Mailing Address: P.O. Box 27255 Raleigh, NC 27611-7255

Phone: (919) 733-7173 Fax: (919) 715-0135

NOTICE MEETING OF THE STATE BOARD OF ELECTIONS

The State Board of Elections will hold a public meeting by teleconference on Wednesday, February 22, 2017 at 2:15 p.m. Interested members of the public may hear proceedings by dialing (562) 247-8422 (code: 128-956-572). Materials will be available at http://go.usa.gov/x9Jas.

The meeting is called pursuant to the written petition of two or more members filed under G.S. § 163-20(a).

TENTATIVE AGENDA

Call to order

Statement regarding ethics and conflicts of interest G.S. § 138A-15(e)

Discussion regarding status of Cooper v. Berger & Moore (P 17-101; 16 CVS 15636) Resources: S.L. 2016-125 Motions for Summary Judgement: Plaintiff’s Brief Defendants’ Brief Adjourn

Additional Resources: Motion to Dismiss State v. NAACP et al. (filed Feb. 21) Supreme Court Docket (updated Feb. 21 at 6:30PM) Petition for Writ of Certiorari (filed Dec. 27) Letter from Legislative Leadership (dated Feb. 21)

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Separator Page

Statement regarding

2/384 Statement regarding ethics: GS 138-15(e) In accordance with the State Government Ethics Act, it is the duty of every Board member to avoid both conflicts of interest and appearances of conflict. Does any Board member have any known conflict of interest or appearance of conflict with respect to any matters coming before the [Board] today? If so, please identify the conflict or appearance of conflict and refrain from any undue participation in the particular matter.

3/384 Separator Page

S.L. 2016-125

4/384 GENERAL ASSEMBLY OF NORTH CAROLINA FOURTH EXTRA SESSION 2016

SESSION LAW 2016-125 SENATE BILL 4

AN ACT TO CONSOLIDATE THE FUNCTIONS OF ELECTIONS, CAMPAIGN FINANCE, LOBBYING, AND ETHICS UNDER ONE STATE AGENCY BY CREATING THE NORTH CAROLINA BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS ENFORCEMENT; TO CLARIFY THE GENERAL ASSEMBLY'S AUTHORITY TO CORRECT DEFECTS IDENTIFIED BY A COURT IN APPORTIONMENT OR DISTRICTING PLANS; TO RESTORE PARTISAN ELECTIONS FOR THE NORTH CAROLINA SUPREME COURT AND COURT OF APPEALS; TO MODIFY APPELLATE REVIEW OF CERTAIN CASES; AND TO MODIFY THE TERM FOR INDUSTRIAL COMMISSIONERS.

The General Assembly of North Carolina enacts:

PART I. CREATION OF BIPARTISAN STATE BOARD OF ELECTIONS AND ETHICS ENFORCEMENT SECTION 1. Recodification; Technical and Conforming Changes. – The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 138B of the General Statutes to be entitled "Elections and Ethics Enforcement Act," as enacted by Section 2 of this act. The Revisor may also recodify into the new Chapter 138B of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate. The new Chapter 138B of the General Statutes shall have the following structure: SUBCHAPTER I. GENERAL PROVISIONS Article 1. Bipartisan State Board of Elections and Ethics Enforcement. SUBCHAPTER II. ETHICS AND LOBBYING Article 5. General Provisions. Article 6. Public Disclosure of Economic Interests. Article 7. Ethical Standards for Covered Persons. Article 8. Lobbying. Part 1. Registration Part 2. Prohibitions and Restrictions Part 3. Reporting Part 4. Liaison Personnel Part 5. Exemptions Part 6. Miscellaneous Article 9. Violation Consequences. SUBCHAPTER III. ELECTION AND ELECTION LAWS Article 15. Time of Primaries and Elections. Part 1. Time of Primaries and Elections Part 2. Time of Elections to Fill Vacancies Article 16. Election Officers. Part 1. State Board Powers and Duties

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Part 2. County Boards of Elections Part 3. Political Activities by Board of Elections Members and Employees Part 4. Precinct Election Officials Article 17. Qualifying to Vote. Part 1. Qualifications of Voters Part 2. Registration of Voters Part 3. Challenges Part 4. HAVA Administrative Complaint Procedure Article 18. Political Parties. Article 19. Nomination of Candidates. Part 1. Primary Elections Part 2. Nomination by Petition Part 3. Challenge to Candidacy Article 20. Conduct of Primaries and Elections. Part 1. Precincts and Voting Places Part 2. Precinct Boundaries Part 3. Voting Part 4. Counting Official Ballots, Canvassing Votes, Hearing Protests, and Certifying Results Part 5. Members of United States House of Representatives Part 6. Presidential Electors Part 7. Presidential Preference Primary Act Part 8. Petitions for Elections and Referenda Article 21. Absentee Voting. Part 1. Absentee Ballot Part 2. Uniform Military and Overseas Voters Act Article 22. Regulation of Election Campaigns. Part 1. Corrupt Practices and Other Offenses Against the Elective Franchise Article 23. Regulating Contributions and Expenditures in Political Campaigns. Part 1. In General Part 2. Disclosure Requirements for Media Advertisements Part 3. Municipal Campaign Reporting Article 24. The North Carolina Public Campaign Fund. Article 25. The Voter-Owned Elections Act. Article 26. Legal Expense Funds. Article 27. Municipal Elections. Part 1. Municipal Election Procedure Part 2. Conduct of Municipal Elections Article 28. Nomination and Election of Appellate, Superior, and District Court Judges. When recodifying, the Revisor is authorized to change all references to the State Ethics Commission, to the State Board of Elections, or to the Secretary of State, to instead be references to the Bipartisan State Board of Elections and Ethics Enforcement. The Revisor may separate subsections of existing statutory sections into new sections and, when necessary to organize relevant law into its proper place in the above structure, may rearrange sentences that currently appear within subsections. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as "Chapter," "Subchapter," "Article," "Part," "section," and "subsection," adjust the order of lists of multiple statutes to maintain statutory order, correct terms and conform names and titles changed by this act, eliminate duplicative references to the Bipartisan State Board of Elections and Ethics Enforcement that result from the changes authorized by this section, and make 6/384 Page 2 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016 conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement on this recodification. SECTION 2.(a) The General Statutes are amended by adding a new Chapter to read: "Chapter 138B. "Elections and Ethics Enforcement Act." SECTION 2.(b) Chapter 138B of the General Statutes, as enacted by this act, is amended by adding a new Subchapter to read: "SUBCHAPTER I. GENERAL PROVISIONS." SECTION 2.(c) Subchapter I of Chapter 138B of the General Statutes, as enacted by this act, is amended by adding a new Article to read: "Article 1. "Bipartisan State Board of Elections and Ethics Enforcement. "§ 138B-1. Bipartisan State Board of Elections and Ethics Enforcement established. There is established the Bipartisan State Board of Elections and Ethics Enforcement, referred to as the State Board in this Chapter. "§ 138B-2. Membership. (a) The State Board shall consist of eight individuals registered to vote in North Carolina, as follows: (1) Four members shall be appointed by the Governor, two of whom shall be of the political party with the highest number of registered affiliates and two of whom shall be of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board. The Governor shall appoint two members each from a list of three nominees submitted by the State party chairs of the two political parties with the highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board. (2) Two members shall be appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as provided in G.S. 120-121. One member shall be of the political party with the highest number of registered affiliates and one member shall be of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board. All appointments shall be from a list of three nominees submitted to the Speaker of the House of Representatives by the majority leader of the House of Representatives and a list of three nominees submitted to the Speaker of the House of Representatives by the minority leader of the House of Representatives. (3) Two members shall be appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as provided in G.S. 120-121. One member shall be of the political party with the highest number of registered affiliates and one member shall be of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board. All appointments shall be from a list of three nominees submitted to the President Pro Tempore by the majority leader of the Senate and a list of three nominees submitted to the President Pro Tempore by the minority leader of the Senate. (b) Members shall serve for four-year terms, beginning May 1 immediately following the election of the Governor. 7/384 Senate Bill 4 Session Law 2016-125 Page 3 General Assembly Of North Carolina Fourth Extra Session 2016

(c) Members shall be removed by the member's appointing authority from the State Board only for misfeasance, malfeasance, or nonfeasance. (d) Any vacancy occurring on the State Board shall be filled by an individual affiliated with the same political party of the vacating member. Any vacancy occurring in the State Board in an appointment made by the Governor shall be filled by the Governor, and the person so appointed shall fill the unexpired term. The Governor shall fill the vacancy from a list of two names submitted by the State party chair of the political party with which the vacating member was affiliated if that list is submitted within 30 days of the occurrence of the vacancy. Any vacancy occurring on the State Board in an appointment made by the General Assembly upon the recommendation of the Speaker of the House of Representatives shall be filled in accordance with G.S. 120-122 for the remainder of the unfulfilled term. Any vacancy occurring on the State Board in an appointment made by the General Assembly upon the recommendation of the President Pro Tempore of the Senate shall be filled in accordance with G.S. 120-122 for the remainder of the unfulfilled term. (e) At the first meeting held after new appointments are made, the members of the State Board shall take the following oath: "I, ______, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina and to the constitutional powers and authorities which are or may be established for the government thereof; that I will endeavor to support, maintain, and defend the Constitution of said State; and that I will well and truly execute the duties of the office of member of the Bipartisan State Board of Elections and Ethics Enforcement according to the best of my knowledge and ability, according to law, so help me God." (f) At the first meeting in May, the State Board shall organize by electing one of its members chair and one of its members vice-chair, each to serve a one-year term as such. In the odd-numbered year, the chair shall be a member of the political party with the highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the vice-chair a member of the political party with the second highest number of registered affiliates. In the even-numbered year, the chair shall be a member of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the vice-chair a member of the political party with the highest number of registered affiliates. (g) At the first meeting held after new appointments are made after taking the oath, the State Board shall elect one of its members secretary, to serve a four-year term as such. (h) No person shall be eligible to serve as a member of the State Board who holds any elective or appointive office under the government of the United States, the State of North Carolina, or any political subdivision thereof. No person who holds any office in a political party or organization, or who is a candidate for nomination or election to any office, or who is a campaign manager or treasurer of any candidate in a primary or election shall be eligible to serve as a member of the State Board. In addition, no person while serving on the State Board shall: (1) Make a reportable contribution to a candidate for a public office over which the State Board would have jurisdiction or authority. (2) Register as a lobbyist under Article 8 of this Chapter. (3) Make written or oral statements intended for general distribution or dissemination to the public at large supporting or opposing the nomination or election of one or more clearly identified candidates for public office. (4) Make written or oral statements intended for general distribution or dissemination to the public at large supporting or opposing the passage of one or more clearly identified referendum or ballot issue proposals. 8/384 Page 4 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

(5) Solicit contributions for a candidate, political committee, or referendum committee. (i) Members of the State Board shall receive per diem, subsistence, and travel, as provided in G.S. 138-5 and G.S. 138-6. "§ 138B-3. Meetings; quorum; majority. The State Board shall meet at least monthly and at other times as called by its chair or by six of its members. In the case of a vacancy in the chair, meetings may be called by the vice-chair. Six members of the State Board constitute a quorum for the transaction of business. Except where required by law to act unanimously, a majority vote for action of the State Board shall require six of the eight members. "§ 138B-4. Powers of the State Board in the execution of State Board duties. (a) In the performance of the duties enumerated in this Chapter, the State Board, upon a vote of six or more of its members, shall have power to administer oaths, issue subpoenas, summon witnesses, and compel the production of papers, books, records, and other evidence. Such subpoenas for designated witnesses or identified papers, books, records, and other evidence shall be signed and issued by the chair. (b) In the absence of the chair or upon the chair's refusal to act, the vice-chair may sign and issue subpoenas, summon witnesses, and compel the production of papers, books, records, and other evidence approved in accordance with subsection (a) of this section. In the absence of the chair or upon the chair's refusal to act, any member of the State Board may administer oaths. (c) The State Board, upon a vote of six or more of its members, may petition the Superior Court of Wake County for the approval to issue subpoenas and subpoenas duces tecum as necessary to conduct investigations of violations of this Chapter. The court shall authorize subpoenas under this subsection when the court determines they are necessary for the enforcement of this Chapter. Subpoenas issued under this subsection shall be enforceable by the court through contempt powers. Venue shall be with the Superior Court of Wake County for any nonresident person, or that person's agent, who makes a reportable expenditure under this Chapter, and personal jurisdiction may be asserted under G.S. 1-75.4. "§ 138B-5. Independent agency, staff, and offices. (a) The State Board shall be and remain an independent regulatory and quasi-judicial agency and shall not be placed within any principal administrative department. The State Board shall exercise its statutory powers, duties, functions, and authority and shall have all powers and duties conferred upon the heads of principal departments under G.S. 143B-10. (b) The State Board may employ professional and clerical staff, including an Executive Director. "§ 138B-6. Executive Director of the State Board. (a) There is hereby created the position of Executive Director of the State Board, who shall perform all duties imposed by statute and such duties as may be assigned by the State Board. (b) The State Board shall appoint an Executive Director for a term of four years with compensation to be determined by the Office of State Human Resources. The Executive Director shall serve beginning May 15 after the first meeting held after new appointments to the State Board are made, unless removed for cause, until a successor is appointed. In the event of a vacancy, the vacancy shall be filled for the remainder of the term. (c) The Executive Director shall be responsible for staffing, administration, execution of the State Board's decisions and orders, and shall perform such other responsibilities as may be assigned by the State Board. (d) The Executive Director shall be the chief State elections official." SECTION 3.(a) G.S. 138A-6 is repealed. SECTION 3.(b) G.S. 138A-7 is repealed. 9/384 Senate Bill 4 Session Law 2016-125 Page 5 General Assembly Of North Carolina Fourth Extra Session 2016

SECTION 3.(c) G.S. 138A-8 is repealed. SECTION 3.(d) G.S. 138A-9 is repealed. SECTION 3.(e) G.S. 138A-13 reads as rewritten: "§ 138A-13. Request for advice. ... (a2) A request for a formal advisory opinion under subsection (a) of this section shall be in writing, electronic or otherwise. The Commission State Board shall issue formal advisory opinions having prospective application only. A public servant or legislative employee who relies upon the advice provided to that public servant or legislative employee on a specific matter addressed by the requested formal advisory opinion shall be immune from all of the following: (1) Investigation by the Commission,State Board, except for an inquiry under G.S. 138A-12(b)(3). (2) Any adverse action by the employing entity. (3) Investigation by the Secretary of State. ... (b1) A request by a legislator for a recommended formal advisory opinion shall be in writing, electronic or otherwise. The Commission State Board shall issue recommended formal advisory opinions having prospective application only. Until action is taken by the Committee under G.S. 120-104, a legislator who relies upon the advice provided to that legislator on a specific matter addressed by the requested recommended formal advisory opinion shall be immune from all of the following: (1) Investigation by the Committee or Commission, State Board, except for an inquiry under G.S. 138A-12(b)(3). (2) Any adverse action by the house of which the legislator is a member. (3) Investigation by the Secretary of State. ...." SECTION 4. Chapter 120C of the General Statutes reads as rewritten: "... "§ 120C-101. Rules and forms. (a) The Commission State Board shall adopt any rules or definitions necessary to interpret the provisions of this Chapter and adopt any rules necessary to administer the provisions of this Chapter, except for Articles 2, 4 and 8 of this Chapter. The Secretary of State shall adopt any rules, orders, and forms as are necessary to administer the provisions of Articles 2, 4 and 8 of this Chapter. The Secretary of State may appoint a council to advise the Secretary in adopting rules under this section.Chapter. (b) With respect to the forms adopted under subsection (a) of this section, the Secretary of StateState Board shall adopt rules to protect from disclosure all confidential information under Chapter 132 of the General Statutes related to economic development initiatives or to industrial or business recruitment activities. The information shall remain confidential until the State, a unit of local government, or the business has announced a commitment by the business to expand or locate a specific project in this State or a final decision not to do so, and the business has communicated that commitment or decision to the State or local government agency involved with the project. (c) In adopting rules under this Chapter, the Commission State Board is exempt from the requirements of Article 2A of Chapter 150B of the General Statutes, except that the Commission State Board shall comply with G.S. 150B-21.2(d). At least 30 business days prior to adopting a rule, the CommissionState Board shall: (1) Publish the proposed rules in the North Carolina Register.

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(2) Submit the rule and a notice of public hearing to the Codifier of Rules, and the Codifier of Rules shall publish the proposed rule and the notice of public hearing on the Internet to be posted within five business days. (3) Notify those on the mailing list maintained in accordance with G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a rule and of the public hearing. (4) Accept written comments on the proposed rule for at least 15 business days prior to adoption of the rule. (5) Hold at least one public hearing on the proposed rule no less than five days after the rule and notice have been published. A rule adopted under this subsection becomes effective the first day of the month following the month the final rule is submitted to the Codifier of Rules for entry into the North Carolina Administrative Code, and applies prospectively. A rule adopted by the Commission that does not comply with the procedural requirements of this subsection shall be null, void, and without effect. For purposes of this subsection, a rule is any CommissionState Board regulation, standard, or statement of general applicability that interprets an enactment by the General Assembly or Congress, or a regulation adopted by a federal agency, or that describes the procedure or practice requirements of the Commission.State Board. (d) For purposes of G.S. 150B-21.3(b2), a written objection filed by the Commission to a rule adopted by the Secretary of State pursuant to this Chapter shall be deemed written objections from 10 or more persons under that statute. Notwithstanding G.S. 150B-21.3(b2), a rule adopted by the Secretary of State pursuant to this Chapter objected to by the Commission under this subsection shall not become effective until an act of the General Assembly approving the rule has become law. If the General Assembly does not approve a rule under this subsection by the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the date the Rules Review Commission approves the rule, the permanent rule shall not become effective and any temporary rule associated with the permanent rule expires. If the General Assembly fails to approve a rule by the day of adjournment, the Secretary of State may initiate rulemaking for a new permanent rule, including by the adoption of a temporary rule. "§ 120C-102. Request for advice. (a) At the request of any person, State agency, or governmental unit affected by this Chapter, the CommissionState Board shall render advice on specific questions involving the meaning and application of this Chapter and that person's, State agency's, or any governmental unit's compliance therewith. Requests for advice and advice rendered in response to those requests shall relate to real or reasonably anticipated fact settings or circumstances. (a1) A request for a formal opinion under subsection (a) of this section shall be in writing, electronic or otherwise. The CommissionState Board shall issue formal advisory opinions having prospective application only. An individual, State agency, or governmental unit who relies upon the advice provided to that individual, State agency, or governmental unit on a specific matter addressed by a requested formal advisory opinion shall be immune from all of the following: (1) Investigation by the Commission.State Board. (2) Any adverse action by the employing entity. (3) Investigation by the Secretary of State. (b) Staff to the CommissionState Board may issue advice, but not formal advisory opinions, under procedures adopted by the Commission.State Board. (c) The CommissionState Board shall publish its formal advisory opinions within 30 days of issuance, edited as necessary to protect the identities of the individuals requesting opinions.

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(d) Except as provided under subsections (c) and (d1) of this section, a request for advice, any advice provided by CommissionState Board staff, any formal advisory opinions, any supporting documents submitted or caused to be submitted to the CommissionState Board or CommissionState Board staff, and any documents prepared or collected by the CommissionState Board or the CommissionState Board staff in connection with a request for advice are confidential. The identity of the individual, State agency, or governmental unit making the request for advice, the existence of the request, and any information related to the request may not be revealed without the consent of the requestor. An individual, State agency, or governmental unit who requests advice or receives advice, including a formal advisory opinion, may authorize the release to any other person, the State, or any governmental unit of the request, the advice, or any supporting documents. For purposes of this section, "document" is as defined in G.S. 120-129. Requests for advice, any advice, and any documents related to requests for advice are not "public records" as defined in G.S. 132-1. (d1) Staff to the Commission may share all information and documents related to requests under subsection (a) and (a1) of this section with staff of the Office of the Secretary of State. The information and documents in the possession of the staff of the Office of the Secretary of State shall remain confidential and not public records. The Commission shall forward an unedited copy of each formal advisory opinion under this section to the Secretary of State at the time the formal advisory opinion is issued to the requestor, and the Secretary of State shall treat that unedited advisory opinion as confidential and not a public record. (e) Requests for advisory opinions may be withdrawn by the requestor at any time prior to the issuance of a formal advisory opinion. ... "§ 120C-601. Powers and duties of the Commission.State Board. (a)(a) T Thehe Commission CommissionStateState BoardBoard m mayay i investigatenvestigate compcomplaintslaints of vioviollationsations of t thishis Chapter and shall refer complaints related solely to Articles 2, 4, or 8 of this Chapter to the Secretary of State.State.Chapter.Chapter. (b) The CommissionState Board may petition the Superior Court of Wake County for the approval to issue subpoenas and subpoenas duces tecum as necessary to conduct investigations of violations of this Chapter. The court shall authorize subpoenas under this subsection when the court determines they are necessary for the enforcement of this Chapter. Subpoenas issued under this subsection shall be enforceable by the court through contempt powers. Venue shall be with the Superior Court of Wake County for any nonresident person, or that person's agent, who makes a reportable expenditure under this Chapter, and personal jurisdiction may be asserted under G.S. 1-75.4. (c)(c) ComplaintsComplaints ofof violationsviolations ofof thisthis ChapterChapter andand allall otherother recorecorrdsds accumuaccumulatedlated i inn conjunctionconjunction wwithith tthehe iinvestigationnvestigation ooff tthesehese cocomplaintsmplaints shall be considered confidential records andand may b bee releasedreleased on onlyly b byy ororderder ooff a court ooff competent j jurisurisdiction.diction. Any informationinformation obtainedobtained b byy tthehe Commission CommissionStateState BoardBoard f fromrom any l lawaw enenforcementforcement agency, aadministrativedministrative agency, or regulatoryregulatory organorganizationization oonn a coconfidentialnfidential oorr ootherwitherwisese rrestrictedestricted basisbasis iinn tthehe coucourserse of an iinvestigationnvestigation shallshall bebe confidentialconfidential anandd exempt ffromrom G.SG.S.. 132-6132-6 to the same extent that it isis confidentialconfidential iinn tthehe possessionpossession ofof thethe providingproviding agency or organorganization.ization. (d) The CommissionState Board shall publish annual statistics on complaints, including the number of complaints, the number of apparent violations of this Chapter referred to a district attorney, the number of dismissals, and the number and age of complaints pending. "§ 120C-602. Punishment for violation. (a) Whoever willfully violates any provision of Article 2 or Article 3 of this Chapter shall be guilty of a Class 1 misdemeanor, except as provided in those Articles. In addition, no lobbyist who is convicted of a violation of the provisions of this Chapter shall in any way act as a lobbyist for a period of two years from the date of conviction. 12/384 Page 8 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

