authority in the Governor to “appoint and [ ] remove the heads of all administrative
departments and agencies.” Report at 113. This proposed constitutional amendment,
modestly limiting some legislative appointment authority, was not adopted, thus
perserving for the General Assembly its historically broad appointment authority.
See N.C. Const. art. III, § 7.
Thus, aside from a short-lived express limitation, the constitutional authority
to designate the appointing authority for statutory positions has resided and
continues to reside squarely in the General Assembly under its general legislative
-41-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
power to make laws. Therefore, not only does the General Assembly have the
undisputed constitutional power to create positions in the other branches, it may also
designate to itself the authority to fill the positions.
Since 1776 our state constitutions have contained a separation of powers
provision stating “[t]hat the legislative, executive, and supreme judicial powers of
government, ought[16] to be forever separate and distinct from each other.” N.C.
Const. of 1776, Declaration of Rights, § IV; see N.C. Const. art. I, § 6; N.C. Const. of
1868, art. I, § 8. Notably, the plain language of the provision states that “powers” are
to be “separate and distinct.” A violation of separation of powers occurs when one
branch of government exercises the power reserved for another branch of
government.17
16 Even though the word “ought” in both the 1776 and 1868 constitutions was
changed to “shall” in the 1971 constitution, the Study Commission noted there was no
substantive change to the separation of powers clause. Report at 73-75; see also Smith v.
Campbell, 10 N.C (3 Hawks) 590, 591, 598 (1825) (providing that “ought” is synonymous
with “shall,” noting that “the word ought, in this and other sections of the [1776
constitution], should be understood imperatively”).
17 This Court has consistently recognized this application of the separation of powers
principle. See, e.g., State v. Whitehead, 365 N.C. 444, 448-49, 448 n.1, 722 S.E.2d 492, 496
& n.2 (2012) (providing that the judiciary cannot exercise executive power under N.C.
Const. art. III, § 5(6) to invalidate sentence for nonlegal error); Bacon, 353 N.C. at 717-18,
722, 549 S.E.2d at 854-55, 857 (recognizing that the judiciary cannot impose additional
constraints on the executive’s “exclusive prerogative” to grant clemency under N.C. Const.
art. III, § 5(6)); Hogan v. Cone Mills Corp., 315 N.C. 127, 138-40, 142-43, 337 S.E.2d 477,
483-44, 486 (1985) (holding the legislature cannot exercise judicial power extended to the
Industrial Commission under the Worker’s Compensation Act by retroactively altering a
judgment rendered by that agency); State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664
(1981) (holding the General Assembly cannot exercise constitutional power granted to the
judiciary under N.C. Const. art. IV, § 13(2) in making rules of appellate practice and
-42-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
The first case in which this Court18 addressed separation of powers, decided
less than fifty years after the adoption of the original constitution, arose in a land
title dispute. In Robinson v. Barfield the General Assembly passed a private act
attempting to cure a flaw in a deed. 6 N.C. (2 Mur.) 391, 418-19 (1818). The Court
said that the General Assembly violated separation of powers by exercising power
reserved for the judiciary. Id. at 419. The Court noted that in passing the act, the
legislature was attempting to determine “the effects in law of the several deeds. By
the Constitution they are restricted from this exercise of power; they are to make the
law, and the judicial power is to expound and determine what cases are within its
operation.” Id.
Similarly, in a more recent case, Bacon v. Lee, a convicted criminal asked this
Court to intrude into the Governor’s clemency review—an explicit constitutional
power vested in the Governor since 1776. 353 N.C. at 704, 549 S.E.2d at 846-47. The
procedure); Person v. Bd. of State Tax Comm’rs, 184 N.C. 499, 513-14, 115 S.E. 336, 345
(1922) (holding the judiciary cannot invalidate a statute found not in conflict with the
exercise of the legislature’s constitutional taxation power under N.C. Const. of 1868, art. V,
§ 3); Houston v. Bogle, 32 N.C. (10 Ired.) 496, 503-04 (1849) (holding the legislature cannot
exercise judicial power to retroactively determine “what the law is and what it was”); Hoke,
15 N.C. (4 Dev.) at 13-15 (holding the General Assembly violates separation of powers by
exercising judicial power when it passes a law which attempts to settle a dispute between
competing claimant to a public office); Robinson v. Barfield, 6 N.C. (2 Mur.) 391, 418-19
(1818) (holding that the legislature cannot exercise judicial power by deciding whether a
deed “was executed according to . . . [the] law”); see also Ivarsson v. Office of Indigent Def.
Servs., 156 N.C. App. 628, 631, 577 S.E.2d 650, 652 (“A violation of the separation of powers
required by the North Carolina Constitution occurs when one branch of state government
exercises powers that are reserved for another branch of state government.”), disc. rev.
denied, 357 N.C. 250, 582 S.E.2d 269 (2003).
