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

Background

In 2014 the General Assembly enacted the Energy Modernization Act and the Coal Ash Management Act, creating three executive-branch commissions (Oil & Gas, Mining, Coal Ash Management) with final authority over certain DENR decisions and penalty remissions.
Each commission had a majority of its voting members appointed by the General Assembly (six of nine or four of eight), with the Governor appointing the minority and removal allowed only for cause.
Plaintiffs sued, claiming the statutory appointment provisions violated (1) the state appointments clause (Art. III, §5(8)) and (2) the separation of powers clause (Art. I, §6) by usurping the Governor’s duty to ‘‘take care that the laws be faithfully executed’’ (Art. III, §5(4)).
A three-judge superior court panel held the provisions did not violate the appointments clause but did violate separation of powers; defendants appealed directly to the North Carolina Supreme Court.
The Supreme Court reviewed constitutional text, history, and precedent de novo, presuming statutes constitutional unless unconstitutionality is plain and clear.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Art. III §5(8) (appointments clause) bars the General Assembly from appointing statutory officers to commissions	The clause gives the Governor broad appointment power over statutory and constitutional officers; legislative appointments are prohibited	The clause does not extinguish the General Assembly’s historic power to appoint statutory officers; power not granted away remains with the people/legislature	The appointments clause covers constitutional officers whose appointments are not otherwise provided for by the Constitution; it does not prohibit the General Assembly from appointing statutory officers
Whether the specific appointment provisions violate separation of powers (Art. I §6) by preventing the Governor from carrying out his duty to faithfully execute the laws	Legislative majorities on commissions with final executive authority, protection from removal, and insulation from executive control shift execution power from Governor to General Assembly	Legislative appointment is a permissible method of filling statutory offices; appointment ≠ control; historic practice supports legislative selection	The challenged provisions violate separation of powers: when the legislature appoints a majority of officers who have final executive authority and the Governor lacks meaningful appointment/removal/supervisory control, it unreasonably interferes with the Governor’s core executive duty to execute the laws
Remedy for appointments already made to the Coal Ash Management Commission	Plaintiffs sought removal of current legislative appointees	Defendants opposed removal	Court invalidated the appointment provisions (modifying/affirming the lower court in part); this change mooted the separate challenge to the Commission’s "independent" statutory insulation and rendered related removal questions moot
Scope of decision for other commissions/appointments	Plaintiffs argued broad invalidation necessary to protect executive function	Defendants warned of broad consequences for many statutory appointment schemes	Court acknowledged General Assembly may constitutionally appoint statutory officers in many contexts; its holding is fact-specific to commissions with final executive authority where legislature-appointed majorities and limited gubernatorial control combine to usurp executive function

Key Cases Cited

State v. Ballance, 229 N.C. 764 (1949) (describing legislative purpose to protect public welfare)
Bayard v. Singleton, 1 N.C. 5 (1787) (establishing judicial review under state constitution)
People ex rel. Welker v. Bledsoe, 68 N.C. 457 (1873) (construing “appointments not otherwise provided for” as referring to the Constitution)
People ex rel. Cloud v. Wilson, 72 N.C. 155 (1875) (confirming constitutional meaning of appointments phrase)
Trustees of Univ. of N.C. v. McIver, 72 N.C. 76 (1875) (legislative authority to select trustees when constitution grants discretion)
State ex rel. Martin v. Melott, 320 N.C. 518 (1987) (plurality/conciliation on appointment issues; discussed but not controlling for separation-of-powers rule)
State ex rel. Wallace v. Bone, 304 N.C. 591 (1982) (analysis of legislative control over executive functions)
Bacon v. Lee, 353 N.C. 696 (2001) (executive core powers cannot be unreasonably disrupted by other branches)
Hart v. State, 368 N.C. 122 (2015) (presumption of constitutionality; separation-of-powers principles)