(b) In addition to the criminal penalties set forth in this section, the Secretary of State may levy civil fines for a violation of any provision of Articles 2, 4, or 8 of this Chapter up to five thousand dollars ($5,000) per violation. In addition to the criminal penalties set forth in this section, the CommissionState Board may levy civil fines for a violation of any provision of this Chapter except Article 2, 4, or 8 of this Chapter up to five thousand dollars ($5,000) per violation. "§ 120C-603. Enforcement by district attorney and Attorney General. (a) The Commission or the Secretary of State, as appropriate, State Board may investigate complaints of violations of this Chapter and shall report apparent violations of this Chapter to the district attorney of the prosecutorial district as defined in G.S. 7A-60 of which Wake County is a part, who shall prosecute any person or governmental unit who violates any provisions of this Chapter. (b) Complaints of violations of this Chapter involving the CommissionState Board or any member employee of the CommissionState Board shall be referred to the Attorney General for investigation. The Attorney General shall, upon receipt of a complaint, make an appropriate investigation thereof, and the Attorney General shall forward a copy of the investigation to the district attorney of the prosecutorial district as defined in G.S. 7A-60 of which Wake County is a part, who shall prosecute any person or governmental unit who violates any provisions of this Chapter. ...." SECTION 5.(a) G.S. 163-19 is repealed. SECTION 5.(b) G.S. 163-20 reads as rewritten: "§ 163-20. Meetings of Board; quorum; minutes. (a) Call of Meeting. – The State Board of Elections shall meet at the call of the chairman whenever necessary to discharge the duties and functions imposed upon it by this Chapter. The chairman shall call a meeting of the Board upon the written application or applications of any two members thereof. If there is no chairman, or if the chairman does not call a meeting within three days after receiving a written request or requests from two members, any three members of the Board shall have power to call a meeting of the Board, and any duties imposed or powers conferred on the Board by this Chapter may be performed or exercised at that meeting, although the time for performing or exercising the same prescribed by this Chapter may have expired. (b) Place of Meeting. – Except as provided in subsection (c), below, the State Board of Elections shall meet in its offices in the City of Raleigh, or at another place in Raleigh to be designated by the chairman. However, subject to the limitation imposed by subsection (c), below, upon the prior written request of any four six members, the State Board of Elections shall meet at any other place in the State designated by the four six members. (c) Meetings to Investigate Alleged Violations of This Chapter. – When called upon to investigate or hear sworn alleged violations of this Chapter, the State Board of Elections shall meet and hear the matter in the county in which the violations are alleged to have occurred. (d) Quorum. – A majority of the members constitutes a quorum for the transaction of business by the State Board of Elections. If any member of the Board fails to attend a meeting, and by reason thereof there is no quorum, the members present shall adjourn from day to day for not more than three days, by the end of which time, if there is no quorum, the Governor may summarily remove any member failing to attend and appoint his successor. (e) Minutes. – The State Board of Elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the office of the Board in Raleigh." SECTION 5.(c) G.S. 163-21 is repealed. SECTION 5.(d) G.S. 163-23 is repealed. SECTION 5.(e) G.S. 163-26 is repealed. 13/384 Senate Bill 4 Session Law 2016-125 Page 9 General Assembly Of North Carolina Fourth Extra Session 2016

SECTION 5.(f) G.S. 163-27 is repealed. SECTION 5.(g) G.S. 163-28 is repealed. SECTION 5.(h) G.S. 163-30 reads as rewritten: "§ 163-30. County boards of elections; appointments; terms of office; qualifications; vacancies; oath of office; instructional meetings. In every county of the State there shall be a county board of elections, to consist of three four persons of good moral character who are registered voters in the county in which they are to act. Two of the members of the county board of elections shall be of the political party with the highest number of registered affiliates and two shall be of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board. In 2017, members of county boards of elections shall be appointed by the State Board on the second Tuesday in July. Members In 2019, members of county boards of elections shall be appointed by the State Board of Elections on the last Tuesday in June 1985, and every two years thereafter, and their terms of office shall continue for two years from the specified date of appointment and until their successors are appointed and qualified. Not more than two members of the county board of elections shall belong to the same political party. No person shall be eligible to serve as a member of a county board of elections who holds any elective office under the government of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a state, congressional district, county or precinct political party or organization, or who is a campaign manager or treasurer of any candidate or political party in a primary or election, shall be eligible to serve as a member of a county board of elections, provided however that the position of delegate to a political party convention shall not be considered an office for the purpose of this section. No person shall be eligible to serve as a member of a county board of elections who is a candidate for nomination or election. No person shall be eligible to serve as a member of a county board of elections who is the wife, husband, son, son-in-law, daughter, daughter-in-law, mother, mother-in-law, father, father-in-law, sister, sister-in-law, brother, brother-in-law, aunt, uncle, niece, or nephew of any candidate for nomination or election. Upon any member of the board of elections becoming ineligible, that member's seat shall be declared vacant. This paragraph only applies if the county board of elections is conducting the election for which the relative is a candidate. The State chairman chair of each political party shall have the right to recommend to the State Board of Elections three registered voters in each county for appointment to the board of elections for that county. If such recommendations are received by the Board 15 or more days before the last Tuesday in June 1985,2017, and each two years thereafter, it shall be the duty of the State Board of Elections to appoint the county boards from the names thus recommended. Whenever a vacancy occurs in the membership of a county board of elections for any cause the State chairman chair of the political party of the vacating member shall have the right to recommend two registered voters of the affected county for such office, and it shall be the duty of the State Board of Elections to fill the vacancy from the names thus recommended. At the meeting of the county board of elections required by G.S. 163-31 to be held on Tuesday following the third Monday in July in the year of their appointment the members shall take the following oath of office: "I, ______, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina and to the constitutional powers and authorities which are or may be established for the government thereof; that I will endeavor to support, maintain and defend the Constitution of said State, not inconsistent with the Constitution of the United States; and that I will well and truly execute

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the duties of the office of member of the ______County Board of Elections to the best of my knowledge and ability, according to law; so help me God." At the first meeting in July annually, the county boards shall organize by electing one of its members chair and one of its members vice-chair, each to serve a one-year term as such. In the odd-numbered year, the chair shall be a member of the political party with the highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the vice-chair a member of the political party with the second highest number of registered affiliates. In the even-numbered year, the chair shall be a member of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the vice-chair a member of the political party with the highest number of registered affiliates. Each member of the county board of elections shall attend each instructional meeting held pursuant to G.S. 163-46, unless excused for good cause by the chairman chair of the board, and shall be paid the sum of twenty-five dollars ($25.00) per day for attending each of those meetings." SECTION 5.(i) G.S. 163-31 reads as rewritten: "§ 163-31. Meetings of county boards of elections; quorum; majority; minutes. In each county of the State the members of the county board of elections shall meet at the courthouse or board office at noon on the Tuesday following the third Monday in July in the year of their appointment by the State Board of Elections and, after taking the oath of office provided in G.S. 163-30, they shall organize by electing one member chairmanchair and another member secretary of the county board of elections. On the Tuesday following the third Monday in August of the year in which they are appointed the county board of elections shall meet and appoint precinct chief judges and judges of elections. The board may hold other meetings at such times as the chairman chair of the board, or any two three members thereof, may direct, for the performance of duties prescribed by law. A majority of theThree members shall constitute a quorum for the transaction of board business. Except where required by law to act unanimously, a majority vote for action of the board shall require three of the four members. The chairman chair shall notify, or cause to be notified, all members regarding every meeting to be held by the board. The county board of elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the board office and it shall be the responsibility of the secretary, elected by the board, to keep the required minute book current and accurate. The secretary of the board may designate the director of elections to record and maintain the minutes under his or her supervision." SECTION 5.(j) G.S. 163-182.13 reads as rewritten: "§ 163-182.13. New elections. (a) When State Board May Order New Election. – The State Board of Elections may order a new election, upon agreement of at least four six of its members, in the case of any one or more of the following: (1) Ineligible voters sufficient in number to change the outcome of the election were allowed to vote in the election, and it is not possible from examination of the official ballots to determine how those ineligible voters voted and to correct the totals. (2) Eligible voters sufficient in number to change the outcome of the election were improperly prevented from voting. (3) Other irregularities affected a sufficient number of votes to change the outcome of the election. (4) Irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.

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(b) State Board to Set Procedures. – The State Board of Elections shall determine when a new election shall be held and shall set the schedule for publication of the notice, preparation of absentee official ballots, and the other actions necessary to conduct the election. (c) Eligibility to Vote in New Election. – Eligibility to vote in the new election shall be determined by the voter's eligibility at the time of the new election, except that in a primary, no person who voted in the initial primary of one party shall vote in the new election in the primary of another party. The State Board of Elections shall promulgate adopt rules to effect the provisions of this subsection. (d) Jurisdiction in Which New Election Held. – The new election shall be held in the entire jurisdiction in which the original election was held. (e) Which Candidates to Be on Official Ballot. – All the candidates who were listed on the official ballot in the original election shall be listed in the same order on the official ballot for the new election, except in either of the following: (1) If a candidate dies or otherwise becomes ineligible between the time of the original election and the new election, that candidate may be replaced in the same manner as if the vacancy occurred before the original election. (2) If the election is for a multiseat office, and the irregularities could not have affected the election of one or more of the candidates, the new election, upon agreement of at least four six members of the State Board, may be held among only those candidates whose election could have been affected by the irregularities. (f) Tie Votes. – If ineligible voters voted in an election and it is possible to determine from the official ballots the way in which those votes were cast and to correct the results, and consequently the election ends in a tie, the provisions of G.S. 163-182.8 concerning tie votes shall apply." SECTION 5.(k) G.S. 163-278.22(7) reads as rewritten: "(7) To make investigations to the extent the State Board deems necessary with respect to statements filed under the provisions of this Article and with respect to alleged failures to file any statement required under the provisions of this Article or Article 22M of the General Statutes and, upon complaint under oath by any registered voter, with respect to alleged violations of any part of this Article or Article 22M of the General Statutes. The State Board shall conclude all investigations no later than one year from the date of the start of the investigation, unless the State Board has reported an apparent violation to the proper district attorney and additional investigation of the apparent violation is deemed necessary by the State Board." SECTION 6. G.S. 120-70.141 reads as rewritten: "§ 120-70.141. Purpose and powers of Committee. (a) The Joint Legislative Elections Oversight Committee shall examine, on a continuing basis, election administration and campaign finance regulation in North Carolina, in order to make ongoing recommendations to the General Assembly on ways to improve elections administration and campaign finance regulation. In this examination, the Committee shall do the following: (1) Study the budgets, programs, and policies of the Bipartisan State Board of Elections and Ethics Enforcement and the county boards of elections to determine ways in which the General Assembly may improve election administration and campaign finance regulation.administration. (1a) Study the budgets, programs, and policies of the Bipartisan State Board of Elections and Ethics Enforcement and the county boards of elections to determine ways in which the General Assembly may improve campaign finance regulation. 16/384 Page 12 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

(2) Examine election statutes and court decisions to determine any legislative changes that are needed to improve election administration and campaign finance regulation. (3) Study other states' initiatives in election administration and campaign finance regulation to provide an ongoing commentary to the General Assembly on these initiatives and to make recommendations for implementing similar initiatives in North Carolina; and (4) Study any other election matters that the Committee considers necessary to fulfill its mandate. (b) The Committee may make interim reports to the General Assembly on matters for which it may report to a regular session of the General Assembly. A report to the General Assembly may contain any legislation needed to implement a recommendation of the Committee." SECTION 7. Any previous assignment of duties of a quasi-legislative or quasi-judicial nature by the Governor or General Assembly to the agencies or functions transferred by this act shall have continued validity with the transfer under this act. Except as otherwise specifically provided in this act, each enumerated commission, board, or other function of State government transferred to the Bipartisan State Board of Elections and Ethics Enforcement, as created in this act, is a continuation of the former entity for purposes of succession to all the rights, powers, duties, and obligations of the former. Where the former entities are referred to by law, contract, or other document in their former name, the Bipartisan State Board of Elections and Ethics Enforcement, as created in this act, is charged with exercising the functions of the former named entity. SECTION 8. No action or proceeding pending on January 1, 2017, brought by or against the State Board of Elections, the State Ethics Commission, or the Secretary of State regarding the lobbyist registration and lobbying enforcement of the Secretary of State shall be affected by any provision of this act, but the same may be prosecuted or defended in the name of the Bipartisan State Board of Elections and Ethics Enforcement, as created in this act. In these actions and proceedings, the Bipartisan State Board of Elections and Ethics Enforcement or its Executive Director, as appropriate, shall be substituted as a party upon proper application to the courts or other administrative or quasi-judicial bodies. Any business or other matter undertaken or commanded by any State program or office or contract transferred by this act to the Bipartisan State Board of Elections and Ethics Enforcement pertaining to or connected with the functions, powers, obligations, and duties set forth herein, which is pending on January 1, 2017, may be conducted and completed by the Bipartisan State Board of Elections and Ethics Enforcement in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the original program, office, or commissioners or directors thereof. SECTION 9. The consolidation provided for under this act shall not affect any ongoing investigation or audit. Any ongoing hearing or other proceeding before the State Ethics Commission or State Board of Elections on January 1, 2017, shall be transferred to the Bipartisan State Board of Elections and Ethics Enforcement, as created by this act, on January 1, 2017. Prosecutions for offenses or violations committed before January 1, 2017, are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. SECTION 10. Rules adopted by the State Ethics Commission, Secretary of State related to lobbying, and the State Board of Elections shall remain in effect as provided in G.S. 150B-21.7. Policies, procedures, and guidance shall remain in effect until amended or repealed by the Bipartisan State Board of Elections and Ethics Enforcement. The list of covered boards adopted by the State Ethics Commission under G.S. 138A-11 as of December 31, 2016,

17/384 Senate Bill 4 Session Law 2016-125 Page 13 General Assembly Of North Carolina Fourth Extra Session 2016 shall continue in effect until amended or repealed by the Bipartisan State Board of Elections and Ethics Enforcement. SECTION 11. Any evaluation of a statement of economic interest issued by the State Ethics Commission pursuant to Article 3 of Chapter 138A of the General Statutes in 2016 shall remain in effect until amended or repealed by the Bipartisan State Board of Elections and Ethics Enforcement. SECTION 12. The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the State Ethics Commission are transferred to the Bipartisan State Board of Elections and Ethics Enforcement, as created in Part I of this act. The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the State Board of Elections are transferred to the Bipartisan State Board of Elections and Ethics Enforcement, as created in Part I of this act. The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the lobbying registration and lobbying enforcement functions of the Secretary of State are transferred to the Bipartisan State Board of Elections and Ethics Enforcement, as created in Part I of this act. The Director of the Budget shall resolve any disputes arising out of this transfer. SECTION 13. The members of the State Ethics Commission serving on December 31, 2016, shall constitute and serve as the Bipartisan State Board of Elections and Ethics Enforcement, as constituted and authorized by this act until June 30, 2017. The chair and vice-chair of the State Ethics Commission serving on December 31, 2016, shall continue to serve as the chair and vice-chair of Bipartisan State Board of Elections and Ethics Enforcement, as constituted and authorized by this act until June 30, 2017. Notwithstanding G.S. 138B-2, members of the Bipartisan State Board of Elections and Ethics Enforcement appointed by the Governor and General Assembly in 2017 shall take office July 1, 2017. SECTION 14. Until such time as the Bipartisan State Board of Elections and Ethics Enforcement appointed in 2017 appoints an Executive Director, the Executive Director of the State Board of Elections under G.S. 163-26, as of December 31, 2016, shall be acting Executive Director. SECTION 15. The appropriations and resources of the State Ethics Commission is transferred to the Bipartisan State Board of Elections and Ethics Enforcement, and the transfer shall have all the elements of a Type I transfer under G.S. 143A-6. SECTION 16. The appropriations and resources of the State Board of Elections, including any office space of the State Board of Elections, is transferred to the Bipartisan State Board of Elections and Ethics Enforcement, and the transfer shall have all the elements of a Type I transfer under G.S. 143A-6, with the Budget Code for the newly established State Board being the previous State Board of Elections budget code of 18025. SECTION 17. The appropriations and resources of the lobbying registration and lobbying enforcement functions of the Secretary of State are transferred to the Bipartisan State Board of Elections and Ethics Enforcement, and the transfers shall have all the elements of a Type I transfer under G.S. 143A-6. Specifically, the following positions shall be transferred: Lobbying Compliance Director (Position 60008800), Law Enforcement Agent (Position 60008806), Administrative Assistant II (Position 60008801), Administrative Assistant II (Position 60008802), and Administrative Assistant II (Position 60008803). SECTION 18. The Bipartisan State Board of Elections and Ethics Enforcement shall report to the Joint Legislative Commission on Governmental Operations, Joint Legislative Elections Oversight Committee, and the Legislative Ethics Committee on or before April 1,

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2018, and again on or before March 1, 2019, as to recommendations for statutory changes necessary to further implement this consolidation. SECTION 19. Notwithstanding the recodification in Section 1 of this Part, the Bipartisan State Board of Elections and Ethics Enforcement shall not administer or enforce Part 1, Part 3, or Part 6 of Article 8 of Chapter 138B of the General Statutes, and the Secretary of State shall maintain the authority to administer and enforce Articles 2, 4, and 8 of Chapter 120C of the General Statutes, as those Articles existed on January 1, 2017, until October 1, 2017. Section 17 of this Part becomes effective October 1, 2017. G.S. 163-30, as amended by Section 5(h) of this Part and G.S. 163-31, as amended by Section 5(i) of this Part, becomes effective July 1, 2017. G.S. 163-278.22(7), as amended by Section 5(k) of this Part, becomes effective January 1, 2017, and applies to investigations initiated on or after that date. Except as otherwise provided, this Part becomes effective January 1, 2017.

PART II. CLARIFY LEGISLATIVE AUTHORITY TO APPORTION DISTRICTS SECTION 20.(a) G.S. 120-2.4 reads as rewritten: "§ 120-2.4. Opportunity for General Assembly to remedy defects. (a) If the General Assembly enacts a plan apportioning or redistricting State legislative or congressional districts, in no event may a court impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court in its findings of fact and conclusions of law. That period of time shall not be less than two weeks. In the event the General Assembly does not act to remedy any identified defects to its plan within that period of time, the court may impose an interim districting plan for use in the next general election only, but that interim districting plan may differ from the districting plan enacted by the General Assembly only to the extent necessary to remedy any defects identified by the court. (b) Notwithstanding any other provision of law or authority of the State Board of Elections under Chapter 163 of the General Statutes, the State Board of Elections shall have no authority to alter, amend, correct, impose, or substitute any plan apportioning or redistricting State legislative or congressional districts other than a plan imposed by a court under this section or a plan enacted by the General Assembly." SECTION 20.(b) G.S. 163-22 is amended by adding two new subsections to read: "(r) Nothing in this Chapter shall grant authority to the State Board of Elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting State legislative or congressional districts other than a plan imposed by a court under G.S. 120-2.4 or a plan enacted by the General Assembly. (s) Nothing in this Chapter shall grant authority to the State Board of Elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting districts for a unit of local government other than a plan imposed by a court, a plan enacted by the General Assembly, or a plan adopted by the appropriate unit of local government under statutory or local act authority." SECTION 20.(c) G.S. 163-33 is amended by adding two new subdivisions to read: "(15) Nothing in this Chapter shall grant authority to county boards of elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting State legislative or congressional districts other than a plan imposed by a court under G.S. 120-2.4 or a plan enacted by the General Assembly. (16) Nothing in this Chapter shall grant authority to county boards of elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting districts for a unit of local government other than a plan imposed by a court, a plan enacted by the General Assembly, or a plan

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adopted by the appropriate unit of local government under statutory or local act authority." SECTION 20.(d) G.S. 163-27.1 reads as rewritten: "§ 163-27.1. Emergency powers. (a) The Executive Director, as chief State elections official, may exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following: (1) A natural disaster. (2) Extremely inclement weather. (3) An armed conflict involving Armed Forces of the United States, or mobilization of those forces, including North Carolina National Guard and reserve components of the Armed Forces of the United States. In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised. (b) Nothing in this Chapter shall grant authority to the State Board of Elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting State legislative or congressional districts other than a plan imposed by a court under G.S. 120-2.4 or a plan enacted by the General Assembly. (c) Nothing in this Chapter shall grant authority to the State Board of Elections to alter, amend, correct, impose, or substitute any plan apportioning or redistricting districts for a unit of local government other than a plan imposed by a court, a plan enacted by the General Assembly, or a plan adopted by the appropriate unit of local government under statutory or local act authority."