18 See footnote 2.
-43-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
criminal defendant sought substantive review from this Court because the then-
serving Governor had represented the State during Bacon’s appeal. Id. at 701-02,
711, 549 S.E.2d at 844-45, 851. This Court concluded that clemency was an explicit
constitutional power of the Governor to be exercised solely at the Governor’s
discretion. Id. at 704, 549 S.E.2d at 846-47. As such, clemency was a nonjusticiable,
political question. Id. at 716-17, 549 S.E.2d at 854. In explaining nonjusticiability,
the Court noted that any substantive review by the Court would interfere with the
Governor’s express constitutional authority. Id. at 716-17, 549 S.E.2d at 854. When
one branch interferes with another branch’s performance of its constitutional duties,
it attempts to exercise a power reserved for the other branch. Id. at 721-22, 549
S.E.2d at 857. Therefore, if the Court conducted a substantive review of the clemency
proceeding, the judicial branch would be exercising a power constitutionally reserved
for the Governor, thus violating separation of powers. Id. at 721-22, 549 S.E.2d at
857.
As discussed, the General Assembly has the constitutional power to assign
itself the authority to fill statutory positions; this designation does not violate
separation of powers. From our founding, the authority to appoint has simply been
a mode of filling the position and has not in any way implicated control over the
official or an exercise of any official duties. Cunningham, 124 N.C. at 642-43, 33 S.E.
at 139 (holding that legislative appointment is “only a mode of filling the offices” and
that “[t]his view . . . was strictly in accordance with the constitutional history of this
-44-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
State”); Jones, 116 N.C. at 580, 21 S.E. at 790 (Avery, J., concurring) (“[B]efore any
such express power was given or limited to the Chief Executive, when by the
Constitution as amended in 1835 no express grant of authority to appoint or elect was
conferred upon either of the coördinate departments, the residuary power of the
people to provide for filling offices, already existing, and to create others, was
exercised by their representatives in the General Assembly.”); Trs. of Univ. of N.C. v.
McIver, 72 N.C. 76, 85 (1875) (“Now the election of officers is not an executive,
legislative or judicial power, but only a mode of filling the offices created by law,
whether they belong to one department or the other. The election of a judge is not a
judicial power, nor the election of a Governor an executive power; for if so, all elections
by the people would be an infringement upon the executive department.”).
If the appointing of the official is simply a mode of filling the position and does
not implicate control, then the appointment does not in any manner amount to
exercising the duties of the office. Thus, whether appointing an official or a majority
of a group of officials, the appointing authority is not exercising any responsibilities
of the position. This principle has existed since our independence from Great Britain
and has been reiterated throughout our history.
In 1776 the Drafters of the Declaration of Rights in our state constitution
provided for separation of powers, N.C. Const. of 1776, Declaration of Rights, § IV;
the next day, those same Drafters specified legislative appointment of the entire
executive and judicial branches, N.C. Const. of 1776, §§ XIII-XVI, XXII-XXIV. In
-45-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
appointing the Governor, the then-seven-member Council of State, an Attorney
General, Secretary of State, and Treasurer, id., the General Assembly did not exercise
the power of those offices. The authority to appoint all the officials of the other
branches did not violate separation of powers because a separation of powers violation
only occurs when one branch of government exercises the power belonging to another
branch. Once appointed, the Governor and other executive branch officials each took
an oath to perform the duties of the office and served a designated term. N.C. Const.
of 1776, §§ XII, XV, XVI. Similarly, the legislature did not exercise the judicial power
by creating a judicial system and appointing and removing judges. Id. § XIII. The
judges took an oath to perform their duties and did so, despite the possibility of
removal. Id. §§ XII, XIII.
Our original judges aptly demonstrated that a selected officer exercises
independent judgment after appointment, even in the face of the legislature’s removal
authority. In Bayard v. Singleton the three judges had been appointed by the General
Assembly and were subject to removal by that body. See id. § XIII. Nonetheless, the
judges held an act of the General Assembly unconstitutional. 1 N.C. (Mart.) at 7.
The Court observed
that the obligation of their oaths and the duty of their office
required them, in that situation, to give their opinion on
that important and momentous subject; and that
notwithstanding the great reluctance they might feel
against involving themselves in a dispute with the
Legislature of the State, yet no object of concern or respect
could come in competition or authorize them to dispense
-46-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
with the duty they owed the public, in consequence of the
trust they were invested with under the solemnity of their
oaths.
Id. at 6-7. As demonstrated by the behavior of the judges and their decision in Bayard
v. Singleton, appointment was simply a means of filling the position, not controlling
the official and thereby exercising the power of the office.19
Our current constitution and a variety of statutes continue to recognize that
the authority to appoint an official does not result in control of the appointee; having
and exercising such authority does not implicate separation of powers. The
constitution and statutes place with one or more officials in one branch the authority
to appoint officials in another branch.20 Moreover, various statutory schemes allow
19 The commissioners appointed under the statutes at issue here likewise must take
oaths before taking on the responsibilities of their positions. See N.C.G.S. § 11-1 (2013)
(“[O]aths . . . are necessary . . . to the important end of good government . . . [and] ought to
be taken and administered with the utmost solemnity.”); id. § 11-7 (2013) (“[E]very person
elected or appointed to hold any office . . . shall . . . take and subscribe to the following oath:
‘I . . . do solemnly and sincerely swear that I will . . . be faithful and bear true allegiance to
the State of North Carolina, and to the constitutional powers and authorities which are or
may be established for the government thereof; and that I will endeavor to support,
maintain and defend the Constitution of said State . . . .’ ”); see also id. § 143B-13(a) (2013)
(“[E]ach member [is appointed] on the basis of interest in public affairs, good judgment,
knowledge, and ability in the field for which appointed, and with a view to providing
diversity of interest and points of view in the membership.”).
