The North Carolina Supreme Court will hear arguments Tuesday in a landmark case pitting the governor against leaders of the General Assembly.
Two former governors are expected to appear at the court for the case involving the constitutional separation of powers.
“The issues … in this case are some of the most significant issues to be heard by the court in decades,” said Bob Stephens, counsel to Republican Gov. Pat McCrory. “The court’s ruling could be historic.”
The case stemmed from the General Assembly’s creation of the Coal Ash Management Commission to oversee cleanup of the state’s coal ash ponds after last year’s massive Dan River spill. The legislature appointed six of the commission’s nine members.
Attorneys for McCrory argue that those appointments encroached on “core executive branch functions” and therefore violated the constitutional separation of powers.
Attorneys for Senate President Pro Tem Phil Berger and House Speaker Tim Moore maintain that lawmakers have the power to make such appointments.
In March, a three-judge panel sided with McCrory when it ruled the General Assembly violated the state constitution by creating the coal ash commission and two others in which the majority of members are chosen by legislators.
The judges struck down the appointment process for the coal ash commission as well as the Oil and Gas and state Mining commissions, for which a majority of members was chosen by the Senate leader and House speaker.
In a statement at the time, Berger and Moore said the opinion represented “a dramatic shift in the historical constitutional balance between the three branches of government, with implications reaching far beyond the three independent boards named in the lawsuit.”
The case has created unusual alliances.
Former Govs. Jim Martin, a Republican, and Jim Hunt, a Democrat, have sided with McCrory. Backing the GOP legislators is Democratic Attorney General Roy Cooper as well as two Republicans and two Democrats on the Council of State.
In their brief to the Supreme Court, McCrory’s lawyers, led by Charlotte attorney John Wester, invoked Founding Fathers George Washington and James Madison. They called the separation of powers the cornerstone of our system of government.
Legislators, they wrote, “have reduced the governor to what (U.S.) Chief Justice (John) Roberts calls a ‘cajoler-in-chief.’”
In their own brief, attorneys for the General Assembly cite the North Carolina Constitution and Supreme Court precedents in arguing that the legislature does, in fact, have the power to appoint.
“The General Assembly acted well within its constitutional mandate when it created the Coal Ash Management Commission,” they wrote, “and did not improperly intrude upon or otherwise interfere with power of the executive branch.”
Martin, the former governor, said he believes the legislature overstepped its bounds with the appointments, and he hopes the court recognizes it.
“It’s pretty important,” he said, “Otherwise, the General Assembly could end up appointing law clerks to the Supreme Court.”