PART III. PARTISAN APPELLATE COURT ELECTIONS SECTION 21.(a) G.S. 163-106 reads as rewritten: "§ 163-106. Notices of candidacy; pledge; with whom filed; date for filing; withdrawal. … (c) Time for Filing Notice of Candidacy. – Candidates seeking party primary nominations for the following offices shall file their notice of candidacy with the State Board of Elections no earlier than 12:00 noon on the second Monday in February and no later than 12:00 noon on the last business day in February preceding the primary: Governor Lieutenant Governor All State executive officers Justices of the Supreme Court Judges of the Court of Appeals United States Senators Members of the House of Representatives of the United States District attorneys Candidates seeking party primary nominations for the following offices shall file their notice of candidacy with the county board of elections no earlier than 12:00 noon on the second Monday in February and no later than 12:00 noon on the last business day in February preceding the primary: State Senators Members of the State House of Representatives All county offices. (d) Notice of Candidacy for Certain Offices to Indicate Vacancy. – In any primary in which there are two or more vacancies for associate justices for the Supreme Court, two or more vacancies for the Court of Appeals, or two vacancies for United States Senator from 20/384 Page 16 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

North Carolina, each candidate shall, at the time of filing notice of candidacy, file with the State Board of Elections a written statement designating the vacancy to which he the candidate seeks nomination. Votes cast for a candidate shall be effective only for his nomination to the vacancy for which hethe candidate has given notice of candidacy as provided in this subsection. ...." SECTION 21.(b) G.S. 163-107(a) reads as rewritten: "(a) Fee Schedule. – At the time of filing a notice of candidacy, each candidate shall pay to the board of elections with which he the candidate files under the provisions of G.S. 163-106 a filing fee for the office he seeks sought in the amount specified in the following tabulation:

Office Sought Amount of Filing Fee Governor One percent (1%) of the annual salary of the office sought Lieutenant Governor One percent (1%) of the annual salary of the office sought All State executive offices One percent (1%) of the annual salary of the office sought All Justices of the Supreme Court, Judges of the Court of Appeals, and One percent (1%) of the annual salary of District Attorneys of the General the office sought Court of Justice United States Senator One percent (1%) of the annual salary of the office sought Members of the United States House One percent (1%) of the annual salary of of Representatives the office sought State Senator One percent (1%) of the annual salary of the office sought Member of the State House of One percent (1%) of the annual salary of Representatives the office sought All county offices not compensated by fees One percent (1%) of the annual salary of the office sought All county offices compensated partly One percent (1%) of the first annual by salary and partly by fees salary to be received (exclusive of fees) The salary of any office that is the basis for calculating the filing fee is the starting salary for the office, rather than the salary received by the incumbent, if different. If no starting salary can be determined for the office, then the salary used for calculation is the salary of the incumbent, as of January 1 of the election year." SECTION 21.(c) G.S. 163-107.1(b) reads as rewritten: "(b) If the candidate is seeking the office of United States Senator, Governor, Lieutenant Governor, or any State executive officer, Justice of the Supreme Court, or Judge of the Court of Appeals, the petition must be signed by 10,000 registered voters who are members of the political party in whose primary the candidate desires to run, except that in the case of a political party as defined by G.S. 163-96(a)(2) which will be making nominations by primary election, the petition must be signed by five percent (5%) of the registered voters of the State who are affiliated with the same political party in whose primary the candidate desires to run, or in the alternative, the petition shall be signed by no less than 8,000 registered voters regardless of the voter's political party affiliation, whichever requirement is greater. The petition must be filed with the State Board of Elections not later than 12:00 noon on Monday preceding the filing deadline before the primary in which he seeks to run. The names on the petition shall be verified by the board of elections of the county where the signer is registered, and the petition must be presented to the county board of elections at least 15 days before the 21/384 Senate Bill 4 Session Law 2016-125 Page 17 General Assembly Of North Carolina Fourth Extra Session 2016 petition is due to be filed with the State Board of Elections. When a proper petition has been filed, the candidate's name shall be printed on the primary ballot." SECTION 21.(d) G.S. 163-111(c)(1) reads as rewritten: "(1) A candidate who is apparently entitled to demand a second primary, according to the unofficial results, for one of the offices listed below, and desiring to do so, shall file a request for a second primary in writing with the Executive Director of the State Board of Elections no later than 12:00 noon on the ninth day (including Saturdays and Sundays) following the date on which the primary was conducted, and such request shall be subject to the certification of the official results by the State Board of Elections. If the vote certification by the State Board of Elections determines that a candidate who was not originally thought to be eligible to call for a second primary is in fact eligible to call for a second primary, the Executive Director of the State Board of Elections shall immediately notify such candidate and permit him the candidate to exercise any options available to him the candidate within a 48-hour period following the notification: Governor, Lieutenant Governor, All State executive officers, Justices of the Supreme Court, Judges of the Court of Appeals, or District Attorneys of the General Court of Justice, United States Senators, Members of the United States House of Representatives, State Senators in multi-county senatorial districts, and Members of the State House of Representatives in multi-county representative districts." SECTION 21.(e) Subchapter X of Chapter 163 of the General Statutes reads as rewritten: "SUBCHAPTER X. ELECTION OF APPELLATE, SUPERIOR, SUPERIOR AND DISTRICT COURT JUDGES. "Article 25. "Nomination and Election of Appellate, Superior, Superior and District Court Judges. "§ 163-321. Applicability. The nomination and election of justices of the Supreme Court, judges of the Court of Appeals, and superior and district court judges of the General Court of Justice shall be as provided by this Article. … "§ 163-323. Notice of candidacy. … (b) Time for Filing Notice of Candidacy. – Candidates seeking election to the following offices shall file their notice of candidacy with the State Board of Elections no earlier than 12:00 noon on the second Monday in February and no later than 12:00 noon on the last business day in February preceding the election: Justices of the Supreme Court. Judges of the Court of Appeals. Judges of the superior courts. Judges of the district courts. … (f) Notice of Candidacy for Certain Offices to Indicate Vacancy. – In any election in which there are two or more vacancies for the office of justice of the Supreme Court, judge of the Court of Appeals, or district court judge to be filled by nominations, each candidate shall, at 22/384 Page 18 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016 the time of filing notice of candidacy, file with the State Board of Elections a written statement designating the vacancy to which the candidate seeks election. Votes cast for a candidate shall be effective only for election to the vacancy for which the candidate has given notice of candidacy as provided in this subsection. A person seeking election for a specialized district judgeship established under G.S. 7A-147 shall, at the time of filing notice of candidacy, file with the State Board of Elections a written statement designating the specialized judgeship to which the person seeks nomination. … "§ 163-325. Petition in lieu of payment of filing fee. … (b) Requirements of Petition; Deadline for Filing. – If the candidate is seeking the office of justice of the Supreme Court, judge of the Court of Appeals, or superior or district court judge, that individual shall file a written petition with the State Board of Elections no later than 12:00 noon on Monday preceding the filing deadline before the primary. If the office is justice of the Supreme Court or judge of the Court of Appeals, the petition shall be signed by 8,000 registered voters in the State. If the office is superior court or district court judge, the The petition shall be signed by five percent (5%) of the registered voters of the election area in which the office will be voted for. the registered voters will vote for the office. The board of elections shall verify the names on the petition, and if the petition and notice of candidacy are found to be sufficient, the candidate's name shall be printed on the appropriate ballot. Petitions must be presented to the county board of elections for verification at least 15 days before the petition is due to be filed with the State Board of Elections. The State Board of Elections may adopt rules to implement this section and to provide standard petition forms. "§ 163-326. Certification of notices of candidacy. … (b) Notification of Local Boards. – No later than 10 days after the time for filing notices of candidacy under the provisions of G.S. 163-323(b) has expired, the chairman of the State Board of Elections shall certify to the chairman of the county board of elections in each county in the appropriate district the names of candidates for nomination to the offices of justice of the Supreme Court, judge of the Court of Appeals, and superior and district court judge who have filed the required notice and paid the required filing fee or presented the required petition to the State Board of Elections, so that their names may be printed on the official judicial ballot for justice of the Supreme Court, judge of the Court of Appeals, and superior and district court. … "§ 163-329. Elections to fill vacancy in office created after primary filing period opens. (a) General. – If a vacancy is created in the office of justice of the Supreme Court, judge of the Court of Appeals, or judge of superior court after the filing period for the primary opens but more than 60 days before the general election, and under the Constitution of North Carolina an election is to be held for that position, such that the office shall be filled in the general election as provided in G.S. 163-9, the election to fill the office for the remainder of the term shall be conducted without a primary using the method provided in subsection (b1) of this section. If a vacancy is created in the office of justice of the Supreme Court, judge of the Court of Appeals, or judge of superior court before the filing period for the primary opens, and under the Constitution of North Carolina an election is to be held for that position, such that the office shall be filled in the general election as provided in G.S. 163-9, the election to fill the office for the remainder of the term shall be conducted in accordance with G.S. 163-322. (b) Repealed by Session Laws 2006-192, s. 8(a), effective August 3, 2006, and applicable to vacancies occurring on or after that date. (b1) Method for Vacancy Election. – If a vacancy for the office of justice of the Supreme Court, judge of the Court of Appeals, or judge of the superior court occurs more than 60 days before the general election and after the opening of the filing period for the primary, then the 23/384 Senate Bill 4 Session Law 2016-125 Page 19 General Assembly Of North Carolina Fourth Extra Session 2016

State Board of Elections shall designate a special filing period of one week for candidates for the office. If more than two candidates file and qualify for the office in accordance with G.S. 163-323, then the Board shall conduct the election for the office as follows: (1) When the vacancy described in this section occurs more than 63 days before the date of the second primary for members of the General Assembly, a special primary shall be held on the same day as the second primary. The two candidates with the most votes in the special primary shall have their names placed on the ballot for the general election held on the same day as the general election for members of the General Assembly. (2) When the vacancy described in this section occurs less than 64 days before the date of the second primary, a general election for all the candidates shall be held on the same day as the general election for members of the General Assembly and the results shall be determined on a plurality basis as provided by G.S. 163-292. (3) Repealed by Session Laws 2013-381, s. 51.1, effective January 1, 2014. (c) Applicable Provisions. – Except as provided in this section, the provisions of this Article apply to elections conducted under this section. (d) Rules. – The State Board of Elections shall adopt rules for the implementation of this section. The rules are not subject to Article 2A of Chapter 150B of the General Statutes. The rules shall include the following: (1) If after the first-choice candidate is eliminated, a ballot does not indicate one of the uneliminated candidates as an alternative choice, the ballot is exhausted and shall not be counted after the initial round. (2) The fact that the voter does not designate a second or third choice does not invalidate the voter's higher choice or choices. (3) The fact that the voter gives more than one ranking to the same candidate shall not invalidate the vote. The highest ranking given a particular candidate shall count as long as the candidate is not eliminated. (4) In case of a tie between candidates such that two or more candidates have an equal number of first choices and more than two candidates qualify for the second round, instant runoff voting shall be used to determine which two candidates shall advance to the second round. … "§ 163-332. Ballots. … (b) Ballots to Be Furnished by County Board of Elections. – It shall be the duty of the county board of elections to print official ballots for the following offices to be voted for in the primary: Justice of the Supreme Court. Judge of the Court of Appeals. Superior court judge. District court judge. In printing ballots, the county board of elections shall be governed by instructions of the State Board of Elections with regard to width, color, kind of paper, form, and size of type. Three days before the election, the chairman of the county board of elections shall distribute official ballots to the chief judge of each precinct in his county, and the chief judge shall give a receipt for the ballots received. On the day of the primary, it shall be the chief judge's duty to have all the ballots so delivered available for use at the precinct voting place. …." SECTION 21.(f) G.S. 163-323(h) is repealed. SECTION 21.(g) G.S. 163-165.5(a)(4) reads as rewritten: 24/384 Page 20 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

"(4) Party designations in partisan ballot items and in nonpartisan ballot items as required by G.S. 163-323(h).items." SECTION 21.(h) This Part becomes effective January 1, 2018, and applies to primaries and elections held on or after that date.

PART IV. MODIFY APPELLATE REVIEW OF CERTAIN CASES SECTION 22.(a) G.S. 7A-16 reads as rewritten: "§ 7A-16. Creation and organization. The Court of Appeals is created effective January 1, 1967. It shall consist initially of six judges, elected by the qualified voters of the State for terms of eight years. The Chief Justice of the Supreme Court shall designate one of the judges as Chief Judge, to serve in such capacity at the pleasure of the Chief Justice. Before entering upon the duties of his office, a judge of the Court of Appeals shall take the oath of office prescribed for a judge of the General Court of Justice. The Governor on or after July 1, 1967, shall make temporary appointments to the six initial judgeships. The appointees shall serve until January 1, 1969. Their successors shall be elected at the general election for members of the General Assembly in November, 1968, and shall take office on January 1, 1969, to serve for the remainder of the unexpired term which began on January 1, 1967. Upon the appointment of at least five judges, and the designation of a Chief Judge, the court is authorized to convene, organize, and promulgate, subject to the approval of the Supreme Court, such supplementary rules as it deems necessary and appropriate for the discharge of the judicial business lawfully assigned to it. Effective January 1, 1969, the number of judges is increased to nine, and the Governor, on or after March 1, 1969, shall make temporary appointments to the additional judgeships thus created. The appointees shall serve until January 1, 1971. Their successors shall be elected at the general election for members of the General Assembly in November, 1970, and shall take office on January 1, 1971, to serve for the remainder of the unexpired term which began on January 1, 1969. Effective January 1, 1977, the number of judges is increased to 12; and the Governor, on or after July 1, 1977, shall make temporary appointments to the additional judgeships thus created. The appointees shall serve until January 1, 1979. Their successors shall be elected at the general election for members of the General Assembly in November, 1978, and shall take office on January 1, 1979, to serve the remainder of the unexpired term which began on January 1, 1977. On or after December 15, 2000, the Governor shall appoint three additional judges to increase the number of judges to 15. The Court of Appeals shall sit in panels of three judges each.each and may also sit en banc to hear or rehear any cause upon a vote of the majority of the judges of the court. The Chief Judge insofar as practicable shall assign the members to panels in such fashion that each member sits a substantially equal number of times with each other member. Hemember, shall preside over the panel of which he is a member,when a member of a panel, and shall designate the presiding judge of the other panel or panels. Three judges shall constitute a quorum for the transaction of the business of the court, except as may be provided in G.S. 7A-32.Except as may be provided in G.S. 7A-32, three judges shall constitute a quorum for the transaction of the business of the court when sitting in panels of three judges, and a majority of the then sitting judges on the Court of Appeals shall constitute a quorum for the transaction of the business of the court when sitting en banc. In the event the Chief Judge is unable, on account of absence or temporary incapacity, to perform the duties placed upon him as Chief Judge, the Chief Justice shall appoint an acting

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Chief Judge from the other judges of the Court, to temporarily discharge the duties of Chief Judge." SECTION 22.(b) G.S. 7A-27 reads as rewritten: "§ 7A-27. Appeals of right from the courts of the trial divisions. (a) Appeal lies of right directly to the Supreme Court in any of the following cases: (1) All cases in which the defendant is convicted of murder in the first degree and the judgment of the superior court includes a sentence of death. (2) From any final judgment in a case designated as a mandatory complex business case pursuant to G.S. 7A-45.4 or designated as a discretionary complex business case pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts. (3) From any interlocutory order of a Business Court Judge that does any of the following: a. Affects a substantial right. b. In effect determines the action and prevents a judgment from which an appeal might be taken. c. Discontinues the action. d. Grants or refuses a new trial. (a1) Appeal lies of right directly to the Supreme Court from any order or judgment of a court, either final or interlocutory, that holds that an act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law. Nothing in this subsection shall be deemed to apply to appeals from orders of the trial courts pertaining to criminal proceedings, to proceedings under Chapter 15A of the General Statutes, to proceedings making a collateral attack on any judgment entered in a criminal proceeding, or to appeals from orders of the trial courts pertaining to civil proceedings filed by a taxpayer pursuant to G.S. 105-241.17. (b) Except as provided in subsection (a) or (a1) of this section, appeal lies of right directly to the Court of Appeals in any of the following cases: (1) From any final judgment of a superior court, other than one based on a plea of guilty or nolo contendere, including any final judgment entered upon review of a decision of an administrative agency, except for a final judgment entered upon review of a court martial under G.S. 127A-62. (2) From any final judgment of a district court in a civil action. (3) From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding that does any of the following: a. Affects a substantial right. b. In effect determines the action and prevents a judgment from which an appeal might be taken. c. Discontinues the action. d. Grants or refuses a new trial. e. Determines a claim prosecuted under G.S. 50-19.1. f. Grants temporary injunctive relief restraining the State or a political subdivision of the State from enforcing the operation or execution of an act of the General Assembly as applied against a party in a civil action.Assembly. This sub-subdivision only applies where the State or a political subdivision of the State is a party in the civil action. This sub-subdivision does not apply to facial challenges to an act's validity heard by a three-judge panel pursuant to G.S. 1-267.1. (4) From any other order or judgment of the superior court from which an appeal is authorized by statute. (c) through (e) Repealed by Session Laws 2013-411, s. 1, effective August 23, 2013." 26/384 Page 22 Session Law 2016-125 Senate Bill 4 General Assembly Of North Carolina Fourth Extra Session 2016

SECTION 22.(c) G.S. 7A-30 reads as rewritten: "§ 7A-30. Appeals of right from certain decisions of the Court of Appeals. Except as provided in G.S. 7A-28, an appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case: (1) Which directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) In which there is a dissent.dissent when the Court of Appeals is sitting in a panel of three judges. An appeal of right pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing." SECTION 22.(d) G.S. 7A-31(a) reads as rewritten: "(a) In any cause in which appeal is taken to the Court of Appeals,Appeals, including any cause heard while the Court of Appeals was sitting en banc, except a cause appealed from the North Carolina Industrial Commission, the North Carolina State Bar pursuant to G.S. 84-28, the Property Tax Commission pursuant to G.S. 105-345, the Board of State Contract Appeals pursuant to G.S. 143-135.9, the Commissioner of Insurance pursuant to G.S. 58-2-80, G.S. 58-2-80 or G.S. 58-65-131(c), a court-martial pursuant to G.S. 127A-62, a motion for appropriate relief, or valuation of exempt property pursuant to G.S. 7A-28, the Supreme Court may, in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals. A cause appealed to the Court of Appeals from any of the administrative bodies listed in the preceding sentence may be certified in similar fashion, but only after determination of the cause in the Court of Appeals. The effect of such certification is to transfer the cause from the Court of Appeals to the Supreme Court for review by the Supreme Court. If the cause is certified for transfer to the Supreme Court before its determination in the Court of Appeals, review is not had in the Court of Appeals but the cause is forthwith transferred for review in the first instance by the Supreme Court. If the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals. Except in courts-martial and motions within the purview of G.S. 7A-28, the State may move for certification for review of any criminal cause, but only after determination of the cause by the Court of Appeals." SECTION 22.(e) G.S. 58-65-131(c) reads as rewritten: "(c) Compliance Required in Certain Events. – A corporation governed by this Article shall comply with the provisions of this section, G.S. 58-65-132, and G.S. 58-65-133 before it may do any of the following: … In determining whether the corporation must comply with the provisions of this section, G.S. 58-65-132, and G.S. 58-65-133, the Commissioner may review and consolidate actions of the corporation, its subsidiaries, and other legal entities in which the corporation directly or indirectly owns an interest, and treat the consolidated actions as requiring a conversion. An appeal of the Commissioner's order that consolidated actions require a conversion shall lie directly to the North Carolina Court of Appeals, provided that any party may petition the North Carolina Supreme Court, pursuant to G.S. 7A-31(b), to certify the case for discretionary review by the Supreme Court prior to determination by the Court of Appeals. Appeals under this subsection must be filed within 30 days of the Commissioner's order and shall be considered in the most expeditious manner practical. The corporation must file a plan of conversion within 12 months of the later of the issuance of the Commissioner's order or a final decision on appeal." 27/384 Senate Bill 4 Session Law 2016-125 Page 23 General Assembly Of North Carolina Fourth Extra Session 2016

SECTION 22.(f) G.S. 120-2.5 is repealed. SECTION 23.(a) G.S. 1A-1, Rule 42(b)(4) of the Rules of Civil Procedure, reads as rewritten: "Rule 42. Consolidation; separate trials. ... (b) Separate trials. – ... (4) Pursuant to G.S. 1-267.1, any facial challenge to the validity of an act of the General Assembly, other than a challenge to plans apportioning or redistricting State legislative or congressional districts, shall be heard by a three-judge panel in the Superior Court of Wake County if a claimant raises such a challenge in the claimant's complaint or amended complaint in any court in this State, or if such a challenge is raised by the defendant in the defendant's answer, responsive pleading, or within 30 days of filing the defendant's answer or responsive pleading. In that event, the court shall, on its own motion, transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel if, after all other matters in the action have been resolved, a determination as to the facial validity of an act of the General Assembly must be made in order to completely resolve any matters in the case. The court in which the action originated shall maintain jurisdiction over all matters other than the challenge to the act's facial validity and validity. For a motion filed under Rule 11 or Rule 12(b)(1) through (7), the original court shall rule on the motion, however, it may decline to rule on a motion that is based solely upon Rule 12(b)(6). If the original court declines to rule on a Rule 12(b)(6) motion, the motion shall be decided by the three-judge panel. The original court shall stay all matters that are contingent upon the outcome of the challenge to the act's facial validity pending a ruling on that challenge and until all appeal rights are exhausted. Once the three-judge panel has ruled and all appeal rights have been exhausted, the matter shall be transferred or remanded to the three-judge panel or the trial court in which the action originated for resolution of any outstanding matters, as appropriate." SECTION 23.(b) This section becomes effective February 1, 2017, and applies to motions filed on or after that date.

PART V. MODIFY THE TERM FOR INDUSTRIAL COMMISSIONERS SECTION 24.(a) G.S. 97-77 reads as rewritten: "§ 97-77. North Carolina Industrial Commission created; members appointed by Governor; terms of office; chairman. (a) There is hereby created a commission to be known as the North Carolina Industrial Commission, consisting of six commissioners who shall devote their entire time to the duties of the Commission. The Governor shall appoint the members of the Commission for terms of six years. Three commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employers. Three commissioners shall be persons who, on account of their previous vocations, employment or affiliations, can be classed as representatives of employees. No person may serve more than two terms on the Commission, including any term served prior to the effective date of this section. In calculating the number of terms served, a partial term that is less than three years in length shall not be included.

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(a1) Appointments of commissioners are subject to confirmation by the General Assembly by joint resolution. The names of commissioners to be appointed by the Governor shall be submitted by the Governor to the General Assembly for confirmation by the General Assembly on or before March 1 of the year of expiration of the term. If the Governor fails to timely submit nominations, the General Assembly shall appoint to fill the succeeding term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section. In case of death, incapacity, resignation, or any other vacancy in the office of any commissioner prior to the expiration of the term of office, a nomination to fill the vacancy for the remainder of the unexpired term shall be submitted by the Governor within four weeks after the vacancy arises to the General Assembly for confirmation by the General Assembly. Appointments to fill a vacancy shall have a term of six years plus the remainder of the unexpired term. If the Governor fails to timely nominate a person to fill the vacancy, the General Assembly shall appoint a person to fill the remainder of the unexpired term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section. If a vacancy arises or exists pursuant to this subsection when the General Assembly is not in session, and the appointment is deemed urgent by the Governor, the commissioner may be appointed and serve on an interim basis pending confirmation by the General Assembly. For the purpose of this subsection, the General Assembly is not in session only (i) prior to convening of the Regular Session, (ii) during any adjournment of the Regular Session for more than 10 days, and (iii) after sine die adjournment of the Regular Session. No person while in office as a commissioner may be nominated or appointed on an interim basis to fill the remainder of an unexpired term, or to a full term that commences prior to the expiration of the term that the commissioner is serving. (b) One member, to be designated by the Governor, shall act as chairman. On December 30, 2016, and every four years thereafter, one member shall be designated by the Governor to act as chairman for a term of four years. In case of death, incapacity, resignation, or any other vacancy of the chairman, the Governor shall designate a new chairman from the remaining commissioners for the remainder of the four-year term. No member who has served less than one year on the Commission may be designated to act as chairman. The chairman shall be the chief judicial officer and the chief executive officer of the Industrial Commission; such authority shall be exercised pursuant to the provisions of Chapter 126 of the General Statutes and the rules and policies of the State Human Resources Commission. Notwithstanding the provisions of this Chapter, the chairman shall have such authority as is necessary to direct and oversee the Commission. The chairman may delegate any duties and responsibilities as may be necessary to ensure the proper management of the Industrial Commission. Notwithstanding the provisions of this Chapter, Chapter 143A, and Chapter 143B of the General Statutes, the chairman may hire or fire personnel and transfer personnel within the Industrial Commission. The Governor may designate one vice-chairman from the remaining commissioners. On December 30, 2016, and every four years thereafter, one member shall be designated by the Governor to act as vice-chairman for a term of four years. In case of death, incapacity, resignation, or any other vacancy of the vice-chairman, the Governor shall designate a new vice-chairman from the remaining commissioners for the remainder of the four-year term. The vice-chairman shall assume the powers of the chairman upon request of the chairman or when the chairman is absent for 24 hours or more. The authority delegated to the vice-chairman shall be relinquished immediately upon the return of the chairman or at the request of the chairman." SECTION 24.(b) G.S. 97-77(a1), as amended by subsection (a) of this section, reads as rewritten: 29/384 Senate Bill 4 Session Law 2016-125 Page 25 General Assembly Of North Carolina Fourth Extra Session 2016

"(a1) Appointments of commissioners are subject to confirmation by the General Assembly by joint resolution. The names of commissioners to be appointed by the Governor shall be submitted by the Governor to the General Assembly for confirmation by the General Assembly on or before March 1 of the year of expiration of the term. If the Governor fails to timely submit nominations, the General Assembly shall appoint to fill the succeeding term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section. In case of death, incapacity, resignation, or any other vacancy in the office of any commissioner prior to the expiration of the term of office, a nomination to fill the vacancy for the remainder of the unexpired term shall be submitted by the Governor within four weeks after the vacancy arises to the General Assembly for confirmation by the General Assembly. Appointments to fill a vacancy shall have a term of six years plus the remainder of the unexpired term. If the Governor fails to timely nominate a person to fill the vacancy, the General Assembly shall appoint a person to fill the remainder of the unexpired term upon the joint recommendation of the President Pro Tempore of the Senate and the Speaker of the House of Representatives in accordance with G.S. 120-121 not inconsistent with this section. If a vacancy arises or exists pursuant to this subsection when the General Assembly is not in session, and the appointment is deemed urgent by the Governor, the commissioner may be appointed and serve on an interim basis pending confirmation by the General Assembly. For the purpose of this subsection, the General Assembly is not in session only (i) prior to convening of the Regular Session, (ii) during any adjournment of the Regular Session for more than 10 days, and (iii) after sine die adjournment of the Regular Session. No person while in office as a commissioner may be nominated or appointed on an interim basis to fill the remainder of an unexpired term, or to a full term that commences prior to the expiration of the term that the commissioner is serving." SECTION 24.(c) Subsection (a) of this section is effective when it becomes law and applies to the first appointment made to fill a vacancy existing as of that date. Subsection (b) of this section becomes effective on the earlier of December 31, 2016, or upon the filling of a vacancy pursuant to subsection (a) of this section.

