NORTH CAROLINA STATE BOARD OF EDUCATION v. THE STATE OF NORTH CAROLINA and MARK JOHNSON, in his official capacity
No. 333PA17
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 8 June 2018
On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of an order granting summary judgment entered on 14 July 2017 by a three-judge panel of the Superior Court, Wake County, appointed by the Chief Justice pursuant to N.C.G.S. § 1-267.1. Heard in the Supreme Court on 7 February 2018.
ERVIN, Justice.
Robert F. Orr, PLLC, by Robert F. Orr; and Poyner Spruill LLP, by Andrew H. Erteschik, Saad Gul, and John M. Durnovich, for plaintiff-appellant.
Joshua H. Stein, Attorney General, by Olga Vysotskaya de Brito, Special Deputy Attorney General, and Amar Majmundar, Senior Deputy Attorney General, for defendant-appellee State of North Carolina.
Blanchard, Miller, Lewis & Isley, P.A., by E. Hardy Lewis and Philip R. Isley, for defendant-appellee Mark Johnson.
Opinion of
This case requires us to determine whether legislation amending portions of Chapter 115C and other provisions of the North Carolina General Statutes violates Article IX, Section 5 of the Constitution of North Carolina. Plaintiff North Carolina State Board of Education is an entity established by the North Carolina Constitution that consists of the Lieutenant Governor, State Treasurer, and eleven additional members, including one member from each of the State‘s eight educational districts, who are appointed by the Governor, subject to confirmation by the General Assembly, and serve eight-year overlapping terms.
On 8 November 2016, defendant Mark Johnson was elected Superintendent of Public Instruction for a four-year term commencing on 1 January 2017. On 16 December 2016, the General Assembly enacted House Bill 17, which is captioned, in part, “An Act to Clarify the Superintendent of Public Instruction‘s Role as the Administrative Head of the Department of Public Instruction.” Act of Dec. 19, 2016, ch. 126, 2017-1 N.C. Adv. Legis. Serv. 37 (LexisNexis) (Session Law 2016-126). House Bill 17, which amended numerous provisions of
On 29 December 2016, the Board filed a complaint in the Superior Court, Wake County, in which it sought a declaratory judgment to the effect that certain provisions of Session Law 2016-126 are unconstitutional and to have the challenged statutory provisions temporarily restrained and preliminarily and permanently enjoined. According to the allegations set out in the Board‘s complaint, Session Law 2016-126 unconstitutionally transferred the authority conferred upon the Board in Article IX, Section 5 to “supervise . . . the free public school system,” to “administer the free public school system,” to “supervise . . . the educational funds provided for [the free public school system‘s] support,” and to “administer . . . the educational funds provided for [the free public school system‘s] support” to the Superintendent. On the same date, Judge Donald W. Stephens entered a temporary restraining order in which he concluded, among other things, that, “when a constitution expressly confers certain powers and duties on an entity, those powers and duties cannot be transferred to someone else without a constitutional amendment” and that “the [challenged] provisions of [House Bill 17] . . . attempt to transfer these constitutional powers and duties . . . from the Board to the Superintendent of Public Instruction.” As a result, Judge Stephens enjoined the State and its “officers, agents, servants, employees, and attorneys” from “taking any action to implement or enforce” Session Law 2016-126.
On 30 December 2016, Judge Stephens entered an order transferring this case to a three-judge panel of the Superior Court, Wake County, on the grounds that
[M]any of the provisions of [Session Law 2016-126], particularly those which were not specifically addressed by the [p]laintiffs in their briefs and oral arguments, simply shift the details of day-to-day operations, such as hiring authority, from the State Board to the Superintendent. This court further concludes that those aspects of the legislation appear to fall well within the constitutional authority of the General Assembly to define specifics of the relationship between the State Board of Education and the Superintendent of Public Instruction.
North Carolina‘s Constitution establishes two entities responsible for the governance of the public school system: the State Board and the Superintendent. The allocation of powers and duties between these two constitutional entities has changed over time such that there has been an ebb and flow of the powers of each entity over the years, depending on various acts of legislation. Nevertheless, it appears to be the clear intent of the Constitution that the State Board shall have the primary authority to supervise and administer the free public school system and the educational funds provided for the support thereof, and that the State Board is empowered to make all needed rules and regulations related to each of those functions, subject to laws passed by the General Assembly. It also appears clear that as secretary to the State Board and chief administrative officer of the State Board, the Superintendent is primarily responsible for overseeing the day-to-day management and operations of the state‘s free public school system.
