NC Supreme Court Considers McCrory-Berger Separation Of Powers Case

Jun 30, 2015

The North Carolina Supreme Court scrutinized arguments Tuesday in a case that could shift the balance of power between the state’s executive and legislative branches. Attorneys representing Gov. Pat McCrory and two former governors argued against state lawmakers appointing members to three environmental boards that perform administrative duties. 

The seven Justices gave no obvious indication of their leanings in the case, which could take months to be resolved. Chief Justice Mark Martin peppered attorneys from both sides with questions on the role of the Coal Ash Management Commission, which the General Assembly created in 2014, and directly offered his opinion only to say he had enjoyed reviewing the hundreds of pages filed in case briefs.

“This has been a pleasure,” Martin said.

A three-judge panel of Superior Court judges ruled in favor of the governor earlier this year. The high court’s ruling could validate the General Assembly’s historically wide-ranging powers or it could force changes to boards and commissions where lawmakers select appointees.

The attorney representing Senate Leader Phil Berger and House Speaker Tim Moore, Charlotte-based John Culver, argued that although the coal ash commission is administered under the executive branch, lawmakers designed it as independent body and gave it semi-judicial and semi-legislative powers. Culver told the court that while the General Assembly appointed board members, lawmakers do not control members’ actions.

The commission “does not, in our opinion, have quasi-executive powers,” Culver said.

But attorney John Wester, representing McCrory and former governors Jim Martin, a fellow Republican, and Jim Hunt, a Democrat, argued that the coal ash commission and two others named in the suit -- the Oil and Gas Commission and the state Mining Commission -- are tasked with executing laws enacted by the General Assembly, and therefore belong under the purview of the executive branch.

“A rose, even a quasi-rose, would smell just as sweet as a rose,” Wester said.

The case received attention in part because the General Assembly created the coal ash commission to oversee clean up of a 2014 Duke Energy spill that coated 70 miles of the Dan River with toxic sludge. When the commission was created, Berger said he wanted it to act independently because McCrory worked for Duke Energy for 29 years before being elected governor.