February 2, 2016
Practice Group:
Government
Enforcement
North Carolina Supreme Court Endorses and
Clarifies General Assembly’s Constitutional
Authority to Appoint Executive Branch Officers
By John H. Culver III and Brian C. Fork
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
North Carolina Supreme Court Endorses and Clarifies General Assembly’s
Constitutional Authority to Appoint Executive Branch Officers
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.
K&L Gates LLP represented Philip E. Berger, President Pro Tempore of the North Carolina
Senate, and Timothy K. Moore, Speaker of the North Carolina House of Representatives, in
the case, with partners John H. Culver III of Charlotte and Brian C. Fork of Raleigh leading
the defense and associates Matthew T. Houston of Raleigh and Robert W. Manoso and Sara
S. Ash of Charlotte assisting.
Authors:
John H. Culver III
john.culver@klgates.com
+1.704.331.7453
Brian C. Fork
brian.fork@klgates.com
+1.919.743.7351
2
North Carolina Supreme Court Endorses and Clarifies General Assembly’s
Constitutional Authority to Appoint Executive Branch Officers
Anchorage
Austin
Fort Worth
Frankfurt
Orange County
Beijing
Berlin
Harrisburg
Palo Alto
Paris
Boston
Hong Kong
Perth
Brisbane
Houston
Pittsburgh
Brussels
London
Portland
Charleston
Los Angeles
Raleigh
Charlotte
Melbourne
Research Triangle Park
Chicago
Miami
Dallas
Milan
San Francisco
Doha
Newark
Dubai
New York
São Paulo
Seattle
Seoul Shanghai Singapore Sydney Taipei Tokyo Warsaw Washington, D.C. Wilmington
K&L Gates comprises approximately 2,000 lawyers globally who practice in fully integrated offices located on five
continents. The firm represents leading multinational corporations, growth and middle-market companies, capital
markets participants and entrepreneurs in every major industry group as well as public sector entities, educational
institutions, philanthropic organizations and individuals. For more information about K&L Gates or its locations,
practices and registrations, visit www.klgates.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in
regard to any particular facts or circumstances without first consulting a lawyer.
© 2016 K&L Gates LLP. All Rights Reserved.
3