While the parties disagree as to what, if any, limits are placed on the power of the General Assembly to shift responsibilities back and forth between the State Board and Superintendent, this Court does not consider it necessary to articulate a precise definition on that boundary. Suffice it to say, it is at least abundantly clear to this Court that this action by the General Assembly in enacting [Session Law 2016-126] is not such a pervasive transfer of powers and authorities so as to transfer the inherent powers of the State Board to supervise and administer the public schools, nor does it render the State Board an “empty shell,” nor does this action, which [p]laintiffs contend to be an infringement upon the constitutional powers and duties of the State Board of Education, operate to “unnecessarily restrict[ ] [the State Board of Education‘s] engaging in constitutional duties.”
N.C. State Bd. of Educ. v. State, No. 16 CVS 15607 (N.C. Super. Ct. Wake County July 14, 2017), at 4-5 (unpublished) [hereinafter Memorandum] (last alteration in original) (quoting State v. Camacho, 329 N.C. 589, 596, 406 S.E.2d 868, 872 (1991)). The three-judge panel paid particular attention to a provision of the newly enacted legislation providing that the Superintendent will “have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system,” ch. 126, sec. 4, 2017-1, N.C. Adv. Legis. Serv. at 39 (amending
On 20 July 2017, the Board noted an appeal to the Court of Appeals from the three-judge panel‘s order. On 5 September 2017, the Board requested the three-judge panel to continue to stay its decision pending completion of all proceedings on appeal. On 11 September 2017, the three-judge panel entered an order allowing the existing stay to remain in effect until a hearing on the extension motion could be held. On 20 September 2017, the Board sought a temporary stay and a writ of supersedeas from the Court of Appeals, which, on 5 October 2017, granted the requested temporary relief “to the extent that the challenged provisions of [Session Law 2016-126] empower the Superintendent of Public Instruction to enter into statewide contracts for the public school system which could not be terminated by the Board immediately upon any decision by our Court in this matter which determines that the Board has the authority under our State Constitution to enter into such contracts.” On 5 October 2017, the Board sought a temporary stay and the issuance of a writ of supersedeas from this Court, which granted a temporary stay on 16 October 2017 and allowed the Board‘s supersedeas petition on 7 December 2017. On 15 November 2017, the Board filed a petition with this Court seeking discretionary review of the three-judge panel‘s order prior to determination by the Court of Appeals. We allowed the Board‘s discretionary review petition on 7 December 2017.
In seeking relief from the three-judge panel‘s decision from this Court, the Board argues that the panel erroneously concluded that Session Law 2016-126 did not impermissibly transfer authority from the Board to the Superintendent given the newly enacted statutory language providing that “[i]t shall be the duty of the Superintendent” to “have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system” and to “administer funds appropriated for the operations of the State Board of Education and for aid to local school administrative units.” Ch. 126, sec. 4, 2017-1 N.C. Adv. Legis. Serv. at 38-40 (amending
The Board contends that a decision to transfer its constitutional authority to the Superintendent “defies the intent of the framers” of the North Carolina Constitution, who included the Board and its powers in the constitution in order to effectuate Article I, Section 15 of the same document, which provides that “[t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” Although the constitutional provisions establishing the Board and defining its authority have been amended on a number of occasions, the authority granted to the Board by the 1868 constitution, which provided that “[t]he Board of Education . . . shall have full power to legislate and make all needful rules and regulations in relation to Free Public Schools,” and that “all acts, rules and regulations of said Board may be altered, amended or repealed by the General Assembly, and when so altered, amended or repealed, . . . shall not be re-enacted by the Board,”
This Court should not, according to the Board, interpret the constitutional reference in Article IX, Section 5, subjecting the Board‘s authority “to laws enacted by the General Assembly,” to allow the General Assembly to reassign the Board‘s authority to the Superintendent. According to the Board, such an interpretation ignores the principle set out by this Court in State v. Lewis, 142 N.C. 626, 631, 55 S.E. 600, 602 (1906), to the effect that state constitutions must be construed “as limitations upon the power of the state Legislature” and fails to give effect to each and every word contained in the text of the constitutional provisions that delineate the Board‘s authority rather than “lean[ing] in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory,” first citing Town of Boone v. State, 369 N.C. 126, 132, 794 S.E.2d 710, 715 (2016); then quoting Board of Education of Macon County v. Board of Com‘rs of Macon County, 137 N.C. 310, 312, 49 S.E. 353, 354 (1904). Furthermore, the Board points out that such an interpretation has no limiting principle and would allow the General Assembly to “remove constitutional entities or officers, replace them with individuals who better suit its political agenda, and effectively remake state government in its image.”