PART VI. EFFECTIVE DATE SECTION 25. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end, the provisions of this act are severable.

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SECTION 26. Except as otherwise provided, this act is effective when it becomes law. In the General Assembly read three times and ratified this the 16th day of December, 2016.

s/ Daniel J. Forest President of the Senate

s/ Tim Moore Speaker of the House of Representatives

s/ Pat McCrory Governor

Approved 1:19 p.m. this 16th day of December, 2016

31/384 Senate Bill 4 Session Law 2016-125 Page 27 Separator Page

Plaintiff's Brief

32/384 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 16 CVS 015636

ROYA.COOPER,III,inhisofficial capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA, Plaintiff, v.

PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; and TIMOTHYK.MOORE,inhisofficial capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES, Defendants.

PLAINTIFF’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Jim W. Phillips, Jr. Eric M. David Daniel F. E. Smith BROOKS,PIERCE,MCLENDON, HUMPHREY &LEONARD, L.L.P. Suite 2000 Renaissance Plaza 230 North Elm Street Greensboro, NC 27401 Attorneys for Governor Roy A. Cooper, III

33/384 TABLE OF CONTENTS

INTRODUCTION ...... 1

BACKGROUND AND PROCEDURAL HISTORY ...... 3

ARGUMENT ...... 4

I. Separation of powers is a foundational principle of North Carolina’s government and drives the Governor’s claims here ...... 5

A. Found within the Declaration of Rights, the guarantee of separation of powers preceded the first state constitution ...... 5

B. Each branch’s exercise of its constitutional powers must be measured against the separation of powers and express constitutional checks and balances ...... 6

C. The North Carolina Constitution assigns duties to the Governor and the powers that he needs to fulfill those duties, then protects those powers from encroachment through the separation of powers clause ...... 8

D. McCrory v. Berger provides the analytical framework for the Governor’s claims here...... 10

II. The structure of the New Bipartisan State Board of Elections and Ethics Enforcement violates separation of powers by preventing the Governor from exercising control to ensure the election laws are faithfully executed ...... 12

A. What the Board of Elections Amendments would do ...... 12

B. The State Board of Elections and the New State Board are core executive agencies, tasked with making policy and executing the State’s election laws ...... 15

C. Calling the New State Board “independent” does not change the constitutional analysis ...... 18

D. The Board of Elections Amendments prevent the Governor from faithfully executing the election laws through the New State Board because the legislature exercises too much control...... 20

III. The Advice and Consent Amendment violates separation of powers by interfering with the Governor’s appointment of the heads of principal departments...... 23

A. What the Advice and Consent Amendment would do ...... 23

i 34/384 B. Requiring advice and consent for the Governor’s most significant executive officers is a substantial encroachment into executive power ...... 23

C. Senatorial advice and consent is an exception to the separation of powers designed as a check on executive power...... 26

D. The North Carolina Senate does not have inherent power to exercise advice and consent as to the Governor’s appointed department heads...... 27

1. An inherent legislative power of advice and consent cannot be reconciled with separation of powers ...... 28

2. Defendants’ inherent power argument was rejected by McCrory v. Berger ...... 32

E. The Advice and Consent Amendment is therefore unconstitutional ...... 32

IV. The Exempt Positions Amendments violates separation of powers by limiting the Governor’s ability to remove political appointees of the previous administration ...... 33

A. Legal background on exempt positions ...... 33

B. Factual background on exempt positions...... 35

C. The Exempt Positions Amendments seek to radically change the law with respect to exempt positions...... 37

D. Defendants attempt to embed more than 900 of Governor McCrory’s exempt employees within the Cooper administration...... 38

E. The Exempt Positions Amendments violate the separation of powers...... 39

V. The severability provisions of the challenged acts do not save them from a finding of unconstitutionality...... 42

CONCLUSION ...... 43

ii

35/384 INTRODUCTION

The crux of this dispute is crystallized in the very first paragraph of the parties’ respective pleadings. The Governor opened his Amended Complaint with the following fundamental statement:

Separation of powers is a bedrock principle the founders used to structure our state government.

(Am. Compl. ¶ 1.)

In response, Defendants admit “that the North Carolina Constitution states that the

Legislative, Executive, and Judicial branches of government shall be forever distinct.” (Answer

¶ 1.) In that same paragraph, however, Defendants go on to “den[y] that the branches of government are equal under our state Constitution.” (Id. (emphasis added))

Plaintiff Governor Roy A. Cooper, III filed this action to correct unconstitutional legislative overreach by the General Assembly, which is apparently based on a belief that Article

I, Section 6 of the Constitution does not limit the General Assembly’s ability to exercise powers reserved to another branch of our State’s government. In hastily enacting two wide-ranging laws in a special session called after Governor Cooper won the election, Defendants have attempted to invade the core powers of the Governor and arrogate for themselves authority expressly reserved to the Governor by the North Carolina Constitution.

In support of their inflated view of their own powers, Defendants advance a novel view of inherent legislative powers. As conceived by Defendants, the inherent powers theory has no logical limitation. More concretely, the inherent powers theory requires this Court to place

“separationofpowersconcernsaside....”(Defendants’BriefinOpposition to Preliminary

Injunction p. 13). But separation of powers restricts the power of the legislature, whether that power is expressly named in the Constitution, inherent, or otherwise. It is so fundamental to the

1 36/384 government of North Carolina that it was enacted in the Declaration of Rights, the portion of the state constitution that predates the constitution itself and contains key provisions to protect our popular, democratic government and the people who empower it. “The very purpose of the

Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.” Corum v. Univ. of

N.C., 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992).

The legislative actions challenged in this case demonstrate Defendants’ mistaken contention that the three branches of state government are not, in fact, equal because the legislature is entitled, at its whim, to invade the core powers of the judicial and executive branches. The

Governor challenges as unconstitutional:

x The destruction of the State Board of Elections and replacement with a new board merging the functions of the State Ethics Commission and State Board of Elections— a new board that is structured to prevent the Governor from ensuring faithful execution of the election laws.

x The legislative grant of power to itself to require advice and consent for the Governor’s cabinet secretaries, the individuals who head the principal departments that are at the heart of the executive branch and must be beyond legislative control.

x The conversion—by legislative fiat—of hundreds of political appointees from the McCrory administration into career employees entitled to protections from the state personnel laws reserved for career civil servants.

In McCrory, 368 N.C. 633, 781 S.E.2d 248 (2016), the North Carolina Supreme Court invalidated a previous unconstitutional overreach by Defendants, holding:

Under the rule that defendants advance, the General Assembly could appoint every statutory officer to every administrative body, even those with final executive authority, and could prohibit the Governor from having any power to remove those officers. This rule would nullify the separation of powers clause, at least as it pertained to the General Assembly’s ability to control the executive branch.

Id. at 647, 781 S.E.2d at 257.

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37/384 The enactments at issue in this case, demonstrate, however, that Defendants have not heeded the Supreme Court’s words. As a result, it falls to this Court to re-affirm the lesson of

McCrory, grant the Governor’s Motion for Summary Judgment, and invalidate the challenged statutes.

BACKGROUND AND PROCEDURAL HISTORY

On November 8, 2016, the voters of the State of North Carolina chose Plaintiff Roy A.

Cooper, III to be their governor for a four-year term that commenced on January 1, 2017. (Am.

Compl. ¶ 2.)

On December 14, 2016, at a special session convened by Defendants, the leadership of the

North Carolina General Assembly moved to curtail, in significant ways, the executive powers that passed to Governor Cooper on January 1. By December 16, the General Assembly had introduced and passed two bills—Senate Bill 4, enacted as Session Law 2016-125, and House Bill 17, enacted as Session Law 2016-126 (collectively, the “Session Laws”)—that, among other things, radically change the structure and composition of the executive agency responsible for administrating our

State’s election laws, fundamentally alter the manner in which the leaders of the principal administrative departments within the executive branch of State government are appointed, and substantially limit the Governor’s ability to staff key policymaking positions within the executive branch.1 (Am. Compl. ¶ 4.)

Governor Cooper filed his initial complaint on December 30, 2016, and a temporary restraining order as to Part I of Senate Bill 4 was granted that day. Following a hearing on January

5, 2017, this Court entered a preliminary injunction as to Part I of Senate Bill 4 on January 6.

1 Specific facts relating to each Session Law and each claim are set forth in more detail below. 3

38/384 On January 10, 2017, Governor Cooper filed an amended complaint, which Defendants answered on January 31. On January 23, Defendants noted their appeal from the preliminary injunction order and filed a motion to stay or reconsider that order. The Court denied Defendants’ motion to reconsider on February 2.

On February 6, 2017, Governor Cooper filed a Motion for Temporary Restraining Order and Preliminary Injunction with respect to Part III of Session Law 2016-126. The TRO was granted on February 7, and the motion for preliminary injunction was deniedonFebruary13.

On February 13, Governor Cooper voluntarily dismissed without prejudice Count 2 of his

Amended Complaint (relating to Part V of Session Law 2016-125). On February 14, the parties filed cross-motions for summary judgment pursuant to N.C. Rule of Civil Procedure 56.

In his Motion, the Governor seeks a final order declaring unconstitutional and invalidating the following portions of the Session Laws:

x Part I of Session Law 2016-125, which dramatically restructures the State’s elections and ethics laws;

x Part III of Session Law 2016-126, which is an unprecedented attempt by the General Assembly to limit the Governor’s authority to appoint the cabinet secretaries he selects who will faithfully carry out his chosen policies and execute the laws; and

x The portions of Sections 7 and 8 of Part I of Session Law 2016-126 codified at N.C. Gen. Stat. § 126-5(d)(2c), which seek to fundamentally change the state personnel laws by purporting to permit Governor McCrory to convert into “career State employees” hundreds of political appointees holding positions he and the General Assembly had previously designated as exempt.

ARGUMENT

For the reasons detailed below, Governor Cooper is entitled to a declaratory judgment in his favor on all remaining claims alleged in the Amended Complaint on the grounds that there is no genuine issue of material fact and he is entitled to judgment as a matter oflaw.

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39/384 I. Separation of powers is a foundational principle of North Carolina’s government and drives the Governor’s claims here.

A. Found within the Declaration of Rights, the guarantee of separation of powers preceded the first state constitution.

The separation of powers clause provides the foundation to the Governor’s arguments in this case. That clause is found within the Declaration of Rights, the very first article of the North

Carolina Constitution, which details “the ideological premises that underlie the structure of government.” John V. Orth & Paul Martin Newby, THE NORTH CAROLINA STATE CONSTITUTION

46 (2d ed. 2013) (hereinafter “Orth & Newby”).

“The Declaration of Rights was passed by the Constitutional Convention on 17 December

1776, the day before the [first North Carolina] Constitution itself was adopted, manifesting the primacy of the Declaration in the minds of the framers.” Corum v. Univ. of N.C., 330 N.C. 761,

782, 413 S.E.2d 276, 289-90 (1992). “The fundamental purpose for its adoption was to provide citizens with protection from the State’s encroachment upon these rights.” Id. at 782, 413 S.E.2d at 290. “Through the Declaration of Rights, the people of North Carolina secured these rights against state officials and shifting political majorities.” Id. at 787, 413 S.E.2d at 292 (emphasis added).

“Encroachment by the State is, of course, accomplished by the acts of individuals who are clothed with the authority of the State. The very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the

Constitution with the powers of the State.” Id. at 782-83, 413 S.E.2d at 290. To that end, beginning with the 1805 decision in Trustees of the University of North Carolina v. Foy, 5 N.C. 57 (1805), the North Carolina Supreme Court “recognized the supremacy of rights protected in Article I,” the

Declaration of Rights, and “indicated that [the Supreme Court] would only apply . . . such acts of

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40/384 the legislature that are consistent with the Constitution.” Corum, 330 N.C. at 783, 413 S.E.2d at

290 (emphasis added).

B. Each branch’s exercise of its constitutional powers must be measured against the separation of powers and express constitutional checks and balances.

“The Constitution is the fundamental law of the State, and contains the principles on which the government is founded. It regulates the division of the sovereign powers, between the coordinate departments, and directs the manner in which they are to be exercised.” Ex parte

Schenck, 65 N.C. 353, 366 (1871).

The Declaration of Rights guarantees separation of powers by emphatically declaring, “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” N.C. CONST.art.I,§6;see also Orth&Newby,p.50.

(“[S]eparation of powers is one of the fundamental principles on which state government is constructed.”).

As the landmark McCrory v. Berger decision reaffirms,

Each branch of government has a distinctive purpose. The General Assembly, which comprises the legislative branch, enacts laws that protect or promote the health, morals, order, safety, and general welfare of society. The executive branch, which the Governor leads, faithfully executes, or gives effect to, these laws. The judicial branch interprets the laws and, through its power of judicial review, determines whether they comply with the constitution.

368 N.C. at 635, 781 S.E.2d at 250 (citations omitted); see also, e.g., News & Observer Publ’g

Co.v.Easley, 182 N.C. App. 14, 19-20, 641 S.E.2d 698, 702 (2007) (“This principle, of course, distributes the power to make law to the legislature, the power to execute law to the executive, and the power to interpret law to the judiciary.”).

Separation of powers protects one branch from intrusions upon both (1) “specific and exclusive grant[s] of power” to that branch by the constitution; and (2) “inherent power” which

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41/384 belong to that branch “by virtue of its being one of three separate, coordinate branches of the government.” Ivarsson v. Office of Indigent Def. Servs., 156 N.C. App. 628, 632, 577 S.E.2d 650,

653 (2003) (citations and internal quotation marks omitted). “Each department has appropriate functions; and each is in some degree a check upon the others, so as to prevent hasty and improvident action.” Ex parte Schenck, 65 N.C. at 366-67. If one department “encroaches upon the inherent rights of the others, this wise equilibrium of power will be disturbed and the several departments cannot operate together in harmony, and thus accomplish the objects of good government. Id. at 367. “To preserve harmony in the government, each department, while it is jealous of its own rights, ought to keep as far as possible in its own appropriate sphere.” Id.

Put plainly, separation of powers establishes a constitutional limitation on the power and authority of each branch of our government. Each must stay within its sphere of authority and when it moves beyond those limitations—by legislation, executive order, or judicial decision—

Article I, section 6 raises a bar and specifically prohibits such action.

The only exceptions to this limitation are the checks and balances specifically included in the Constitution itself. In those specifically articulated instances, the people have authorized one branch to engage in activity which is otherwise reserved to a coordinate branch of government.

See McCrory, 368 N.C. at 635-36, 781 S.E.2d at 250 (noting that the state constitution

“incorporates a system of checks and balances that gives each branch some control over the others”). For example, McCrory provided the example of legislative power to break tie votes in the Senate being assigned to Lieutenant Governor, an executive officer; conversely, the legislature has power to assign duties to Lieutenant Governor, a power that the legislature shares with the

Governor. See id.

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42/384 The constitution does not violate itself. So the separation of powers is not violated if the constitution assigns powers of one branch to another branch or a portion thereof. Absent plain language authorizing that intrusion, the separation of powers clause provides a bright line which no branch may cross.

Other cases make similar observations about the power of the people to enact checks and balances. See, e.g., State ex rel. Wallace v. Bone, 304 N.C. 591, 599, 286 S.E.2d 79, 83 (1982)

(“Numerous efforts to change our constitution to give the governor that power [to veto] have failed.

The clear implication is that our people do not want the chief executive to have any direct control over our legislative branch.”).

Applying the foregoing principles to this case, an exercise of executive power by the legislature—or an interference with executive power by the legislature—violates separation of powers unless there is an express constitutional provision authorizing that legislative exercise or interference as a check on gubernatorial power.

C. The North Carolina Constitution assigns duties to the Governor and the powers that he needs to fulfill those duties, then protects those powers from encroachment through the separation of powers clause.

When he was sworn in on January 1, 2017, Governor Cooper was vested with the executive power of the State of North Carolina. N.C. CONST. art. III, § 1. This power derives from his position as the “people’s elected executive.” See Bacon v. Lee, 353 N.C. 696, 711, 549 S.E.2d

840, 851 (2001).

The Governor now has the constitutional duty to “take care that the laws be faithfully executed.” N.C. CONST. art. III, § 5(4). He also must fulfill his “constitutional duties to exercise executive power and to supervise the official conduct of all executive officers.” Tice v. Dep’t of

Transp., 67 N.C. App. 48, 55, 312 S.E.2d 241, 245 (1984).

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43/384 Respected scholars of the North Carolina Constitution connect the assignment of executive power to the Governor with his duty to ensure that the laws are faithfully executed. Orth & Newby, p. 113 (“[E]xecutive power connotes the power to execute or enforce the laws: The governor is duty-bound to ‘take care that the laws be faithfully executed’ (Article III, Section 5, Subsection

4).”). As a matter of logic, the fulfillment of the Governor’s duties requires that he have the necessary powers. If the General Assembly interferes with the Governor’s powers, it prevents him from fulfilling his constitutional duties. To avoid this very situation, the separation of powers clause prohibits any such interference.

At the core of the Governor’s ability to ensure that the laws are faithfully executed is his ability to appoint subordinates who are loyal to him, who share his policy views and priorities, and who will act consistent with and not contrary to his vision and direction. The United States

Supreme Court has recognized that the chief executive “alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.” Myers v. United States, 272 U.S.

52, 117 (1926). “As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws.” Id. The reasoning of Myers is consistent with our Supreme Court’s recent decision in

McCrory v. Berger, which reaffirms the critical importance of the Governor’s ability to select those who act for him. See 368 N.C. at 646-47, 781 S.E.2d at 256-57.

Accordingly, it is fundamental to the constitutional governance of North Carolina that the

General Assembly may not exercise powers expressly or inherently reserved to the Governor by the constitutional delegation of executive power. See McCrory, 368 N.C. at 645, 781 S.E.2d at

256; see also, e.g., Ivarsson, 156 N.C. App. at 631, 577 S.E.2d at 652 (“A violation of the

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44/384 separation of powers required by the North Carolina Constitution occurs when one branch of state government exercises powers that are reserved for another branch of state government.”). Put differently, the General Assembly may not interfere with the Governor’s exercise of executive power or otherwise prevent him from ensuring the faithful execution of the laws.

D. McCrory v. Berger provides the analytical framework for the Governor’s claims here.

The Supreme Court of North Carolina recently addressed separation of powers and the appointments clause in McCrory v. Berger, in which Governor McCrory and former Governors

Hunt and Martin challenged, as a violation of the separation of powers, the General Assembly’s attempt to retain control over the Oil and Gas Commission, the Mining Commission, and the Coal

Ash Management Commission. 368 N.C. 633, 781 S.E.2d 248 (2016). While McCrory will be relied upon and discussed further in other sections of this brief, its basic facts and core holdings apply equally to all of the Governor’s claims and bear emphasis here.

In McCrory, legislation empowered the General Assembly to appoint a majority of members of those three commissions which the North Carolina Supreme Court found were

“primarilyadministrativeorexecutiveincharacter....” Id. at 645, 781 S.E.2d at 256. Governor

McCrory challenged the constitutionality of that legislation, contending that legislative appointments to executive commissions: (1) violated the appointments clause of Article III, § 5(8) of the North Carolina Constitution by vesting the General Assembly with the power to appoint any members of those commission; (2) violated the separation of powers clause of Article I, Section 6 of the North Carolina Constitution by preventing the Governor from performing his constitutional duty to ensure that the laws are faithfully executed, as required by Article III, Sections 1 and 5(4) of the North Carolina Constitution. Id. at 638, 781 S.E.2d at 251.

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45/384 The Court first conducted a review of the plain language, the history, and precedent interpreting the appointments clause. Through that analysis, the Court concluded that the appointments “clause gives the Governor the exclusive authority to appoint constitutional officers whose appointments are not otherwise provided for by the constitution. The appointments clause does not prohibit the General Assembly from appointing statutory officers to administrative commissions.” Id. at 639-40, 781 S.E.2d at 252 (2016) (emphasis in original).

Next, the Court turned to the separation of powers clause and explained that the “clause requires that, as the three branches of government carry out their duties, one branch will not prevent another branch from performing its core functions,” id. at 636, 781 S.E.2d at 250 (emphasis added), and noted that violations of separation of powers come in two forms:

The clearest violation of the separation of powers clause occurs when one branch exercises power that the constitution vests exclusively in another branch. Other violations are more nuanced, such as when the actions of one branch prevent another branch from performing its constitutional duties. When we assess a separation of powers challenge that implicates the Governor’s constitutional authority, we must determine whether the actions of a coordinate branch “unreasonably disrupt a core power of the executive.”

Id. at 645, 781 S.E.2d at 256 (citations omitted). The Court found the “core power of the executive” in that case to be the Governor’s duty in Article III, Section 5 to “take care that the laws be faithfully executed.” Id. The Court further held that to fulfill that duty, “the Governor must have enough control over [executive branch appointees] to perform his constitutional duty.” Id. at

646, 781 S.E.2d at 256.

The Court ultimately ruled that the principle of separation of powers “plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.” Id.

