On January 29, 2016, the North Carolina Supreme Court issued an opinion endorsing and clarifying the authority of the North Carolina General Assembly to appoint officers to legislatively created offices in State ex rel McCrory v. Berger, No. 113A15 (N.C. Jan. 29, 2016).
The Berger decision unambiguously establishes the General Assembly’s right to appoint statutory executive officers. The decision provides welcome guidance for state political leaders as well as businesses operating in fields governed by appointees serving in offices and on commissions established by the General Assembly.
Court Endorses General Assembly’s Broad Appointment Power
In 2014, the General Assembly enacted the North Carolina Coal Ash Management Act, which established the Coal Ash Management Commission, and the Energy Modernization Act, which established the Oil and Gas Commission and the Mining Commission. Each of the Acts provided for the North Carolina Senate, House of Representatives, and Governor to appoint, or recommend appointment of, equal numbers of commissioners to the respective Commissions. Subsequently, Governor Pat McCrory and former Governors Jim Hunt and Jim Martin sued Philip E. Berger, President Pro Tempore of the North Carolina Senate; Timothy K. Moore, Speaker of the North Carolina House of Representatives; and members of the North Carolina Coal Ash Management Commission in their official capacities, claiming that the Acts violated the Appointments Clause and Separation of Powers Clause of the North Carolina Constitution. The Governors argued that only the Governor can appoint members of the Commissions.
In its opinion, the North Carolina Supreme Court first determined that the Appointments Clause in Article III, § 5(8) of the North Carolina Constitution, which provides that “[t]he 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,” means that the Governor is exclusively authorized to appoint only “constitutional officers whose appointments are not otherwise provided for by the constitution.” The Court’s opinion rejected the Governors argument that Constitution permits only the Governor to appoint any officer in any position – created by the Constitution or by statute – where the Constitution does not provide another method of appointment.
Instead, the Court reaffirmed the General Assembly’s broad appointment powers and recognized that the Appointments Clause “does not prohibit the General Assembly from appointing statutory officers to administrative commissions,” such as the Coal Ash Management Commission, Mining Commission, and Oil and Gas Commission. The Court agreed that “appointing statutory officers is not an exclusively executive prerogative” and that “the General Assembly may generally appoint statutory officers to administrative commissions.” The Court did, however, determine that the General Assembly may not interfere with the Governor’s final executive authority and constitutional duty to take care that the laws are faithfully executed.
In this particular instance, the Court determined that because the General Assembly collectively appointed a majority of the commissioners and because the Governor’s ability to remove commissioners was limited, the three Commissions at issue infringed upon the Governor’s final executive authority in violation of the Separation of Powers Clause. Importantly, the Court declined to take any position on the effect of its decision on departments within the executive branch headed by independently elected members of the Council of State and further explained that the General Assembly may have “broader latitude” in appointing members to administrative commissions whose functions are different than those in this case, such as the Rules Review Commission.
Conclusion
The Berger decision provides welcome guidance to the General Assembly and to state business leaders regarding the General Assembly’s authority to appoint statutory officers and members of state commissions that govern numerous regulated fields across North Carolina. While the Court left the constitutionality of certain appointments unresolved and declined to offer a “bright line” test, the Court unanimously clarified the General Assembly’s appointment power under the Appointments Clause, thereby ensuring clarity for the constitutionality of most legislative appointments going forward.