The Superintendent argues that the trial court correctly ruled that Session Law 2016-126, which was intended, in part, to “reinforce[ ] the State Board‘s traditional role as the chief policy-setting, general administrative body for the schools,” did not violate the Constitution by “disenfranchising” the Board. According to the Superintendent, nearly every statutory provision reworked in Session Law 2016-126 contains language subjecting the Superintendent‘s actions to “rules and regulations adopted by the State Board of Education.” In addition, the Superintendent argues that the provision making the
The Superintendent further argues that the General Assembly has the authority to allocate education-related responsibilities to the Superintendent, who is an elective constitutional officer who “stands on an equal constitutional footing with the State Board” and whose power stems from Article IX, Section 4, and Article III, Section 7(2), which provide that the Superintendent‘s “duties shall be prescribed by law” and whose office has “inherent functions” relating to public education, just like the Board. Prior to 1995, the relevant provisions of the General Statutes indicated that the Superintendent was the “chief day-to-day, or direct, administrator of the State‘s public schools,” with the Board serving as the “chief policy-setting, general administrative body for the schools,” with this structure clearly recognizing that the Superintendent occupies a full-time position while the Board meets for a “a total of 18 days a year.” According to the Superintendent, Session Law 2016-126 is nothing more than “the latest of a series of efforts by the General Assembly over at least the past 50 years to attain an optimal allocation of authority and duties among the entities charged with overseeing the State‘s public school system.”
In the Superintendent‘s view, “the People of North Carolina have chosen what is essentially a bicameral approach to the operation of the State‘s public school system,” having “provid[ed] for two entities to exercise powers and duties simultaneously within a single field of government activity.” In light of the unique nature of this constitutional assignment of authority, it makes sense that each entity‘s authority would be “subject to laws enacted” by the General Assembly. In the event that the Board‘s authority to “supervise and administer” was not “subject to laws enacted by the General Assembly,” there would be no point in having an elective Superintendent. As a result, “[t]he citizens of North Carolina have decreed that a Superintendent and a State Board shall oversee the public school system, have granted the General Assembly the authority to allocate powers and duties among them, and have empowered the General Assembly to make changes to such allocations of powers and duties to meet the changing priorities of the People over time.”
Similarly, the State argues that Session Law 2016-126 has not imposed an unconstitutional limitation upon the Board‘s authority over the public education system because it specifies that “[t]he general supervision and administration of the free public school system shall be vested in the State Board of Education,” provides that the Board “shall establish all needed rules and regulations for the system of free public schools,” and retains much of the Board‘s existing authority over public education, including, among other things, the Board‘s authority to make budgets,
According to the State, most of the changes that Session Law 2016-126 makes to the existing educational laws constitute statutory changes that have no constitutional significance. The State asserts that the “Board does not contend that the General Assembly must be restrained in its allocation of statutory, rather than constitutional, duties,” with “the General Assembly‘s allocation of the statutory duties to the Superintendent [being] within its legislative authority.” The State argues that the General Assembly‘s authority over the public schools, which antedates that of both the Board or the Superintendent, represents the “sturdiest leg of the three-legged design created by the framers” to govern the operation of the public schools, with the General Assembly having the authority “to shape [the] particulars of [the] relationship” between the Board and the Superintendent and to “enact laws that may limit and define the extent of the Board‘s and the Superintendent‘s authority over public education.” In addition, the State joins the Superintendent in asserting that the Superintendent has “inherent constitutional authority” by virtue of his role as “chief administrative officer of the State Board of Education.” In view of the fact that the Superintendent is required to “administer all needed rules and regulations adopted by the State Board of Education through the Department of Public Instruction,” the General Assembly has appropriately limited the Superintendent‘s authority to that authorized by the relevant constitutional provisions, citing