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46/384 The McCrory decision—and its thorough summary of separation of powers jurisprudence in the State of North Carolina—provides the analytical framework for consideration of the

Governor’s claims. The remainder of this Brief argues why each of the challenged provisions should be declared unconstitutional, addressing each challenged provision in turn and showing why that provision violates the North Carolina Constitution.

II. The structure of the New Bipartisan State Board of Elections and Ethics Enforcement violates separation of powers by preventing the Governor from exercising control to ensure the election laws are faithfully executed.

But for this Court’s preliminary injunction, Part I of Senate Bill 4 (the “Board of Elections

Amendments”) would have abolished the State Board of Elections on January 1, 2017, and replaced it with the Bipartisan State Board of Elections and Ethics Enforcement (“New State

Board”), which would have been immediately vested with: (a) enforcement of election laws currently administered by the State Board of Elections; and (b) the duties of the State Ethics

Commission. See 2016 N.C. SESS.LAWS 125, Part I, §§ 1-19.

This Court has already determined that the Governor is likely to succeed on the merits of his claim that the Board of Elections Amendments violate the separation of powers principles articulated in McCrory v. Berger and are therefore unconstitutional. The full factual record before the Court confirms that conclusion.

A. What the Board of Elections Amendments would do.

In the absence of this Court’s preliminary injunction order, under the Board of Elections

Amendments, members of the current State Board of Elections were to be terminated and, by legislative appointment, the New State Board would have been composed of the eight members of the State Ethics Commission serving on December 31, 2016. 2016 N.C. SESS.LAWS 125, Part I,

§ 13. Effective January 1, 2017, the State Board of Elections’ “authority, powers, duties and

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47/384 functions, records, personnel, property, and unexpended balances of appropriations, allocations,

or other funds, including the functions of budgeting and purchasing, of the State Board of

Elections” as well as “appropriations and resources, including any officespace”weretobe

transferred to the New State Board. Id. §§ 12, 16.

The Board of Elections Amendments not only rearrange the agencies charged with

enforcement of the State’s elections laws, they also drastically alter the governance structure and

operations of the agency charged with executing the election laws. Under the current statutory

scheme: (a) the Governor appoints all five members of the State Board of Elections, N.C. Gen.

Stat. § 163-19; (b) no more than three members may be from one political party, id.;(c)the

Governor’s appointments are chosen from a lists of five nominees “submitted to him by the State party chairman of each of the two political parties having the highest number of registered affiliates. . . .” id.; (d) the Governor has the power to remove all board members and is responsible for filling any vacancies on the board, see id. § 163-20(d); and (e) a quorum of the board is a majority of members and, in all but a few circumstances, the Board acts upon a simple majority vote. Id.

Effective immediately, the Board of Elections Amendments enact a novel structure and procedures for the operations of the New State Board, which will hinder the board from taking action to administer and execute the election laws. The Board of Elections Amendments, if allowed to take effect, would immediately:

x Legislatively appoint all current members of the State Ethics Commission to serve as the New State Board between 1 January 2017 and 1 July 2017. See 2016 N.C. SESS. LAWS 125, Part I, § 13.

x Legislatively appoint the chair of the New State Board. See id. § 14.

x Prevent the Governor from exercising any power of removal for new Board Members between 1 January 2017 and 1 July 2017. See id. § 2.(c); § 13.

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48/384 x Prevent the Governor from filling any vacant seats on the New State Board for the first six months of its operation. Id. § 13.

x Establish that a quorum is six of eight members and a “majority” vote to take any action requires six of eight members (not five of eight). Id. § 2.(c). As a result, a vote of six of eight members is required to: (1) call a meeting; (2) petition the Superior Court of Wake County to issue subpoenas; (3) approve the form of the ballot for upcoming elections; or (4) take any action. Id. §2.(c);id. § 5.(j). Even the investigatory powers of the New State Board can only be invoked by the super-majority rather than simply by the chair himself or any two of its five members. Id. § 2.(c).

x Require that vacancies be filled by the “appointing authority” to the vacated position, rather than being filled by the Governor in all cases. Id.

This violation of the separation of powers is not corrected on July 1, 2017, when the

Governor is finally permitted to appoint four of the eight members of the New State Board.

Specifically:

x The Governor does not make all appointments to the New State Board, but splits appointment authority with the General Assembly, with each branch appointing four of the eight members. 2016 N.C. SESS.LAWS 125, Part I, § 2.(c).

x The Governor cannot appoint a majority of members from the party of his choice, but instead must appoint four member of an evenly divided eight member New StateBoard. Id.

x The Governor’s choices must be made from political party lists while the General Assembly appointments are entirely generated from within the General Assembly. Id.

x The Governor must choose his four members from two lists of three (thereby requiring him to select two-thirds of the potential members presented to him); while the Speaker recommends to the General Assembly one member each from two lists of three and the President Pro Tempore recommends to the General Assembly one member each from two lists of three (requiring that they only chose one-third of potential members presented to them in making their four selections). Id. § 2.(c).

x The Governor may remove only his own appointees. Id.

x The New State Board chair will rotate between the parties (in a manner which disadvantages the majority party) rather than being presumptively chosenbythe appointed members of the Governor’s party. Id.

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49/384 B. The State Board of Elections and the New State Board are core executive agencies, tasked with making policy and executing the State’s election laws.

Like the commissions at issue in McCrory, the State Board of Elections and the New State

Board are “housed in the executive branch of government. . . .” 368 N.C. at 636, 781 S.E.2d at

250; 2016 N.C. SESS.LAWS 125, Part I, § 2.(c). Indeed, “[a]dministrative agencies and departments exist pursuant to Section 11 of Article III of the Constitution of North Carolina, and as such are part of the Executive Branch of our State’s government.” See Mission Hosps., Inc. v.

N.C. HHS, 189 N.C. App. 263, 272, 658 S.E.2d 277, 282 (2008); N.C. Gen. Stat. § 150B-2(1a)

(defining “agency” for purposes of the Administrative Procedure Act as “an agency or an officer in the executive branch of the government of this State and includes the Council of State, the

Governor’s Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch.” (emphases added)); id. § 150B-1(c)(6) (exempting State

Board of Elections from Administrative Procedure Act only as to the complaint procedure for the

Help America Vote Act of 2002).

Contrary to Defendants’ argument, the State Board of Elections—and the New State Board if allowed to replace it—is primarily administrative or executive in character. Paragraph 31 of the

Governor’s Amended Complaint details just a few of the executive functions carried out by the

State Board of Elections. These include administering the statewide voter registration system, supervising county boards of elections in their implementation of election laws, and approving voter registration plans of county boards of education, among many others. See Appendix A for a more complete description of the State Board’s administrative and executive duties.

The duties of the State Board of Elections to supervise the election laws require it to implement and enforce Chapter 163 of the General Statutes, which includes almost 400 single- spaced pages of annotated statutory text. In addition to supervising its own staff and employees,

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50/384 the State Board supervises the county boards of elections in North Carolina’s 100 counties,

bringing hundreds if not thousands of additional full- and part-time employees within its authority.

Moreover, the statutory duties of the State Board of Elections include administrative

responsibilities with respect to the execution of various federal statutes relating to voting

administration, including the National Voter Registration Act, the Help America Vote Act, as well

as implementation of various Census Bureau requirements related to voting. See, e.g., N.C. Gen.

Stat. §§ 163-82.14 (requiring uniform program to maintain voter lists in compliance with federal law); § 163-82.27 (authorizing State Board “to adopt rules and guidelines to implement the minimum requirements of the Help America Vote Act of 2002”); § 163-132.1C (requiring executive Director of State Board of Elections to report to Census Bureau regarding voting precincts “as of January 1, 2018”).

As part of executing the State’s election laws, the State Board of Elections is tasked with making core policy determinations. For example, as alleged in the Amended Complaint (at ¶ 51), pursuant to N.C. Gen. Stat. § 163-227.2, the State Board of Elections has the authority not only to implement one-stop early voting procedures, but also has the broader power to approve or adopt county plans that specify the location and hours of all early voting sites (other than at the county board of elections). As the number of voters who rely on early voting increases, the ramifications of such plans are immeasurable, especially when the State Board of Elections is called on by a county board to approve plans that might limit the location and hours of early voting sites.

The State Board of Elections also makes substantial policy through its Executive Director, who is appointed by the board. The Executive Director, for example, periodically issues numbered memos and advisory opinions regarding various issues. See, e.g., N.C. Gen. Stat. § 163-278.23

(“The Executive Director of the Board of Elections shall issue written opinions to candidates, the

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51/384 communications media, political committees, referendum committees, or other entities upon request, regarding filing procedures and compliance with this Article.”); SBOE Numbered Memo

2016-19 (Oct. 12, 2016) (memorandum from executive director to county boards detailing the acceptance of voter registration forms in the aftermath of Hurricane Matthew).

Finally, in addition to executing the State’s election laws, the State Board of Elections also has rulemaking authority with respect to those laws. See, e.g., N.C. Gen. Stat. § 163-22 (“[The

State Board of Elections] shall have authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable . . . .”); § 163-278.21

(“[The State Board of Elections] shall have responsibility ...forpromulgatingallregulations necessary for the enforcement and administration of [the statutes regulating political contributions and expenditures]. . . .”). This broad grant of authority provides the State Board of Elections extensive power with respect to the enforcement and administration of Chapter 163, thereby allowing the board to exercise control over much of the electoral process in North Carolina.

The overall effect of the statutory grants of powers and duties to the State Board of

Elections—and now to the New State Board—places them unmistakably within the core functions of the executive, with plenary power over the administration and enforcement of elections laws.

See, e.g., Ponder v. Joslin, 262 N.C. 496, 500, 138 S.E.2d 143, 147 (1964) (noting the election laws grant “broad supervisory powers to the State Board of Elections”); see also States’ Rights

Democratic Party v. State Bd. of Elections, 229 N.C. 179, 186, 49 S.E.2d 379, 384 (1948) (noting

State Board of Elections was “created to administer” the election laws); N.C. State Conf. of the

NAACP v. McCrory, 831 F.3d 204, 235 n.11 (4th Cir. 2016) (“The North Carolina State Board of

Elections is the state agency responsible for administering the elections process and overseeing campaign finance disclosure.”).

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52/384 State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), is particularly instructive on this issue. In that case the: (a) powers of the EnvironmentalManagement

Commission (“EMC”) to, among other things, “issue special orders,” “conduct and direct that investigations be conducted pursuant to certain statutes,” “conduct public hearings,” direct investigations, “to review and have general oversight and supervision over local air pollution control programs,” to supervise the “maintenance and operation of dams” and “all pollution”; and

(b) duties to “establish standards and adopt rules and regulations” for a variety of air, water, and land protection laws made it “crystal clear to [the North Carolina Supreme Court] that the duties of the EMC are administrative or executive in character and have no relation to the function of the legislative branch of government, which is to make laws.” Id. at 607-08, 286 S.E.2d at 88

(emphasis added). See Appendix B for a chart comparing the EMC powers and duties enumerated in Wallace to the State Board of Elections’ powers and duties.

Defendants’ argument that because the State Board of Elections also has certain quasi- judicial duties, it cannot be an executive agency misses the mark. The relevant standard, articulated in McCrory, is that the agency in question be “primarily administrative or executive in character.” 368 N.C. at 646, 781 S.E.2d at 256 (emphasis added). It is beyond dispute that the

State Board of Elections is “primarily” executive in character.

C. Calling the New State Board “independent” does not change the constitutional analysis.

Like the Coal Ash Management Commission in McCrory, the New State Board is nominally “independent” from other portions of the executive branch. See id. 368 N.C. at 637,

781 S.E.2d at 251 (citing N.C. Gen. Stat. § 130A-309.202(n)); 2016 N.C. SESS.LAWS 125, Part I,

§ 2.(c). Nonetheless, that express legislative declaration of “independence” did not prevent the

North Carolina Supreme Court from finding that commission to be within the Governor’s control

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53/384 as the State’s executive because the commission was “primarily administrative or executive in character” and had “final authority over executive branch decisions.” McCrory, 368 N.C. at 645,

781 S.E.2d at 256.

Similarly, in this case the nominal “independence” of the New State Board is belied by the

General Assembly according to it the powers of a principal department. Under Section 2 of Senate

Bill 4:

The [New] State Board shall exercises its statutory powers, duties, functions, and authority and shall have all powers and duties conferred upon the heads of principal departments under G.S. 143B-10.

2016 N.C. SESS.LAWS 125, Part I, § 2 (emphasis added).

Those “powers and duties” under N.C. Gen. Stat. § 143B-10 include eight express references to required approval by, or reporting to, the Governor. The statute therefore makes perfectly clear that principal department heads are subject to control by the Governor. For example, under Section 143B-10, a principal department (which would now include the New State

Board) has the duty to: (1) “submit to the Governor an annual plan of work,” N.C. Gen. Stat.

§ 143B-10(h); (2) “develop and report to the Governor legislative, budgetary, and administrative programs to accomplish comprehensive, long-range coordinated planning and policy formulation in the work of his department,” id. § 143B-10(i); (3) adopt “[r]ules, approved by the Governor,to govern the management of the department, id. § 143B-10(j)(2); and (4) adopt “[p]olicies, consistent with law and with rules established by the Governor.” Id. § 143B-10(j)(3). (Emphases added). See also id. §§ 143B-10(b) and (d) (requiring approval from the Governor for policy or organizational changes).

By the express terms of the Board of Elections Amendments, the New State Board is not wholly independent, but instead must report to the Governor and may only adopt rules and policies

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54/384 “approved by the Governor.” It is, in short, an executive agency tasked with performing core executive functions, no different than the Coal Ash Management CommissioninMcCrory.

D. The Board of Elections Amendments prevent the Governor from faithfully executing the election laws through the New State Board because the legislature exercises too much control.

Under McCrory, given the substantial administrative and executive functions granted to the New State Board, the Governor “must have enough control over [the appointees] to perform his constitutional duty,” to faithfully execute the laws. 368 N.C. at 646, 781 S.E.2d at 256. A constitutional violation occurs if the Board of Elections Amendments “prevent” the Governor

“from performing [his] constitutional duties.” Id. at 645, 781 S.E.2d at 256.

As McCrory makes clear, “the degree of control that the Governor has over [executive branch appointees] depends on his ability to [1] appoint the [members], [2] to supervise their day- to-day activities, and [3] to remove them from office.” Id. at 646, 781 S.E.2d at 256 (emphases added).

Appointment and removal powers allow the Governor to exercise control over any member of the New State Board. Flowing from the power of removal is the Governor’s ability to supervise the appointee, by—among other things—setting policies, directing activities, receiving reports on work completed, reviewing work product, and ultimately ensuring that tasks are completed and, if not, taking appropriate action (including removal). Cf. N.C. Gen. Stat. § 147-12(a) (noting

Governor’s general power of supervision includes ability to visit State offices to ensure proper management and to see that duties of all offices are performed); Tice v. Dep’t of Transp., 67 N.C.

App. 48, 55, 312 S.E.2d 241, 245 (1984) (“The executive power of the State is vested in [the

Governor], N.C. CONST. art. III, § 1; and he has the duty to supervise the official conduct of all executive officers. . .”); cf. also Myers v. United States, 272 U.S. 52, 135 (1926) (“The ability and

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55/384 judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them.”).

If the Board of Elections Amendments are permitted to take effect, the Governor will have no control over the New State Board until June 30, 2017. As set forth above, under the Board of

Elections Amendments, all appointees to the New State Board will be appointed by the General

Assembly and will serve until June 30, 2017. See 2016 N.C. SESS.LAWS 125, Part I, § 13. Only the General Assembly—and not the Governor—will be permitted to remove such members, and only for “misfeasance, malfeasance, or nonfeasance.” Id. §2.(c).

The violation of the separation of powers is not corrected on July 1, 2017, when the

Governor is finally permitted to appoint four of the eight members of the New State Board. As set forth above, even with the July 1, 2017 appointments, the Governor is prevented from controlling the New State Board, as required by the separation of powers clause, art. I, § 6, the executive powers clause, art. III, § 3, and faithful execution clause, art. III, § 5(4) of North Carolina

Constitution.

Specifically, the Governor only appoints four of eight members of the New State Board, while six of eight members are required to take any action. The Governor does not have the power to remove all eight members (or even six), but instead may only remove the four members that he appoints. Ultimately, any three members of the New State Board may block any board action or

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56/384 investigation—meaning only three of the four legislative members can vote to prevent the board from acting.2

As such, the New State Board is similar to the commissions that McCrory held unconstitutional as violating separation of powers. The Governor’s inability to appoint a controlling number of members of the New State Board means that the legislature retains control over that board and can prevent the Governor from taking action. By reserving too much control in the legislature—and thus blocking the Governor from ensuring faithful execution of the laws—

Part I of Senate Bill 4 remains unconstitutional for the period beginning on July 1, 2017.

The parallels between this case and McCrory are striking:

When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints. When those officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented in any area of the law that the commission regulates. As a result, the Governor cannot take care that the laws are faithfully executed in that area. The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.

McCrory, 368 N.C. at 647, 781 S.E.2d at 257 (emphasis added).

2 The structure of the New State Board and the unique procedures governing its ability to take action raises a serious question as to whether the New State Board will be able to fulfill its duties to administer elections in North Carolina. Under the State’s election laws, the failure of the New State Board to function will mean that the judicial branch must exercise duty of implementing the election laws, which itself is a violation of separation of powers. N.C. CONST.art.I,§6.

This problem is well illustrated by the Affidavit of Joshua D. Malcolm, a State Board of Elections member, which details how the new law’s requirement of a super-majority plus an order from Wake County Superior Court allowing a subpoena to issue will effectively stymie the board’s ability to investigate potential violations of the state’s election laws. See Malcolm Aff. ¶¶ 5-11. 22

57/384 The State Board of Elections plainly plays the core executive role in administering the election laws. Because the Board of Elections Amendments prevent Governor Cooper from ensuring faithful execution of the election laws, the Board of Elections Amendments violate the separation of powers clause of the North Carolina Constitution.

III. The Advice and Consent Amendment violates separation of powers by interfering with the Governor’s appointment of the heads of principal departments.

This Court entered a temporary restraining order on February 7, 2017 preventing Part III of House Bill 17, 2016 N.C. SESS.LAWS 126, §§ 38-39 (the “Advice and Consent Amendment”), from being used by the North Carolina Senate to require the Governor’s appointees to appear for senatorial confirmation hearings. The Court heard argument on the Governor’s motion for preliminary injunction on Friday, February 10, 2017. On Monday, February 13, 2017, the Court dissolved the temporary restraining order and denied the preliminary injunction without prejudice to Plaintiff to seek further relief.

A. What the Advice and Consent Amendment would do.

The Advice and Consent Amendment purports to require the Governor to submithis appointments for the “head of each principal State department” (i.e., cabinet secretaries) to the

Senate for advice and consent. See 2016 N.C. SESS.LAWS 126, §§ 38-39 (amending N.C. Gen.

Stat. § 143B-9). If such consent is not obtained during the session of the General Assembly—or if the Senate specifically disapproves of the Governor’s choice—the appointee may no longer serve as a department head. Id. (enacting § 143B-9(a)(1),(2)).

B. Requiring advice and consent for the Governor’s most significant executive officers is a substantial encroachment into executive power.

Through the Advice and Consent Amendment, the General Assembly attempts toexercise the Governor’s power to control the executive branch through senatorial confirmation—

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58/384 effectively, the right to veto—the principal department heads. This attempt to assume executive power without constitutional authorization violates the separation of powers. See McCrory, 368

N.C. at 645, 781 S.E.2d at 256 (“The clearest violation of the separation of powers clause occurs when one branch exercises power that the constitution vests exclusively in another branch.”).

The significance of Defendants’ overreach is plainly shown by the core executive functions performed by the principal department heads. These appointees report directly to the Governor.

They possess significant authority as the most senior executive officials who receive their power directly from the Governor. The principal departments that these appointees lead are important enough to be explicitly recognized in the executive article of the North Carolina Constitution. See

N.C. CONST. art. III, § 11.

There can be no doubt that the principal department heads that are the subject of the Advice and Consent Amendment are all core executive officers. Pursuant to the statutory section entitled

“Powers and duties of heads of principal departments,” each principal department head must:

x Establish necessary subordinate positions. Each department head is also empowered to appoint and remove those subordinates. Id. § 143B-10(c).

x Supervise, direct, and control all of the officers and employees of their department; transfer those officers and employees between positions; assign functions to these officers and employees. Id. § 143B-10(a),(c).

x “Create and appoint committees or councils to consult with and advise the department” and “appoint advisory and technical committees. . . .” Id. § 143B-10(d),(i).

x Directly perform or supervise “all management functions” which “include planning, organizing, staffing, directing, coordinating, reporting, and budgeting.” Id. § 143B- 10(e).

x Prepare and present a budget request for the department. Id. § 143B-10(g).

x Submit to the Governor an annual plan of work and annual report for each fiscal year and develop and report “legislative, budgetary, and administrative programs to accomplish comprehensive, long-range coordinated planning and policy formulation in the work of his department.” Id. § 143B-10(h),(i).

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59/384 x Adopt policies to “reflect internal management procedures within the department.” Id. § 143B-10(j).

The McCrory court found that the three commissions at issue there were primarily executive because they had “final authority over executive branch decisions.” See 368 N.C. at

645, 781 S.E.2d at 256. Each commission could overrule the decisions of a principal department— the Department of Environment and Natural Resources—and thus had “final executive authority.”

Id. at 645-46, 781 S.E.2d at 256.

The principal department heads at issue with the Advice and Consent Amendment are the final authorities in each of their departments. They are chief executive officers of their department, subject only to the Governor. Cf. Frye Reg’l Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 43, 510 S.E.2d

159, 162 (1999) (“noting Secretary of the Department [of Human Resources] does have the final decision-making power with regard to all functions [pursuant to statute]...”);id. at 44, 510 S.E.2d at 163 (“The Department of Human Resources is a department of the Executive Branch of state government, with its Secretary reporting directly to the Governor as chief executive officer of the state.”).

Because the principal department heads are core executive officers, subjecting them to senatorial advice and consent in the absence of express constitutional authority violates separation of powers. See N.C. CONST.art.I,§6;id. art. III, §§ 1, 5(4); McCrory, 368 N.C. at 636, 781

S.E.2d at 250. Similar to the United States Supreme Court’s observations regarding the President’s powers, the Governor “alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.” Myers v. United States, 272 U.S. 52, 117 (1926). “As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those

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60/384 who were to act for him under his direction in the execution of the laws.” Id. To fulfill his duty to faithfully execute the laws, the Governor must be able to select those individuals that he believes will assist him best, without unconstitutional legislative interference.

C. Senatorial advice and consent is an exception to the separation of powers designed as a check on executive power.

The familiar senatorial confirmation hearings that take place in the federal government are expressly authorized by the federal Constitution:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. CONST. Art. II, § 2, Cl. 2 (emphases added). Under the plain language of the United States

Constitution, the President appoints all officers, and the Senate can choose to require advice and consent for all of them.