20 See N.C.G.S. §§ 7A-752, -753 (Chief Justice makes appointments to the Office of
Administrative Hearings, housed in the executive branch); Melott, 320 N.C. at 526, 359
S.E.2d at 788 (Meyer, J., concurring in result) (recognizing that the Office of Administrative
Hearings exercises judicial functions, yet is housed in the executive branch); see, e.g., N.C.
Const. art IV, § 19 (Governor fills judicial vacancies); N.C.G.S. § 163-9(a) (2013) (same); see
also N.C. Const. art. III, §§ 3(4), (5) (General Assembly determines Governor’s mental
capacity and has power to impeach); id. art. III, § 7(6) (General Assembly determines
incapacity of executive officers); N.C.G.S. § 106-2 (2013) (Governor appoints Agriculture
Board, housed under elected Council of State member); id. §§ 162-5, -5.1 (2013) (vacancy in
-47-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
for the branches to share appointments21 and even authorize the political parties to
recommend certain appointees.22 This historically recognized principle, that
appointment is simply a means of filling the position, is true regardless of the function
ultimately exercised by the official.23 Thus, for example, when the Governor appoints
a judge, the Governor is not controlling the judge or exercising a judicial power;
separation of powers is not implicated. N.C. Const. art. IV, § 19.
The principle of separation of powers is certainly not implicated by the General
Assembly’s appointment of a majority of the members of various executive
commissions, particularly in light of the General Assembly’s significant express
constitutional authority to assign executive duties to the constitutional executive
the office of sheriff, exercising the executive function of enforcing the laws, filled by board of
county commissioners, a legislative body).
21 See, e.g., N.C.G.S. § 7A-375 (2013) (Judicial Standards Commission) (providing for
thirteen members severally appointed by the Chief Justice, State Bar Council, Governor,
and General Assembly to serve six-year terms, and for cause and disqualification removal);
id. § 115D-2.1 (2013) (State Board of Community Colleges) (providing for twenty-one
members appointed by the Governor and General Assembly, various limited terms, and
removal by vote and recommendation from the Ethics Commission); id. § 138A-7 (2013)
(State Ethics Commission) (providing for eight members, four each appointed by the
General Assembly and Governor to serve staggered terms, and removal for cause).
22 See, e.g., N.C.G.S. § 162-5.1 (2013) (In forty six counties, the board “shall elect the
person recommended by” the prior sheriff’s political party to fill a vacancy in the office of
sheriff.); id. § 163-19 (2013) (State Board of Elections) (providing for five members,
requiring the Governor to appoint members from a list of nominees submitted by the two
largest political parties, and limiting members to two consecutive four-year terms).
23 See, e.g., N.C.G.S. § 62-10(f) (2013) (Utilities Commission) (independent
commission performing judicial functions but residing in executive branch; members
appointed by Governor subject to legislative confirmation); id. § 97-77(a1) (2013) (Industrial
Commission) (independent commission performing judicial functions but residing in
executive branch; members appointed by Governor but must be confirmed by the General
Assembly).
-48-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
officers and organize executive departments. The executive branch executes the laws
as enacted by the General Assembly. The constitution expressly acknowledges the
General Assembly’s power to assign duties and functions to the executive branch
under its broad lawmaking power. N.C. Const. art. III, §§ 5(10), 7(1)-(2), 8, 11. The
executive branch officials and their departments carry out these statutory duties and
functions. Id. art. III, §§ 5(10), 7(1)-(2). The General Assembly retains the
prerogative to change these duties, the organization of the executive branch, and the
branch’s supervisory structure. Id. art. III, §§ 5(10), 7(1)-(2), 11. Though the General
Assembly may have assigned a particular function to a constitutional executive
officer at present, the constitution provides that the legislature can assign that
function elsewhere. Id.
To overturn a law of the people acting through the General Assembly, the
Court must find an express constitutional violation beyond a reasonable doubt. As
demonstrated by the text and history of our constitution and by our jurisprudence,
the General Assembly in exercising its express constitutional lawmaking power has
the authority to appoint a majority of the members of executive commissions that it
has created by statute. The authority to appoint is simply a mode of filling positions
and does not result in control over the appointed officials. Absent an explicit
constitutional amendment such as that proposed in 1968, the General Assembly’s
constitutional power, including its appointment authority, remains unchanged.
While I agree with the majority that the statutes in question do not violate the
-49-
STATE EX REL. MCCRORY V. BERGER
NEWBY, J., concurring part and dissenting in part
appointments clause, id. art. III, § 5(8), I do not believe that the challenged provisions
violate separation of powers. Accordingly, I concur in part and dissent in part.
-50-