“[A] statute enacted by the General Assembly is presumed to be constitutional,” Wayne Cty. Citizens Ass‘n v. Wayne Cty. Bd. of Commr‘s, 328 N.C. 24, 29, 399 S.E.2d 311, 314-15 (1991) (citation omitted), and “will not be declared unconstitutional unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable ground,” id. at 29, 399 S.E.2d at 315 (citing, inter alia, Poor Richard‘s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697, 698 (1988)). Put another way, since “[e]very presumption favors the validity of a statute,” that statute “will not be declared invalid unless its unconstitutionality be determined beyond reasonable doubt.” Baker v. Martin, 330 N.C. 331, 334, 410 S.E.2d 887, 889 (1991) (quoting Gardner v. City of Reidsville, 269 N.C. 581, 595, 153 S.E.2d 139, 150 (1967)). “[A] facial challenge to the constitutionality of an act . . . is the ‘most difficult challenge to mount successfully,’ ” Hart v. State, 368 N.C. 122, 131, 774 S.E.2d 281, 288 (2015) (quoting Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm‘rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009)), with the challenger being required to show “that there are no circumstances under which the statute might be constitutional,” Beaufort Cty. Bd. of Educ., 363 N.C. at 502, 681 S.E.2d at 280 (citations omitted). “Where a statute is susceptible of two interpretations, one of which is constitutional and the other not, the courts will adopt the former and reject the latter.” Wayne Cty. Citizens Ass‘n, 328 N.C. at 29, 399 S.E.2d at 315 (citing Rhodes v. City of Asheville, 230 N.C. 759, 53 S.E.2d 313 (1949)). Before noting that, “[i]n respect to legislative offices, it is entirely within the power of the Legislature to deal with them as public policy may suggest and public interest may demand,” Mial, 134 N.C. at 162, 46 S.E. at 971, this Court stated that,
The Board asserts that several provisions of Session Law 2016-126 contravene the provisions of Article IX, Section 5 of the North Carolina Constitution, which provides that the Board “shall supervise and administer the free public school system and the educational funds provided for its support,” with the exception of certain funds enumerated in Article IX, Section 7, “and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.” In addition, however, Article IX, Section 4 provides that “[t]he Superintendent of Public Instruction shall be the secretary and chief administrative officer of the State Board of Education,” while Article III, Sections 7 and 8 provide that the Superintendent is an “elective officer[ ]” and member of the Council of State whose “duties shall be prescribed by law.” As a reading of the plain language of the relevant constitutional provisions clearly suggests, the Board, the Superintendent, and the General Assembly all have constitutionally based roles in the governance and operation of the public school system in North Carolina. On the one hand, the Board has the authority to “supervise and administer the free public school system and the educational funds provided for its support” and to “make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.”
Session Law 2016-126 made several changes to the “administrative duties” of the Superintendent as enumerated in
- “organize and establish a Department of Public Instruction which shall include divisions and departments for supervision and administration of the public system”
- “administer the funds appropriated for the operation of the Department of Public Instruction, in accordance with all needed rules and regulations adopted by the State Board of Education”
- “enter into contracts for the operations of the Department of Public Instruction;”
- “control and manag[e]” “all appointments of administrative and supervisory personnel to the staff of the Department of Public Instruction and the State Board of Education, except for certain personnel appointed
by the State Board of Education,” and to “terminate these appointments in conformity with . . . the North Carolina Human Resources Act” - “have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system”
- “[c]reate and administer special funds within the Department of Public Instruction to manage funds received as grants from nongovernmental sources in support of public education in accordance with G.S. 115C-410”
- “administer, through the Department of Public Instruction, all needed rules and regulations established by the State Board of Education”
- “have under his or her direction and control all matters relating to the provision of staff services, except certain personnel appointed by the State Board as provided in G.S. 115C-11(j)” and
- “have under his or her direction and control all matters relating to the . . . support of the State Board of Education, including implementation of federal programs on behalf of the State Board.”
Ch. 126, sec. 4, 2017-1 N.C. Adv. Legis. Serv. at 38-39 (amending
subparagraphs contained in
- “communicate to the public school administrators all information and instructions regarding needed rules and regulations adopted by the Board,” and
- “perform such other duties as may be necessary and appropriate for the Superintendent of Public Instruction in the role as secretary to the Board.”
Id. at 39-40 (amending
Session Law 2016-126 modified the division of responsibility between the Board and the Superintendent in other ways as well. Aside from making the Superintendent the administrative head of the Department of Public Instruction, id., secs. 9, 10, 11 at 44 (amending
- “carry out the duties prescribed under G.S. 115C-21 as the administrative head of the Department of Public Instruction . . . . [and] administer all needed rules and regulations adopted by the State Board of Education through the Department of Public Instruction.”