The appointments clause of the North Carolina Constitution is fundamentally different and more limited. It does not give the General Assembly or the Senate the authority to require advice and consent on all executive branch appointments. See McCrory, 368 N.C. at 640 n.3, 781 S.E.2d at 252 n.3 (“Our interpretation of the appointments clause in the state constitution differs from the

United States Supreme Court’s interpretation of the federal constitution’s appointments clause.”); see also State ex rel. Lanier v. Vines, 274 N.C. 486, 494, 164 S.E.2d 161, 165-66 (1968) (“It is for the State [(not the federal government)] to determine whether and to what extent [the State’s] powers shall be kept separate between the executive, legislative and judicial departments of its government.”). As interpreted by McCrory, the North Carolina appointments clause only applies to constitutional officers:

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61/384 Appointments. The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all [constitutional] officers whose appointments are not otherwise provided for [in this constitution].

See N.C. CONST. art. III, § 5(8); McCrory, 368 N.C. at 644, 781 S.E.2d at 255. The Court repeated that holding twice more in its opinion. See id. at 642, 644, 781 S.E.2d at 254, 255.

It is important to note that only one other provision in the North Carolina Constitution provides for advice and consent as to the Governor’s executive appointments. Specifically, the

Governor appoints eleven members to the State Board of Education, “subject to confirmation by the General Assembly in joint session.” N.C. CONST. art. IX, § 4(1).

The more limited power of senatorial or legislative advice and consent in the North

Carolina Constitution makes sense in light of the other methods used to check the Governor’s power—methods that have no analogy to the balance of powers struck in the federal constitution.

For example, the North Carolina Constitution provides for the direct election of certain executive branch officers such as the Secretary of State, Auditor, Treasurer, Superintendent of Public

Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and

Commissioner of Insurance. N.C. CONST. art. III, § 7(1). See Report of the North Carolina State

Constitution Study Commission 118-19 (1968) (noting that the Council of State members serve “in part as observers of the Governor and should be sufficiently independent of his control to raise objections in case of fiscal or legal irregularities on his part”).

D. The North Carolina Senate does not have inherent power to exercise advice and consent as to the Governor’s appointed department heads.

Undeterred by the separation of powers, Defendants assert that the General Assembly’s

“inherent authority” authorizes advice and consent. Such inherent power is, by definition, not specified or articulated in the North Carolina Constitution. Defendants’ unprecedented view of

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62/384 inherent legislative power is that the General Assembly can do whatever it wants, whenever it wants.

But Defendants’ argument ignores that the separation of powers clause expressly prohibits such legislative encroachment on executive powers. It bears repeating that the separation of powers clause is set forth in Article I, the Declaration of Rights, which was adopted before the

North Carolina Constitution and sets forth fundamental rights at the foundation of our democratic government. See Corum v, 330 N.C. at 782, 413 S.E.2d at 289-90. The Declaration of Rights protects the people from tyrannical government by guaranteeing certain rights. See id. at 782, 413

S.E.2d at 290. Requiring that the powers of the three branches of governmentbekeptseparateis a fundamental part of that guarantee. It is no accident that the people emphatically required separation of powers before they created the legislature, executive, and judicial branches in subsequent articles of the constitution. Separation of powers, if followed and enforced, secures the better government of the North Carolina and protects it from the whims of “shifting political majorities.” Id. at 787, 413 S.E.2d at 292.

1. An inherent legislative power of advice and consent cannot be reconciled with separation of powers.

The power of advice and consent cannot be inferred from an assertion of ill-defined,

“inherent” legislative power.3 In fact, the argument that this inherent power permits legislative veto of core executive officers runs headlong into the constitutional guarantee of separation of powers.

3 Despite Defendants’ assertions that advice and consent is an inherently legislative power, historically it has been exercised by other bodies in North Carolina. See State ex rel. Howerton, v. Tate, 68 N.C. 546, 548 (1873) (noting that the General Assembly created a railroad corporation and vested Governor with the power to appoint four board members “by and with the advice of the Council of State”).

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63/384 In our constitution, the people of North Carolina gave the General Assembly power of advice and consent as to the Governor’s appointive power in only two specific instances— constitutional officers and appointees to the State Board of Education. See N.C. CONST. art. III,

§ 5(8); id. art. IX, § 4(1). The Constitution provides additional appointment power to the Governor for a number of offices, both executive and judicial. For instance, the Governor appoints to fill:

x Vacancies in the constitutional offices of Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commission of Insurance. Id. art. III, § 7(3).

x Vacancies in the judicial branch, including Supreme Court Justices, Judges of the Court of Appeals, and Superior Court Judges. Id. art. IV, § 19.

x Vacancies in the office of district attorney for each prosecutorial district. Id. art. IV, § 19.

x Vacancies in the State Board of Education. Id. art. IX, § 4(1).

None of these constitutional provisions provide for the advice and consent of the legislature or the Senate.

This specific allocation of powers is instructive to the question before the Court. If the people had intended for the Senate to have the power to confirm the Governor’s appointments to head the principal departments of the executive branch, they would have provided for that power in the Constitution. Indeed, the people recognized the principal departments as part of the executive branch in Article III, Section 11 of the Constitution. And they specifically empowered the General Assembly to create those departments and assign “their respective functions, powers, andduties....”N.C.CONST. art. III, § 11.

However, the people affirmatively did not grant the General Assembly the power of advice and consent over the heads of those departments. That choice, affirmatively made by the people in our constitution, cannot be cavalierly disregarded by an assertion of inherent power.

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64/384 This conclusion, that such significant intrusion into the executive branch must be specifically authorized by the people as a check on executive power and cannot be inferred, is buttressed by decisions from a number of states which have considered this question. See, e.g.,

Bradner v. Hammond, 553 P.2d 1, 6-7 (Alaska 1976); State ex rel. Johnson v. Hagemeister,73

N.W.2d 625, 628 (Neb. 1955); Walker v. Baker, 196 S.W.2d 324, 328 (Tex. 1946); Matheson v.

Ferry, 657 P.2d 240, 245 (Utah 1982) (Stewart, J., concurring).

Perhaps the most informative decision is that of the Alaska Supreme Court in Bradner v.

Hammond, 553 P.2d 1.4 Faced with the question of whether the power of advice and consent could be inferred when not specifically provided for in the state constitution, the court explained:

[T]he separation of powers doctrine requires that the blending of governmental powers will not be inferred in the absence of an express constitutional provision. To hold otherwise would emasculate the restraints engendered by the doctrine of separation of powers and result in potentially serious encroachments upon the executive by the legislative branch, because there would be no logical termination point to the legislature’s confirmation of executive appointments.

Bradner, 553 P.2d at 7-8; see also, e.g. Walker, 196 S.W.2d at 328 (“[S]ince the Constitution specifies the circumstances under which the Senate may defeat the Governor’s appointments, there is an implied prohibition against its power to add to those circumstances.”). Because it resonates with the plain language of the North Carolina Constitution and separation of powers precedent like

McCrory, the reasoning of Bradner is persuasive.

4 It bears noting (specifically in response to Judge Foster’s question) that Alaska, like North Carolina, appears to recognize the power of the state legislature as plenary unless restricted by constitutional provisions. See McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska 1988) (noting duty of courts to avoid interfering with the legislature and frustrate the “intent of the elected representatives of the people” and applying same logic to legislative initiaties by the people); State by Dep’ts of Transp. & Labor v. Enserch Alaska Constr., 787 P.2d 624, 636 n.3 (Alaska 1989) (Burke, J., concurring) (“A state’s legislative power is plenary. Thus, a stateisfreetoenactany law not forbidden by its own constitution or federal law.”). 30

65/384 Plainly, the North Carolina Constitution expressly provides for senatorial consent when such consent was intended by the people. Cf. Bradner, 553 P.2d at 7 (“Other courts which have been called upon to resolve this issue have been unanimous in their holdings that [legislative] confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch of government.” (emphasis added)) (collecting cases).

Conversely, in the absence of an express constitutional provision, a legislative act requiring advice and consent for executive officers violates separation of powers. See People ex rel. Welker v. Bledsoe, 68 N.C. 457, 460 (1873)5 (“Filling an office is an executive act. This is a fundamental principle.”); id. at 464 (“Providing funds, making regulations and creating the necessary offices for the management of the institution, are acts of legislation; but filling these offices by competent men, is a different matter—that is an executive function.”); Bradner 553 P.2d at 6-7 (“[W]e conclude that the appointment of executive officers is an executive function; for without such a power, the responsibility for executing executive duties would be diffused and the goal of separation of branches of government, avoiding too great a concentration of power in one branch, would be defeated.”).

Nowhere does the North Carolina Constitution provide an exception to separation of powers that authorizes the General Assembly to intrude into executive function by vetoing the

Governor’s appointed department heads.

5 Welker analyzed the North Carolina Constitution of 1868, which, as detailed in McCrory, contained a provision granting the Governor “the exclusive power to appoint all constitutional and statutory officers unless the constitution itself provided otherwise.” McCrory, 368 N.C. at 641-42, 781 S.E.2d at 252-54 (discussing North Carolina Constitution of 1868 and judicial interpretations interpreting same). The differing appointment power under the 1868 Constitution does not affect the Welker Court’s conclusion that the power of appointment is executive.

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66/384 2. Defendants’ inherent power argument was rejected by McCrory v. Berger.

This is not the first time that the legislature has advanced an over-expansive view of legislative authority. In the General Assembly’s appellant brief to the Supreme Court in McCrory v. Berger, they argued “that the North Carolina Constitution allocates control of the power of appointment to the General Assembly.” McCrory v. Berger, No. 113A15, Appellant’s Brief p. 27

(May 4, 2015) (available at the appellate courts electronic filing site).

The Supreme Court rejected that argument just last year:

Under the rule that defendants advance, the General Assembly could appoint every statutory officer to every administrative body, even those with final executive authority, and could prohibit the Governor from having any power to remove those officers. This rule would nullify the separation of powers clause, at least as it pertained to the General Assembly’s ability to control the executive branch.

Our appointment cases do not embrace defendants’ proposed rule.

Id. at 647, 781 S.E.2d at 257.

If inherent legislative power permits the North Carolina Senate to veto the Governor’s appointments to head the principal departments, inherent legislative power has no practical limit.

That is not the law in North Carolina. Instead, separation of powers prevents the General Assembly from assigning to itself (or any portion of itself) powers that interfere with executive function.

E. The Advice and Consent Amendment is therefore unconstitutional.

In summary, the Advice and Consent Amendment seeks to prevent the Governor from appointing principal department heads whom he believes will faithfully carry out the laws unless the North Carolina Senate approves of that appointee. The threat of a veto from the senatorial confirmation process will force the Governor—and all future governors—to select nominees who will mollify the North Carolina Senate. That allows the Senate to exert control over the

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67/384 implementation of executive policy and prevents the Governor from ensuring that the laws are faithfully executed. This invasion of core executive authority is not authorized by any provision of the North Carolina Constitution. Thus, the Advice and Consent Amendment unconstitutionally infringes on the Governor’s core executive powers, in violation of separation of powers, and summary judgment should be granted to the Governor. See N.C. CONST.art.I,§6;id. art. III,

§§ 1, 5(4).

IV. The Exempt Positions Amendments violates separation of powers by limiting the Governor’s ability to remove political appointees of the previous administration.

The authority to fill the policymaking and key managerial positions within the Governor’s office and executive branch departments with appointees who share the Governor’s “views and priorities” for the State is a core element of the Governor’s executive power. Without such authority, the Governor cannot ensure that the laws are faithfully executed.

The portions of Sections 7 and 8 of House Bill 17 codified as N.C. Gen. Stat. §§ 126-

5(d)(2c), as well as Section 33 of House Bill 17, which sets the effective dates for the enactment

(collectively, the “Exempt Positions Amendments”), purport to limit the Governor’s ability to remove political appointees from the previous administration. This limit on the Governor’s ability to fill the policymaking and key decision-making positions of the executive branch with people who share his “views and priorities” violates the North Carolina Constitution.

A. Legal background on exempt positions.

Under Chapter 126 of the North Carolina Human Resources Act (the “NC HR Act”), the

Governor holds the power to appoint personnel to “exempt” positions within the executive branch.

“Exempt” positions are policymaking and managerial positions that are exempt from—and therefore not subject to—the NC HR Act. See Carrington v. Brown, 136 N.C. App. 554, 559, 525

S.E.2d 230, 235 (2000). “The rationale for creating exempt positions, positions exempt from the

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68/384 protection afforded by the civil service statute, was to allow the governor to employ top level state employees on an at-will basis, and to reposition these employees as he felt necessary in order to further the agenda of the administration.” Id. at 560, 525 S.E.2d at 234 (quoting Stott v. Haworth,

916 F.2d 134, 142 (4th Cir. 1990)).

The NC HR Act defines, in relevant part, the following classes of exempt positions6:

x An exempt managerial position is a position “with significant managerial or programmatic responsibility that is essential to the successful operation of a State department, agency, or division, so that the application of G.S. 126-35 to an employee in the position would cause undue disruption to the operations of the agency, department, institution, or division.” N.C. Gen. Stat. § 126-5(b)(2).

x An exempt policymaking position is a position “with the authority to impose the final decision as to a settled course of action to be followed within a department,agency,or division, so that a loyalty to the Governor or other elected department headintheir respective offices is reasonably necessary to implement the policies of their offices.” N.C. Gen. Stat. § 126-5(b)(3).

For those exempt positions designated as policymaking positions, which are generally at or near the top of the hierarchy of an executive branch agency, the Governor is free to select his hires without posting the positions publicly or otherwise vetting candidates through a competitive hiring process. As a result, exempt policymaking positions, in particular, are typically filled at the discretion of the Governor rather than through merits-based selection. In addition, while exempt positions designated as managerial positions must be posted publicly, those positions are likewise typically filled with individuals who share the Governor’s policymaking goals. Employees in exempt managerial positions are generally directors, deputy directors, supervisors, or bureau chiefs who manage the day-to-day operations of the agency. (Cobb Aff. ¶ 9.)

6 Chapter 126 also includes certain statutory exempt positions that are not considered either managerial or policymaking exempt positions. See, e.g., N.C. Gen. Stat. §§ 126-5(c) and (c1). 34

69/384 Exempt positions are “at will,” meaning that the Governor has more flexibility to terminate or re-assign an exempt employee. By contrast, non-exempt, “career” State employees are entitled to protections under the NC HR Act, including that they can only be terminated for cause and after some due process. Under N.C. Gen. Stat. § 126-1.1(a), a “career State employee” is one who: (a)

“[i]s in a permanent position with a permanent appointment,” and (b) “[h]as been continuously employed by the State . . . in a position subject to the North Carolina Human Resources Act for the immediate 12 preceding months.”

Accordingly, before the Exempt Positions Amendments, exempt employees could not attain “career” status until they had worked in a permanent, non-exempt, position for at least a year. During that first year, the employee was “probationary” and could be terminated at will. In that respect, employees who shifted from exempt to non-exempt status as part of the transition between administrations stood in the same position as persons newly hired into permanent, non- exempt positions by the new Governor. In short, each new Governor would have an opportunity to assess those employees’ performances and willingness to implement the Governor’s policies and priorities for up to a year, keep those who merited “career” status, and terminate those who did not. (Am. Compl. ¶ 105; Cobb Aff. ¶ 11.) Governor Cooper simply wants the same amount of time previous Governors have enjoyed to make reasoned judgments about the job performance of formerly exempt employees.7

B. Factual background on exempt positions.

In 2013, after Governor McCrory took office, the General Assembly increased the number of exempt positions to 1,500. That change meant that Governor McCrory was able to employ over

7 To be clear, Governor Cooper has no plans to terminate all 900 exempt employees converted to non-exempt positions by Governor McCrory.

35

70/384 a thousand more persons than his predecessor in positions that were exempt from the NC HR Act.

See 2013 N.C. SESS.LAWS 382. Then, after Governor Cooper was elected, the General Assembly immediately reduced the total number of positions the Governor may designate as exempt in the departments enumerated in N.C. Gen. Stat. § 126-5(d)(1) from 1,500 to 425, and accorded career status to most of the individuals whose positions changed from exempt to non-exempt.8 (Am.

Compl. ¶ 103; Cobb Aff. ¶¶ 18-20.)

Governor Cooper submitted with his Motion the Affidavit of Ann G. Cobb, who has worked for nearly 30 years in human resources for various North Carolina state agencies, including as deputy director of the Office of State Human Resources (“OSHR”). Ms. Cobb retired in early

2015, but since January 1, 2017, she has been working on a temporary basis forOSHR.

Ms. Cobb testified that exempt positions are crucial for a Governor becauseheorshemust have the confidence that his or her decision-making employees can be trusted to support, and work to implement, the Governor’s agenda. An important part of that, according to Ms. Cobb, is that exempt positions provide the Governor with the flexibility to terminate or re-assign exempt employees as may be necessary. (Cobb Aff. ¶ 6.)

According to Ms. Cobb, when an administration changes, the new Governor’s staff will collaborate with OSHR staff to review the personnel histories of exempt employees and, in many cases, inform them they are terminated. The new Governor will then name his cabinet secretaries and top-level policymaking exempt employees in each department. Those employees, in most cases, will work to fill managerial exempt positions throughout the executive branch. (Cobb Aff.

¶ 12.)

8 As Governor Cooper indicated in the Amended Complaint, the reduction of exempt positions in these departments from 1,500 to 425 is not being challenged in this lawsuit. 36

71/384 Exempt employees are the employees who, along with the Governor, set the policy within a particular department or agency in accordance with the Governor’s policy goals and priorities.

Exempt employees ensure that the Governor’s policy is carried out, make key decisions about how to apply the law within that department or agency, and provide direction to rank-and-file employees. If these decision-making employees do not share the Governor’s policy views and priorities, they can very easily undermine the Governor’s work on critical issues. (Cobb Aff. ¶

13.)

As a result, it is of critical importance that the Governor have the authority to fill these important positions with people he chooses.

C. The Exempt Positions Amendments seek to radically change the law with respect to exempt positions.

The Exempt Positions Amendments added the following subsection to the NC HRAct:

Changes in Cabinet Department Exempt Position Designation. – If the status of a position designated exempt pursuant to subsection (d)(1) of this section is changed and the position is made subject to the provisions of this Chapter, an employee occupying the position who has been continuously employed in a permanent position for the immediate 12 preceding months, shall be deemed a career State employee as defined by G.S. 126Ǧ1.1(a) upon the effective date of the change in designation.

2016 N.C. SESS.LAWS 126, § 7, codified at N.C. Gen. Stat. § 126-5(d)(2c).

The new subsection seeks to fundamentally change State personnel laws by purporting to permit Governor McCrory to convert more than 900 employees holding positions he had previously designated as exempt into “career State employees,” with all the protections of the NC

HR Act. By attempting to accord career status to State employees who were previously designated as key policymakers and key managers in the prior administration, the General Assembly has, in effect, substituted its judgment for the Governor’s in terms of who should make and execute the policy of the executive branch of state government. That leaves the Governor with little control

37

72/384 over the views and priorities of the key employees within the executive branch and allows the

General Assembly to exert too much control over the determination and implementation of executive policy. See McCrory, 368 N.C. at 647, 781 S.E.2d at 257.

The Exempt Positions Amendments unconstitutionally infringe on the Governor’s executive powers by operating in tandem with another provision of House Bill 17 that dramatically reduced the number of “exempt” positions the Governor may designate in certain specified executive agencies from 1,500 to 425. That change allowed Governor McCrory to employ over a thousand more persons than his predecessor in positions that were exempt.

D. Defendants attempt to embed more than 900 of Governor McCrory’s exempt employees within the Cooper administration.

In effect, the Exempt Positions Amendments attempt to allow the General Assembly to embed hundreds of policymaking and key managerial employees hired by Governor McCrory in the heart of Governor Cooper’s administration. And that is what in fact has occurred. (Am.

Compl. ¶¶ 107-09; Cobb Aff. ¶¶ 17-20.)

As detailed by Ann Cobb, after the legislature increased the number of exempt positions available to Governor McCrory to 1,500, he filled many of the additional 1,000 or more spots by converting positions from positions subject to the NC HR Act to “exempt” positions to give him the flexibility to terminate or re-assign formerly career employees. In other cases, Governor

McCrory hired new exempt employees who were politically loyal to him. (Cobb Aff. ¶ 16.)

For example, in 2013 and 2014, Governor McCrory created approximately 465 exempt positions within the state Department of Health and Human Services (“DHHS”), either by converting permanent positions to exempt or by creating new exempt positions. As a result, by the end of 2014, DHHS alone had more exempt positions than the Perdue administration had in all the executive branch departments combined. (Cobb Aff. ¶ 17.)

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73/384 Then, in the two weeks after House Bill 17 was passed, the McCrory administration purported to convert more than 900 exempt positions to permanent, non-exempt positions.

Included in these more than 900 “conversions” were approximately 465 positions in DHHS. In other words, it appears that all of the new exempt positions in DHHS created under Governor

McCrory, including positions that were not subject to a competitive hiring process, were converted to permanent, non-exempt positions after the enactment of House Bill 17. (Cobb Aff. ¶ 19.)

Similarly, in 2013 and 2014, the number of exempt positions in the Department of

Environmental Quality went from approximately 20 to more than 140. Then, following the enactment of House Bill 17, Governor McCrory converted approximately 78 exempt positions back to permanent, non-exempt positions. (Cobb Aff. ¶ 20.)

If House Bill 17 is upheld, many of the employees “converted” from exempt to non-exempt in the final days of the McCrory administration will have “career” status, even if they had never worked in a non-exempt position before January 1, 2017. (Cobb Aff. ¶¶ 16-20.)

E. The Exempt Positions Amendments violate the separation of powers.

Numerous courts, including the United States Supreme Court, have recognized that governors have a right to fill key policymaking and managerial positions with appointees who share their views and priorities. As the North Carolina Supreme Court held in 2016, citing the

United States Supreme Court’s seminal opinion on exempt positions:

To ensure the execution of policies on which the winning candidate campaigned, the [United States Supreme] Court held that employees in policymaking positions legally can be dismissed on grounds relating to political loyalty “to the end that representative government not be undercut by tactics obstructing the implementation of policies of [a] new administration, policies presumably sanctioned by the electorate.”

Young v. Bailey, 368 N.C. 665, 670-71, 781 S.E.2d 277, 281 (2016) (quoting Elrod v. Burns, 427

U.S. 347, 367 (1976)). See also Branti v. Finkel, 445 U.S. 507, 518 (1980) (“[I]t is equally clear

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74/384 that the Governor of a State may appropriately believe that the official duties of various assistants

who help him write speeches, explain his views to the press, or communicate with the legislature

cannot be performed effectively unless those persons share his political beliefs and party

commitments.”).

