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In Case on Governor's Power, Judges Rule in Favor of McCrory

In what Gov. Pat McCrory hailed as a historic decision, a three-judge panel Monday unanimously ruled in his favor in a landmark challenge to the General Assembly.

By Jim Morrill

In what Gov. Pat McCrory hailed as a historic decision, a three-judge panel Monday unanimously ruled in his favor in a landmark challenge to the General Assembly.

At issue was the separation of powers, specifically whether the legislature has the power to appoint members of certain commissions or whether the governor has sole authority.

The panel, led by Wake County Superior Court Judge Howard Manning, ruled that the the Coal Ash Commission and two others "are each adminstrative or executive in character."

"The statutes creating these commissions, enacted by the Legislature, provide for the legislative appointment of some of the members, thereby constituting an impermissible ... encroachment by the legislative branch of government on the executive branch ... in violation of the North Carolina Constitution," the judges wrote.

The ruling came less than two weeks after lawyers for both sides argued their case before the panel. It will be automatically appealed to the state Supreme Court.

At the hearing in support of McCrory were two former governors, Democrat Jim Hunt and Republican Jim Martin.

"This historic and unanimous ruling respects and restores the separation of powers," McCrory said in a statement. "I'm proud to stand up for our Constitution and the citizens of North Carolina. I'd like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort."

Senate President Pro Tem Phil Berger and House Speaker Tim Moore, both Republicans, promised to appeal.

"We are disappointed in today's decision that disregards a century of rulings from our state Supreme Court and will appeal," they said in a statement.

"The trial court's new interpretation of the constitution represents 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 panel, however, said in their ruling that they were keeping the established constitutional balance. It dismissed suggestions to the contrary.

It found some of the General Assembly's arguments "borderline specious." When the governor first compalined about the legislative appointment, it said, "the legislature brushed these objections aside like a knife through hot butter."

Among the spectators: former Govs. Jim Hunt and Jim Martin.

"It's fundamental," Martin said of the principles involved. "It will determine whether the N.C. Constitution means what it says."

McCrory also welcomed the ruling.

"This historic and unanimous ruling respects and restores the separation of powers," said McCrory. "I'm proud to stand up for our Constitution and the citizens of North Carolina. I'd like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort to protect the principles of our state."

The case stemmed from the General Assembly's creation of the Coal Ash 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.

(c)2015 The Charlotte Observer (Charlotte, N.C.)

Caroline Cournoyer is GOVERNING's senior web editor.
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