Id., secs. 1, 3, at 38. In addition, the General Assembly amended
The General Assembly‘s description of Session Law 2016-126 as “clarify[ing]” the Superintendent‘s “role as the administrative head of the Department of Public Instruction” reflects that body‘s expressly stated intent “to restore authority to the Superintendent of Public Instruction as the administrative head of the Department of Public Instruction and the Superintendent‘s role in the direct supervision of the public school system,” id., sec. 30, at 50, and to assign several duties to the Superintendent that he or she either did not have or carried out subject to the Board‘s “direction, control, and approval” under prior law. The resulting statutory changes, which make the Superintendent the chief administrative officer for the Department of Public Instruction, give the Superintendent the authority to hire and fire the Department‘s employees and a large majority of the Board‘s employees, and authorize the Superintendent to manage certain funds available for the support of the publicschools, also provide that the Superintendent‘s actions are subject to rules and regulations adopted by the Board. For that reason, these statutory changes do not strike us as inconsistent with the Superintendent‘s constitutional authority as the “secretary and chief administrative officer of the State Board of Education” and as an “elective officer [ ]” whose “duties shall be prescribed by law.”
General Assembly‘s decision to give greater administrative authority to the Superintendent in Session Law 2016-126
The essence of the Board‘s challenge to the validity of the statutory changes worked by Session Law 2016-126 rests upon a legislative determination that the Superintendent should “have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system.” Ch. 126, sec. 4, 2017-1 N.C. Adv. Legis. Serv. at 39 (amending
The Board directs a similar argument against the provisions of Session Law 2016-126 transferring the authority to administer the funds provided for the operation of the public school system to the Superintendent, subject to rules and regulations adopted by the Board. More specifically, the Board asserts that section 4 of Session Law 2016-126 (enacting
The same logic precludes us from accepting the Board‘s challenges to other transfers of fiscal authority worked by Session Law 2016-126. Although the Board argues that the newly enacted provisions requiring the Superintendent to “collect and organize information regarding the public schools, on the basis of which he or she shall furnish the Board such tabulations and reports as may be required by the Board,” ch. 126, sec. 4, 2017-1 N.C. Adv. Legis. Serv. at 40 (amending
Our decision that the statutory changes worked by Session Law 2016-126 do not, at least on their face, invade the Board‘s constitutional authority under
Assembly‘s repeated use of the phrase “rules and regulations,” rather than “rules,” in each of the newly enacted provisions transferring authority from the Board to the Superintendent subject to “rules and regulations” adopted by the Board contained in Session Law 2016-126 suggests that the General Assembly did not contemplate that the exercise of the Board‘s general supervisory and administrative authority over the public education system would be exclusively effectuated through the use of the formal rulemaking process described in the Administrative Procedure Act, which applies to explicitly defined “rules” rather than to “rules and regulations.” Secondly, we need not make our decision explicitly dependent upon this logic because, even if the General Assembly intended the repeated references to “rules and regulations” in Session Law 2016-126 to be equivalent to “rules” as defined in the Administrative Procedure Act, we do not believe that the formal rulemaking provisions of the Administrative Procedure Act apply to the “rules and regulations” referenced in Session Law 2016-126.
In reaching the second of these two conclusions, we note that the Administrative Procedure Act excludes a number of agency actions from the ambit of its rulemaking provisions.
compliant rules could cast serious doubt upon the constitutionality of at least some of the statutory provisions enacted in Session Law 2016-126, we hold that the “needed rules and regulations” to which Session Law 2016-126 refers are not subject to the rulemaking requirements of the Administrative Procedure Act.
Our decision to interpret the relevant statutory language in this fashion is further bolstered by the fact that, in at least two instances, the General Assembly substituted the phrase “needed rules and regulations” for the word “policy.” As the three-judge panel noted, this amendment tends to make the relevant statutory language consistent with the language in which Article IX, Section 5, is couched rather than to suggest the existence of a legislative intention to make a substantive change in law. See ch. 126, sec. 2, 2017-1 N.C. Adv. Legis. Serv. at 38 (providing that “[t]he State Board of Education shall establish all needed rules and regulations for the system of free public schools, subject to laws enacted by the General Assembly“); id., sec. 4, at 39-40 (amending
administrative authority over the Superintendent set out in Session Law 2016-126 through the promulgation of Administrative Procedure Act-compliant rules.3
Thus, for the reasons set forth in greater detail above, we hold that the enactment of Session Law 2016-126 does not, at least on its face, contravene
AFFIRMED.
Chief Justice MARTIN did not participate in the consideration or decision of this case.
N.C. STATE BD. OF EDUC. V. STATE
Hudson, J., concurring in result
Justice HUDSON concurring in result.
I agree with the majority that the enactment of Session Law 2016-126 does not on its face contravene