Indeed, this principle was recognized by the founders of the United States when they

successfully argued in opposition to the assertion that the United States Constitution should be interpreted to require senatorial consent for the removal of political appointees:

Mr. [James] Madison and his associates pointed out with great force the unreasonable character of the view that the Convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officer, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy, might make his taking care that the laws be faithfully executed most difficult or impossible.

Myers, 272 U.S. at 131.

In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), the Fourth Circuit applied Elrod and

Branti to Chapter 126 and held that “patronage dismissals of government officials holding policymaking positions were justified ‘to ensure that policies which the electorate has sanctioned are effectively upheld.’” Id. at 140 (quoting Elrod, 427 U.S. at 372).

The Exempt Positions Amendments are an overt attempt by the General Assembly to

“undercut [the Governor’s authority] by tactics obstructing the implementation of policies of the new administration [that were] sanctioned by the electorate.” Elrod, 427 U.S. at 367. As the Court noted in McCrory, “the degree of control that the Governor has over [executive branch appointees] depends on his ability to [1] appoint the [members], [2] to supervise their day-to-day activities, and [3] to remove them from office.” 368 N.C. at 646, 781 S.E.2d at 256 (emphases added).

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75/384 Applying the McCrory v. Berger analysis, not only has the General Assembly effectively appointed more than 900 employees in the heart of the executive branch, it has also sharply limited the Governor’s ability to remove them.

The formerly “exempt” employees the General Assembly seeks to embed (i.e., appoint) within key positions in the Cooper administration materially interfere with the Governor’s constitutional duty to see that the laws are faithfully executed. The Governor therefore has the constitutional right to retain, or not retain, the exempt policymaking and managerial positions filled by his predecessor. In contrast, the General Assembly has no constitutional authority to hire executive branch personnel. Its constitutional duty is limited to enacting the laws that create offices, while the executive’s duty is to fill those offices.

The Court also based its holding in McCrory in part on the fact that the challenged law only allowed the Governor to remove commission members “for cause.” Id. at 646, 781 S.E.2d at

257. The Court held that this “sharply constrains the Governor’s power to remove members.” Id.

The Exempt Positions Amendments have the very same effect, except that they would apply the

“for cause” removal standard to more than 900 executive branch employees who had been designated as “exempt” by the prior administration and give those employees due process rights that the commission members in McCrory did not enjoy.

Put another way, the General Assembly has effectively appointed more than 900 executive branch employees (including nearly 500 in DHHS), and, by affording most of them “career” status, has mandated that the Governor may only remove them “for cause” and after dueprocess.

Under McCrory v. Berger, such an encroachment violates the North Carolina Constitution because it leaves the Governor “with little control over the views and priorities of the officers” holding key decision-making positions in the executive branch. 368 N.C. at 647, 781 S.E.2d at

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76/384 257. “As a result, the Governor cannot take care that the laws are faithfully executed in that area.

The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.” Id.

V. The severability provisions of the challenged acts do not save them from a finding of unconstitutionality.

Assuming arguendo that some portions of the House Bill 17 and Senate Bill 4 do not violate separation of powers, the complex and intertwined shift in powers away from the Governor does not permit this Court to selectively enjoin portions of the challenged Parts of the acts without improperly sitting in a legislative capacity and rewriting the challenged provisions. See Parker v.

Stewart, 29 N.C. App. 747, 749, 225 S.E.2d 632, 633-34 (1976) (“Where a part of a statute is invalid, the remainder, if valid, will be enforced, provided it is complete in itself and capable of being executed in accordance with the apparent legislative intent; but if the void clause cannot be rejected without causing the statute to enact what the Legislature did not intend, the whole of it must fall....”(emphasisadded)(quoting Commissioners v. Boring, 175 N.C. 105, 95 S.E. 43

(1918))).

City of Roanoke Rapids v. Peedin, 124 N.C. App. 578, 478 S.E.2d 528 (1996), is instructive. In that case, the Halifax County Board of Health enacted regulations restricting smoking in public. The Court of Appeals invalidated those regulations because the Board of

Health had exceeded its authority by considering—in addition to health—matters of “economic hardship and difficulty of enforcement.” Id. at 589, 478 S.E.2d at 535. Even though the Board of

Health’s regulations included a severability clause, the Court of Appeals struck down the entirety of the regulations, explaining that “it would be pragmatically impossible, as well as jurisprudentially unsound, for us to attempt to identify and excise particular provisions while leaving the remainder of the [administrative agency’s] antismoking code intact . . . .” Id. at 591,

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77/384 478 S.E.2d at 535 (citations and internal quotation marks omitted). In other words, any attempt to rewrite the regulations to ensure their compliance with the Constitution would require “the judicial branch of government” to act “as part of the legislative branch of government.” Id. (citations and internal quotation marks omitted).

The logic of Peedin applies to the challenged Parts, each of which is part of a complex and coordinated scheme that cannot be partly enjoined without rewriting the entire Part. Accordingly, the whole of the challenged Parts of the Session Laws should be enjoined.

CONCLUSION

For the foregoing reasons, Plaintiff Governor Roy A. Cooper, III requests that this Court grant his Motion for Summary Judgment in its entirety.

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78/384 79/384 80/384 APPENDIX A

The State Board of Elections—and the New State Board if allowed to replace it—is primarily administrative or executive in character. For example, among other executive and policy-making duties, the State Board of Elections:

x Appoints and removes members of county boards of elections, both of which are executive functions. See N.C. Gen. Stat. § 163-22(c) (power of appointment and removal); McCrory, 368 N.C. at 646, 781 S.E.2d at 256 (noting appointment power permits executive to exercise control); Myers v. United States, 272 U.S. 52, 122 (1926) (“[W]hen the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.”).

x Supervises county boards of elections in their implementation of election laws. N.C. Gen. Stat. §§ 163-22(a),(c); see also Burgin v. N.C. State Bd. of Elections, 214 N.C. 140, 145, 198 S.E. 592, 595 (1938) (noting State Board of Elections’s “duty of general supervision” over elections).

x Administers “the statewide voter registration system” and creates guidelines for county boards of education to follow. N.C. Gen. Stat. § 163-82.12.

x Certifies the names of candidates. Id. §§ 163-22(g); 163-108(a).

x Tabulates election returns, declares the results of elections, and certifies those results. Id. §§ 163-22(h); 163-182.15.

x Has the power to “modify the general election law time schedule with regard to ascertaining, declaring, and reporting results.” Id. § 163-104.

x Has the power to extend voting hours. See id. § 163-166.01.

x Enforces requirements for official ballots. Id. § 163-165.4.

x Certifies “the official ballots and voter instructions to be used in every election. ...” Id. § 163-165.3(a).

x Is assigned at least fifteen enumerated powers and duties with respect to campaign finance regulations, including investigating and reporting “to the proper district attorney” violations of such regulations. See id. § 163-278.22 (1) to (15).

x As part of the supervision of county boards, the State Board ensures sufficient technical personnel are available to repair voting equipment. Id. § 163-22(p).

x Assists county boards in litigation. See id. § 163-25.

1 81/384 x Approves the voter registration plans of county boards of education. Id. § 163-82.22 (b). x Approves county board of education plans addressing elderly or disabled voters. Id. § 163- 130. x The State Board may also terminate a local director of elections. See id. § 163-35(b). x Trains county boards of elections. Id. § 163-22(b),(n). x Trains precinct judges. Id. § 163-22(o). x Tests voting machines. Id. § 163-22(o). x Distributes information to the general public regarding election laws and procedures. Id. § 163-22(b). x Investigates allegations of fraud and irregularities. Id. § 163-22(d). x Administers elections by determining the format and contents of forms, pollbooks, certificates, ballots, and other forms used during elections. Id. § 163-22(e),(f). x Distributes registration forms to governmental and private entities, with emphasis on organized voter registration drives. Id. § 163-82.5. x Develops, implements, and maintains “a statewide computerized voter registration system to facilitate voter registration and to provide a central database containing voter registration information for each county.” Id. § 163-82.11.

2

82/384 APPENDIX B This Appendix compares the powers and duties of the Environmental Management Commission (“EMC”), as described in State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), with the powers and duties of the State Board of Elections, as set forth in Chapter 163 of the General Statutes. After reviewing the EMC’s powers and duties, the Wallace Court held: “It is crystal clear to us that the duties of the EMC are administrative or executive in character andhavenorelationtothefunctionofthelegislativebranchofgovernment, which is to make laws.” Id. at 608, 286 S.E.2d at 88 (emphasis added).

Environmental Management Power/Duty State Board of Elections Commission General “[T]o review and have general “The State Board of Elections shall have general supervision over the supervision oversight and supervision over local primaries and elections in the State.” § 163-22. air pollution control programs. . . to have jurisdiction and supervision over “Duties of the State Board of Elections. The State Board of Elections the maintenance and operation of shall...(2)Providesupervisorydirectiontothecounty boards of dams...tohavejurisdictionand electionsasprovidedinthisArticle....(4)Orderandsupervisea supervision over all pollution.” Id. at recount in any ballot item within the jurisdiction of the State Board of 607, 286 S.E.2d at 88. Elections, where necessary to complete the canvass.” § 163-182.17.

Grant “[T]o grant and revoke permits.” Id. “Only voting systems that have been certified by the State Board of permission Elections in accordance with the procedures set forth by the State Board of Elections and subject to the standards set forth in this section and that have not been subsequently decertified shall be permitted for use in elections in this State.” § 163-165.7.

1 83/384 Environmental Management Power/Duty State Board of Elections Commission Investigate “[T]o conduct and direct that Hold “[m]eetings to Investigate Alleged Violations of This Chapter.” § investigations be conducted pursuant 163-20. tocertainstatutes...todirectthe investigation of any killing of fish and “The State Board of Elections shall investigate when necessary or wildlife...todirectthat advisable, the administration of election laws, frauds and irregularities investigations be conducted when inelections...andshallreportviolations[totheproperauthority]for necessary to carry out duties regarding further investigation and prosecution.” § 163-22. capacity use areas.” Id. “[T]hechairmanoftheStateBoardofElections...shallhavepowerto administer oaths, issue subpoenas, summon witnesses, and compel the production of papers, books, records and other evidence.” § 163-23.

“To make investigations to the extent the Board deems necessary with respect to statements filed under the provisions of this Article and with respect to alleged failures to file any statement required under the provisions of this Article.” § 163-278.22.

2

84/384 Environmental Management Power/Duty State Board of Elections Commission Issue orders “[T]o issue special orders pursuant to “If any person shall refuse to obey the lawful commands of the State certain statutes.” Id. at 607, 286 BoardofElections...itmay,byanorderinwriting ...committhe S.E.2d at 88. person so offending to the common jail of the county for a period not exceeding 30 days.” § 163-24.

Stating the “Executive Director shall be responsible for staffing, administration, execution of the Board’s decisions and orders.” § 163- 27.

“The State Board of Elections, in lieu of or in addition to imposing a civil penalty” for violations of campaign contribution and expenditures requirements may “[i]ssue an order requiring the violator cease and desist . . . cease receiving contributions and making expenditures . . . requiringtheviolatortotakeanyremedialaction...requiringthe violator to file any report, statement, or other information as required by this Article or the rules adopted by the Board.” § 163-278.34.

Conduct “[T]o conduct public hearings.” Id. “When called upon to . . . hear sworn alleged violations of this Chapter, hearings the State Board of Elections shall meet and hear the matter in the county in which the violations are alleged to have occurred.” § 163-20.

“[T]he Board shall have the right to hear and act on complaints arising by petition or otherwise, on the failure or neglect of a county board of elections to comply with any part of the election laws imposing duties upon such a board.” § 163-22.

“To require county boards of elections to hold such hearings, make such investigations, and make reports to the State Board as the State Board deems necessary in the administration of this Article.” § 163-278.22.

3

85/384 Environmental Management Power/Duty State Board of Elections Commission Utilize the legal “[I]nstitute actions in superior court.” “After investigation, to report apparent violations by candidates, system Id. political committees, referendum committees, legal expense funds, individuals or persons to the proper district attorney.” § 163-278.22.

“Whenever the [State Board of Elections] has knowledge of or has reason to believe there has been a violation of any section of [Chapter 123, Article 22A], it shall report that fact, together with accompanying details” to the proper district attorney. § 163-278.27. “Upon receipt of such a report from the Board, the appropriate district attorney shall prosecute the individual or persons alleged to have violated a section or sections of this Article.” Id.

Settle/make “[A]gree upon or enter into “In the event any portion of Chapter 163 of the General Statutes or any agreements settlements.” Id. State election law or form of election of any county board of commissioners, local board of education, or city officer is held unconstitutional...orisunenforceablebecauseofobjection...The State Board of Elections shall also be authorized, upon recommendation of the Attorney General, to enter into agreement with the courts in lieu of protracted litigation until such time as the General Assembly convenes.” § 163-22.2. Act in an “[T]o declare an emergency when it “The Executive Director, as chief State elections official, may exercise emergency finds a generalized dangerous emergency powers to conduct an election in a district where the normal condition of water or air pollution schedulefortheelectionisdisruptedby...(1)naturaldisaster[;](2) pursuant to certain statutes.” Id. Extremely inclement weather[; or] (3) An armed conflict.” § 163-27.1.

4

86/384 Environmental Management Power/Duty State Board of Elections Commission Approve or “[T]o approve, disapprove and “The county board of elections shall forward...anyapplication disapprove of approve subject to conditions all submitted for the purpose of preregistration to the State Board of actions and applications for dam construction.” Elections [which] shall notify the appropriate county board of elections applications Id. to verify the qualifications and address of the applicant.” § 163-82.6.

“No voter registration card may be issued by a county board of elections unless the State Board of Elections has approved the format of the card.” § 163-82.8.

Approve certain locations in addition to public libraries where a county may offer voter registration. § 163-82.22.

“The State Board of Elections shall approve a county board's proposed plan” for satellite voting places for the elderly or disabled. § 163-130.

Approve an “independent escrow agent” for “all software that is relevant to functionality, setup, configuration, and operation of the voting system.” § 163-165.9A.

“The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election.” § 163- 182.2.

5

87/384 Environmental Management Power/Duty State Board of Elections Commission Rulemaking “[T]o establish standards and adopt “[T]o make such reasonable rules and regulations with respect to the rules and regulations for air quality conduct of primaries and elections.” § 163-22. standards, emission control standards, and classifications for air contaminant “The State Board of Elections shall promulgate minimum requirements sources...forwaterqualitystandards for the number of pollbooks, voting machines and curbside ballots to be andclassifications...andforthe available at each precinct.” Id. protection of sand dunes.” Id. at 607- 08, 286 S.E.2d at 88. “IntheeventanyportionofChapter163...oranyStateelectionlaw.. . is held unconstitutional or invalid by a State or federal court or is [otherwise]unenforceable...theStateBoardofElectionsshallhave authority to make reasonable interim rules and regulations with respect to the pending primary or election as it deems advisable.” § 163-22.2.

“The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised.” § 163-27.1.

“The State Board of Elections shall promulgate rules for the county boards of elections to follow in hearing appeals for denial of primary or election day applications to register.” § 163-82.6.

“The State Board of Elections shall promulgate rules for the initial counting of official ballots.” § 163-182.2.

“Duties of the State Board of Elections.--The State Board of Elections shall...[p]romulgaterulesasdirectedinthisArticle.”§163-182.17.

“The State Board of Elections shall have responsibility, adequate staff, equipment and facilities, for promulgating all regulations necessary for the enforcement and administration of this Article and to prevent the circumvention of the provisions of this Article.” § 163-278.21.

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88/384 Separator Page

Defendants' Brief

89/384 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 16 CVS 15636

ROY A. COOPER, III, in his capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA

Plaintiff, vs. DEFENDANTS’ PHILIP E. BERGER, in his official BRIEF IN SUPPORT OF capacity as PRESIDENT PRO MOTION TO DISMISS AND TEMPORE OF THE NORTH MOTION FOR SUMMARY CAROLINA SENATE; TIMOTHY K. JUDGMENT MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,

Defendants.

- 1 -

90/384 Table of Contents The General Assembly, as the Branch of North Carolina Government that Acts Most Directly on Behalf of the People, has Plenary Authority ...... 6 Our State’s Constitutional History Favors the Plenary Power of The General Assembly Over that of A Powerful Governor ...... 7 Correctly Interpreting Our State Constitution is to Give Effect to the Plenary Power of the General Assembly, not the Governor ...... 20 Interpreting State v. Berger as authorizing the type of “control” Plaintiff seeks unmoors that decision from the narrow issue before it ...... 25 Part I of Session Law 2016-125 is Constitutional ...... 28 A. Reorganizing the Structure of the Bipartisan Board is Constitutionally Within the Governor’s Power, Thereby Removing It From This Court’s Purview ...... 29 B. The Board of Elections Is Not A Purely-Administrative Agency ...... 34 C. The Makeup of the Bipartisan Board Does Not Violate the Constitution ...... 38

D. The Quorum And Majority Vote Requirements Established By Part I Do Not Render The Bipartisan Board Unconstitutional ...... 40

E. Setting July 1 As The Date For The Governor’s Appointees To The Bipartisan Board To Take Office Is Not Unconstitutional...... 45

F. The Rotation Of The Chair Of The Bipartisan Board Does Not Invalidate The Law 47

Part III Of Session Law 2016-126 Is Constitutional ...... 50 A. Defendants Have The Power To Confirm Statutory Appointees ...... 50

B. Part III Does Not Violate Separation of Powers ...... 54

Plaintiff’s Claim That §§ 7, 8, & 33 of Part I of Session Law 2016-126 Violate The North Carolina Constitution Fails As A Matter of Law ...... 58 A. Overview of Statutory and Constitutional Framework ...... 59

B. Plaintiff’s Separation of Powers Argument Fails as a Matter of Law ...... 60

C. Plaintiff’s Exclusive Emoluments Claim Fails as a Matter of Law because Plaintiff Lacks Standing and the Challenged Emoluments Serve a Public Purpose ...... 66

- 2 -

91/384 INTRODUCTION

COME NOW Defendants Philip E. Berger, in his official capacity as

President Pro Tempore of the North Carolina Senate and Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives

(collectively, the “Defendants”) and hereby serve this Brief in Support of their

Motion to Dismiss1 and Motion for Summary Judgment.

Plaintiff challenges multiple aspects of Session Laws 2016-125 and 2016-126

(collectively, the “Session Laws”) as violations by the General Assembly of the separation of powers within state government. But, it is Plaintiff who seeks to expand the North Carolina Supreme Court’s decision in State v. Berger to give the

Office of the Governor what the people of North Carolina have time and time again rejected as amendments to our state’s Constitution: sole gubernatorial control over every administrative agency. This Court should not rewrite the balance of power and give plenary power to the Governor.

1 This Brief supports Defendants’ Motion to Dismiss filed on 31 January 2017. Plaintiff’s claims related to the creation of the Bipartisan State Board of Elections and Ethics Enforcement in Part I of Session Law 2016-125; the advice and consent provision in Part III of Session Law 2016-126; and the amendments to exempt positions in Sections 7, 8, and 33 of Part I of Session Law 2016-126 (to the extent Plaintiff relies on the Exclusive Privileges Clause of the North Carolina Constitution) should be dismissed pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure. - 3 -

92/384 FACTUAL AND PROCEDURAL BACKGROUND

On 16 December 2016, Session Law 2016-125 was signed into law by

Governor Pat McCrory. Plaintiff challenges the constitutionality of Part I2 of

Session Law 2016-125, which reorganizes two statutorily-created bodies, the State

Board of Elections (the “Board of Elections”) and the State Ethics Commission (the

“Ethics Commission”), into one independent, regulatory and quasi-judicial body, the

Bipartisan State Board of Elections and Ethics Enforcement (the “Bipartisan

Board”).

On 19 December 2016, Session Law 2016-126 was signed into law by

Governor McCrory. Plaintiff challenges the constitutionality of the following portions of Session Law 2016-126:

x Part III, which amended N.C. Gen. Stat. § 143B-9(a) by establishing statutory authority for the North Carolina Senate to confirm the Governor’s appointments for the heads of various state agencies; and

x Portions of Sections 7, 8, and 33 of Part I, which converted the designation of exempt employees to career State employees.

On 30 December 2016, Plaintiff, who was, at that time, the Governor-elect,

filed his Complaint alleging that the creation of the Bipartisan Board in Part I of

Session Law 2016-125 violates the State Constitution. That same day, Plaintiff

moved for and was granted a temporary restraining order staying Part I by the

Honorable Donald W. Stephens.

2 Plaintiff has voluntarily dismissed his claim related to Part V of Session Law 2016-125.

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93/384 By Order of the Chief Justice of the North Carolina Supreme Court dated 3

January 2017, a three-judge panel was appointed to hear the constitutional challenge raised in Plaintiff’s Complaint. On 5 January 2017, Plaintiff, who was sworn in as Governor on 1 January 2017, moved for a preliminary injunction to stay implementation of Part I. On 6 January 2017, the three-judge panel (the “Court”) entered its Order Allowing Motion for Preliminary Injunction and enjoined Parts I and VI3 of Session Law 2016-125 from going into effect.

On 10 January 2017, Plaintiff filed his Amended Complaint, adding a number of additional claims and legal theories related to the above-referenced portions of Session Law 2016-126. On 23 January 2017, Defendants filed their

Notice of Appeal and moved the Court to reconsider its Order and to stay its effect, thus allowing Parts I and VI of the Session Law to take effect pending final determination of the merits of this case. The Court denied that motion on 2

February 2017, and Defendants filed their Petition for Writ of Supersedeas and

Motion for Temporary Stay with the North Carolina Court of Appeals on 7 February

2017.4

On 31 January 2017, Defendants filed their Motion to Dismiss and Answer to

Amended Complaint.

3 Section VI of Session Law 2016-125 addresses severability. “The inclusion of a severability clause within legislation will be interpreted as a clear statement of legislative intent to strike an unconstitutional provision and to allow the balance to be enforced independently.” Pope v. Easley, 345 N.C. 544, 548, 556 S.E.2d 265, 268 (2001). 4 The Court of Appeals granted a temporary stay of the Order on Preliminary Injunction while it considers the Writ of Supersedeas. Plaintiff responded by seeking relief from the North Carolina Supreme Court, which was recently granted. - 5 -

94/384 On 6 February 2017, Plaintiff moved for a temporary restraining order enjoining Part III of Session Law 2016-126, and, following a telephonic hearing on 7

February 2017, the Court entered its Temporary Restraining Order. Thereafter,

Plaintiff sought a preliminary injunction of Part III, which motion was heard by the

Court on 10 February 2017. On 13 February 2017 this Court denied that motion.

On 14 February 2017, Defendants filed their Motion for Summary Judgment.

ARGUMENT

I. THE GENERAL ASSEMBLY, AS THE BRANCH OF NORTH CAROLINA GOVERNMENT THAT ACTS MOST DIRECTLY ON BEHALF OF THE PEOPLE, HAS PLENARY AUTHORITY.

“Our State Constitution is in no matter a grant of power, and as such, all power which is not limited by the Constitution inheres in the people, and an act of a

State legislature is legal when the Constitution contains no prohibition against it[.]”

Town of Boone v. State, ___ N.C. ___, 794 S.E.2d 710 (2016); see also State ex rel.

Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473, 478 (1989) (“All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution.”) (citations omitted). “Nowhere was it stated that the three powers or branches had to be equal. In fact, although the balance occasionally shifted, the preponderant power has always rested with the legislature.” John V. Orth, The North Carolina State Constitution, 42 (1995).5

5 The North Carolina Supreme Court has cited Professor Orth’s work and described him as a “highly respected state constitutional scholar.” Stephenson v. Bartlett, 355 N.C. 354, 367, 562 S.E.2d 377, 387 (2002). - 6 -

95/384 A. Our State’s Constitutional History Favors the Plenary Power of The General Assembly Over that of A Powerful Governor.

“To determine whether the [alleged constitutional] violation is plain and clear, we look to the text of the constitution, the historical context in which the people of North Carolina adopted the applicable constitutional provision, and our precedents.” State v. Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016).

In our State’s first constitution of 1776, the power of the General Assembly was paramount, despite acknowledging separation of powers. Our first

Constitution, “like other new states’ constitutions, limited the executive power because of colonial aversion to the Crown and its magistrates.” Allen, Arch T., III,

A Study in Separation of Powers: Executive Power in North Carolina, 77 N.C.L. Rev.

2049, 2053 (September 1999). In fact, “[e]ven the separateness of the powers could be questioned.” John V. Orth, The North Carolina State Constitution, p. 42 (1995).

Writing in the Federalist (No. 47) in 1788, James Madison observed:

The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.

Id. (quoting 1776 Constitution of North Carolina) (emphasis added).6

“The concept of a ‘unitary’ executive was central to Madison’s advocacy of separation of powers.” Executive Power, 77 N.C.L. Rev. at 2051-2052. “Madison’s

6 It was not until the 1971 Constitution that “ought” was changed to “shall” along with other revisions that were considered non-substantive. State v. Berger, 368 N.C. at 660, 781 S.E.2d at 265 (Newby, J., dissenting). - 7 -

96/384 views prevailed in the structure of the federal government, in which the executive power is vested in an elected president, who has the power to appoint other executive officers.” Id. “North Carolina, however, has never applied completely the concept of a unitary executive.” Id. (emphasis added).

While it is clear that North Carolina’s Founding Fathers were committed to the principle of separation of powers, it is equally clear from a reading of the entire text of the constitution of 1776 that they failed to discern any violation of that principle in the predominance of the legislature over the other branches of government.

John V. Orth, “Forever Separate And Distinct”: Separation Of Powers In North

Carolina., 62 N.C.L. Rev. 1, 6 (October 1983). As Professor Orth notes, “the dictum

[of Judge Samuel Ashe in Bayard v. Singleton, 1 N.C. 5, 7 (1787) (which established judicial review in North Carolina)] shows that a contemporary judge believed it embodied the principle of separation of powers despite the predominance of the legislature.” Orth, Separate and Distinct, supra, at 8.

The Constitution was amended in 1835 in response to dissatisfaction with the legislative representation system and persistent reform efforts; the changes included a provision for the popular election of the governor for a two-year term.

Allen, Executive Power, supra, at 2054.

Approximately 30 years later, the State’s second Constitution gave even more power to the executive branch:

The Constitution of 1868 strengthened the executive by providing for popular election of the governor to a four- year term with expanded powers. It also provided for popular election of the state’s lieutenant governor, secretary of state, auditor, treasurer, superintendent of

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97/384 public works, superintendent of public instruction, and attorney general.

Id. at 2056-57; see also John L. Sanders, Our Constitutions: An Historical

Perspective, p. 2, available at https://www.sosnc.gov/Publications/ncconst.aspx,

(“governor’s powers were increased significantly”). “Significantly, a new appointments clause enhanced the separation of powers by prescribing gubernatorial appointment, with the advice and consent of the Senate, of ‘all officers whose offices are established by this Constitution, or which shall be created by law, and whose appointments are not otherwise provided for.’” Id. (quoting N.C. Const. of 1868, art. III, §10). As cited in Nichols v. McKee, 68 N.C. 429, 433 (1873), Article

III, § 10 of the 1868 Constitution prohibited the General Assembly from appointing anyone to any office:

The Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, appoint all officers whose offices are established by this Constitution, or, which shall be created by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the General Assembly.

Thus, from 1776 to 1868 the strength of the executive branch grew significantly. Under the 1868 Constitution, most of the executive branch was elected by the people, and the Governor had exclusive appointment rights. The separation of powers analysis under this Constitution more resembled the federal system, save for the strength of the executive branch being divided among separately elected officials. See Buckley v. Valeo, 424 U.S. 1, 120-30 (1976)

(discussing United States v. Germaine, 99 U.S. 508 (1879), which held that Congress

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98/384 lacked the authority to appoint inferior officers of the U.S. government under the

United States Constitution, as authority for denying congressional appointment of members to the Federal Elections Commission).

This gubernatorial power was rather short-lived, and, when political power in the General Assembly changed hands, power was returned to the General

Assembly:

The principal aim of the 1876 amendments7 was to restore to the General Assembly more of the power it had lost. The elective officers created in 1868 had lessened legislative control over the executive and judicial branches; the General Assembly now reclaimed the power to provide for legislative appointments to executive offices created by statute.

Orth, N.C. Constitution, supra, p. 16; Sanders, supra, p. 3 (noting the same).

Appointment power was restored to the General Assembly by the deletion of the phrase prohibiting the General Assembly from appointments. The 1876 amendment changed Article 3, § 10 to read: “The Governor shall nominate, and by and with the advice and consent of a majority of the Senators-elect, appoint all officers, whose offices are established by this Constitution, and whose appointments are not otherwise provided for.”

In Cunningham v. Sprinkle, 124 N.C. 638, 33 S.E. 138, 138 (1899), the North

Carolina Supreme Court interpreted the 1876 amendments to the appointments clause and to an amendment that created an Agriculture Board. Officials elected by

7 “[T]he voters on November 7, 1876, approved by a vote of 120,159 to 106,554 - a set of 30 amendments affecting 36 sections of the state constitution.” Sanders, supra, p. 3. - 10 -

99/384 the General Assembly were refused admission to meetings of the Board by members appointed by the Governor. Id. at 639, 33 S.E. at 138. The gubernatorial appointees argued that because the Agriculture Board was authorized by constitutional amendment, only the Governor could appoint members to the Board.

Id. They also argued, much like Plaintiff does in the current matter, “that, if it is an office created by the General Assembly the power of appointment is an executive function, and that it cannot be exercised by the General Assembly.” Id. at 640, 33

S.E.2d at 138 (emphasis in original). The Court rejected the argument that the

Board was a constitutional office and held “that members of the Board of

Agriculture are not constitutional officers; and that being of legislative creation, they are equally within the power of legislative appointment.” Cunningham, 124

N.C. at 641, 33 S.E. at 139. The Court rejected the proposition that appointment to an office was an inherently executive act. Id. In reaching this decision, the

Cunningham court relied on Trs. of Univ. of N.C. v. McIver, 72 N.C. 76, 85 (1875), which was decided under the Constitution of 1868 when the Governor’s ability to appoint was much stronger, and which held:

Now the election of officers is not an executive, legislative or judicial power, but only a mode of filling the offices created by law, whether they belong to one department or the other. The election of a judge is not a judicial power, nor the election of a Governor an executive power; for if so, all elections by the people would be an infringement upon the executive department. The true test is, where does the Constitution lodge the power of electing the various public agents of the Government, and it is conclusive upon the judicial mind, whether this power is found to be lodged in the one or the other branch, or

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100/384 concurrently in all these departments into which the supreme authority of the State is divided.

McIver, 72 N.C. 76, 85; see also Cunningham, 124 N.C. at 641, 33 S.E. at 139.

The Cunningham Court, fresh off new constitutional amendments to the second constitution of the state, which still included a separation of powers clause, rejected the theory that appointment power violated the separation of powers when exercised by another branch of government.

This view of that learned Court was strictly in accordance with the constitutional history of this State. The Constitution of 1776 in sec. 4, Declaration of Rights, declared that: ‘The legislative, executive and supreme judicial powers of government ought to be forever separate and distinct from each other.’ Yet Articles XIII, XIV and XV HN7 proved that the Legislature should, by joint ballot, elect the Governor, and appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, Attorney-General, Generals and field officers in the militia, and all officers of the regular army of this State. The Governor continued to be elected by the Legislature until the Convention of 1835, and the Judges until the Constitution of 1868. It is thus clear that the power of appointment was not regarded as exclusively an executive prerogative.

Cunningham, 124 N.C. at 642-43, 33 S.E. at139.

In Salisbury v. Board of Directors of State Hospital, 167 N.C. 223, 83 S.E. 354

(1914), the advice and consent of administrative directors was determined to be constitutional. The North Carolina Supreme Court compared the appointments clause of 1875 to the one of 1868 in determining whether a statute subjecting the

Governor’s appointment of director of the State hospital to advice and consent of the

Senate was constitutional.

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101/384 It will thus be noted that the inhibition on the legislative power to appoint to office is removed and the inherent power of the Governor to appoint is restricted to constitutional offices and where the Constitution itself so provides. Accordingly, it has since been the accepted view that, in all offices created by statute, including these directorates and others of like nature, the power of appointment, either original or to fill vacancies, is subject to legislative provision as expressed in a valid enactment.

Salisbury v. Bd. of Dirs., 167 N.C. 223, 226, 83 S.E. 354, 355 (1914).

Cunningham and Salisbury confirm that, in North Carolina, the Governor’s ability to appoint after 1875 was constrained by the General Assembly’s power to appoint and that the power to appoint in the hands of the General Assembly did not violate the separation of powers clause. In contrast, it is doubtful that the same could be said of the federal Constitution in 1875. See, e.g., Allen, Executive Power, supra, at 2070 (“Generally, American courts have recognized that the power of appointment is an executive function and that legislative attempts to usurp that power violate the separation-of-powers doctrine.”). This fundamental difference makes reliance on separation-of-powers analysis under the Constitution of the

United States or constitutions of other states (without examining those state’s constitutions) a poor gauge of adjudicating North Carolina’s different appointment power for statutory officers. See John V. Orth, “Forever Separate And Distinct”:

Separation Of Powers In North Carolina., 62 N.C.L. Rev. 1, 16 (October 1983) (“The persuasiveness of the state decisions is weakened, however, by the dissimilarity of the various constitutions.”).

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102/384 History also demonstrates that, at least for the citizens of North Carolina, the “amendments framed by the Convention of 1875 seem to have satisfied most of the need for constitutional change for a generation.” Sanders, supra, at p. 3; see also Orth, NC Constitutional History, supra, at p. 17 (“The amendments of 1876 brought a certain quietude to North Carolina constitutional history.”). While the people may have felt some satisfaction, the same cannot be said of the State’s governors.

“Beginning only one year after the court decided the last of these appointments clause cases, five consecutive governors recommended reform.” Allen,

Executive Power, supra, at 2060.

In 1915 Governor Locke Craig asserted that the governor should have appointment power for all statutory officers; he argued that the governor’s responsibility for his administration required him to have the power to select his subordinates. Governor Bickett, in his inaugural address in 1917, urged enactment of a law providing that all state administrative officers other than the elected Council of State officers be appointed by the governor. Governor Cameron Morrison also advocated such a change and emphasized its importance for gubernatorial accountability. In 1925, his successor, Governor McLean, added, “‘An impression exists in some quarters that the Governor controls the administration of State government, but … this idea is erroneous … The whole effort seems to have been to create diffusion and lack of responsibility, rather than executive authority and accountability.’” To enhance executive authority and accountability, Governor O. Max Gardner initiated a proposed ‘short ballot’ constitutional amendment. Under his short ballot proposal, fewer executive officers would be elected.

Id.

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103/384 The 1929 General Assembly rejected Governor Gardner’s proposal, preferring to maintain the status quo of electing eight executive officers other than the governor and lieutenant governor. Allen, Executive Power, supra, at 2061.

Following a study commission during the Great Depression, which noted that the

North Carolina governor’s ability to respond to the needs of state government was too diffuse and would benefit from “the power of appointment and removal over all of the heads of the administrative departments,” Governor Gardner pleaded with the General Assembly to permit the short ballot - which would give the Governor more appointment power and the people fewer elected officers. See id. at p. 2062.

These changes to the Constitution, however, were again rejected in 1931. Id.

In 1949, a “minor” constitutional amendment “transferred the governor’s power to assign judges to the Chief Justice of the Supreme Court and his parole power to a Board of Paroles.” Orth, N.C. Constitution, supra, p. 19; Sanders, supra, p. 4. During this period the Governor was also denied the veto power. Id.

Nonetheless, as administrative agencies began to mushroom throughout government, appointment rights were given to the Governor by statute. Allen,

Executive Power, supra, 2062-63. Some appointments were subject to advice and consent, others were balanced with legislative appointments. Id.

In the 1950s and 1960s, the call from governors to achieve greater ability to execute the laws faithfully resumed with Governors Luther Hodges and Terry

Sanford. Id. at 2065. While other states and model state constitutions gave more power to governors, North Carolina did not. Id.

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104/384 In 1968, the times of change caught up with North Carolina, but increased gubernatorial power was not part of the change. The North Carolina Constitution of 1868, amended heavily in 1875, had been continually amended “in response to particular problems experienced or anticipated.” Sanders, supra, at p. 6. “Obsolete and invalid provisions cluttered the constitution and misled unwary readers.

Moreover, in the absence of a comprehensive reappraisal, there had been no recent occasion to reconsider constitutional provisions that, while obsolete, were not frustrating or unpopular enough to provoke curative amendments.” Id.

In 1968, Governor Dan K. Moore set up the North Carolina State

Constitution Study Commission, which was a joint agency of the North Carolina

State Bar and the North Carolina Bar Association and which consisted of 15 attorneys and 10 laypersons. Sanders, supra, p. 6. The Commission was particularly well aware of prior governors’ calls to unify the executive branch; in fact, the subcommittee on Executive Power was chaired by then-former Governor

Hodges. Allen, Executive Power, supra, at 2067. That subcommittee “recommended a short ballot amendment, administrative reorganization, and gubernatorial appointment under general constitutional authority of all other heads of administrative departments and agencies.” Id. at 2067, n.122. These suggestions were deemed “controversial” and set out as independent amendments apart from general constitutional revisions. See Sanders, supra, p. 7; Allen, Executive Power, supra, 2067-68. All of Governor Hodges’ subcommittee recommendations regarding strengthening the unitary nature of the governor were rejected in the General

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105/384 Assembly; only the constitutional amendment regarding executive reorganization

survived. Allen, Executive Power, supra, 2068; Sanders, supra, p. 7. The other,

more general constitutional revisionary amendments passed. Sanders, supra, p. 7.

Accordingly, purported grants of power to the legislature in prior constitutions were

deleted, consistent with our state’s jurisprudence interpreting the Constitution (i.e., that the Constitution is not a grant of power), and powers of the executive were pulled into one section for better organization. See id.

In 1987, Republican Governor James G. Martin challenged the

Democratically-controlled General Assembly’s passage of a statute granting to the

Chief Justice of the Supreme Court the power to appoint the director of the Office of

Administrative Hearing. In State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d

783 (1987), the Chief Justice recused himself, and the Court split three ways on whether the General Assembly could statutorily grant this power. “Governor

Martin challenged the appointment provisions of the APA amendments as violations of the doctrine of separation of powers without success, garnering only one limited dissenting opinion on that basis. The Governor’s separate challenge under the appointments clause also failed[.]” Allen, Executive Power, supra, at

2080; Orth, N.C. Constitution, supra, p. 43 (“a statute authorizing the chief justice of the North Carolina Supreme Court to appoint the director of the [OAH] has been upheld, a divided court ruling either that the legislature is empowered to provide for all appointments not spelled out in the constitution (plurality opinion) or that agency in question is within the judicial branch.”). “The Melott three-justice

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106/384 plurality opinion, the two-justice concurring opinion, and the single-justice dissenting opinion all rejected the Governor’s appointments clause challenge [that non-gubernatorial appointments to statutory positions were unconstitutional].”

Allen, Executive Power, supra, at 2900-91. “As a result of Martin v. Melott, however, the appointments clause now lies dormant, virtually meaningless, and the

General Assembly, not the governor, constitutionally controls the appointment of state statutory officers.” Id. at 2095.

Thirty years later, the State v. Berger Court came to the same conclusion:

The Governor’s power to appoint officers under the [appointments] clause thus continues to extend only to constitutional officers. As a result the appointments clause means the same thing now that it did in 1876. It authorizes the Governor to appoint all constitutional officers whose appointments are not otherwise provided for by the constitution. It follows that appointments clause does not prohibit the General Assembly from appointing statutory officers to administrative commissions.

Berger, 368 N.C. at 644, 781 S.E.2d at 255.

For nearly 140 years since the constitutional amendments of 1876, the office of the Governor has tried to regain greater appointment powers, either through arguments about faithful execution of the laws or separation of powers, and, each time, the Governor has been rebuffed by both the people of North Carolina

(rejecting proposed constitutional amendment) and the courts (interpreting the

Constitution to limit the Governor’s appointment power).

While subsequent amendments have permitted gubernatorial succession and veto, the governor still shares some executive power with the other elected

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107/384 Council of State members. Until a short ballot amendment eliminates that fragmentation, and until the governor is empowered to appoint statutory officers serving as subordinates in the executive department, North Carolina will not have a unitary executive. Meanwhile, the North Carolina Constitution’s proclamation of separation of powers will continue to exaggerate its actual application.

Allen, Executive Power, supra, 2069.

The lack of unitary executive branch with the freedom of unfettered appointments earned North Carolina’s governor the title of third weakest governor in the country according to a North Carolina Insight Study in March 1990:

To those who sit in the N.C. General Assembly, there is no more powerful political creature than the governor of North Carolina. But to the official who sits in the State Capitol two blocks south of the North Carolina Legislative Building, the office of the governor isn’t strong enough to deal with the problems of the state - or even to deal effectively with the 170 members of the General Assembly. In fact, the record shows that North Carolina’s governor is among the three weakest in the nation in terms of formal, institutional powers. Only the governor’s personal political skills and his ability to capitalize on informal powers available to him partially compensate for the lack of more formal powers and inherent strength.

Thad L. Beyle, The Powers of the Governor in North Carolina: Where the Weak Grow

Strong*--Except for the Governor, N.C. Insight, p. 27 (March 1990) (“*” in original title).

Plaintiff, like many Governors before him, continues to argue that the Office of the Governor needs less legislative interference and more power to faithfully execute the laws. Relying on State v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016),

Plaintiff argues that he has plenary authority over executive functions and that

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108/384 these Session Laws wrongfully intrude on the inherit power of the Governor.

Plaintiff is wrong.

B. Correctly Interpreting Our State Constitution is to Give Effect to the Plenary Power of the General Assembly, not the Governor.

While the judicial branch has the ability, authority, and obligation to pass judgment on the constitutionality of a law, North Carolina courts have cautioned that such a review should be “the result of the most careful, cautious, and anxious deliberation” of the judicial branch, and that great deference is to be given to the

General Assembly. Hoke v. Henderson, 15 N.C. (4 Dev.) 1, 8 (1833), overruled in part on other grounds by Mial v. Ellington, 134 N.C. 131, 162, 46 S.E. 961, 971

(1903).

Speaking for the Supreme Court, Justice Mitchell described the duty of judicial review of the Constitution:

Our acceptance of our duty to exercise the power of judicial review under the Constitution of North Carolina, tempered by our recognition of every reasonable presumption that the legislature as the lawmaking agent of the people has not violated the people’s Constitution, has led this Court in more recent generations to accept certain principles of state constitutional construction which are now well established. For example, it is firmly established that our State Constitution is not a grant of power.

State ex rel. Martin v. Preston, 325 N.C. at 448–49, 385 S.E.2d at 478 (1989) (citing

McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961)).

Our Constitution, as has been so frequently pointed out, is a constitution of limitations, where powers not surrendered expressly or by necessary implication are

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109/384 reserved to the people, to be exercised through their representatives in the General Assembly. An attempt by the Legislature to assert those powers must be treated liberally to effectuate its purpose. No matter from what source the power may be derived, the Court, by precedent, at least, is not permitted to declare an Act of the General Assembly void where there is reasonable doubt.

Wells v. Hous. Auth. of City of Wilmington, 213 N.C. 744, 197 S.E. 693, 696 (1938).

“Thus when a question arises as to whether or not the General Assembly possesses the power to enact a proposed measure, the presumption is that it does have the power unless in the state constitution itself or in the federal constitution some denial of that power can be found.” Report of the North Carolina State

Constitution Study Commission 1968, p. 2 (1968).8

It is essential to keep this point in mind in interpreting state constitutions, for what may appear in form to be a grant of authority to the General Assembly to act on a particular matter normally is in legal effect a limitation, not a grant. For example, Art. V, § 3, of the State Constitution states that “The General Assembly may also tax trades, professions, franchises, and incomes, provided the rate of tax on incomes shall not in any case exceed ten percent (10%) . . . .” This is not the source of the General Assembly’s power to tax income; it levied an income tax under its general legislative authority long before the constitution mentioned the matter. The provision above quoted is a limitation on the rate of tax on incomes to a maximum of ten per cent. To repeal that provision would not take away the power of the General Assembly to levy an income tax; it would instead take away the top limit on the rate.

8 The North Carolina Supreme Court has relied on the Commission’s Report when analyzing constitutional questions. See, e.g., id.; Sneed v. Greensboro City Bd. of Ed., 299 N.C. 609, 616, 264 S.E.2d 106, 112 (1980). - 21 -

110/384 Id. (emphasis in original). Therefore, the presumption of constitutionality regarding an act of the General Assembly is not just a standard of review per se, but grows from the fact that the General Assembly has plenary power.

In reviewing legislation, the North Carolina Supreme Court “reviews acts of the state legislature with great deference; a statute cannot be declared unconstitutional under the State Constitution unless that Constitution clearly prohibits the statute.” . . . “[A] statute 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.”

Crump v. Snead, 134 N.C. App. 353, 355, 517 S.E.2d 384, 386 (1999) (citations omitted) (emphasis added). Our appellate courts have recognized that, in considering the constitutionality of an act of the General Assembly, they look to the

Constitution to articulate not what the General Assembly can do but what it cannot do. In other words, the courts look for limitations on the General Assembly’s authority.

The Constitution of North Carolina is not a grant of power; rather, the power remains with the people and is exercised through the General Assembly, which functions as the arm of the electorate. An act of the people’s elected representatives is thus an act of the people and is presumed valid unless it conflicts with the Constitution.

Pope v. Easley, 354 N.C. at 546, 556 S.E.2d at 267 (emphasis in original).9 Relying on these principles, the North Carolina State Constitution Study Commission noted:

9 And, to be sure, the inherent or plenary power of the General Assembly is not the same for the Governor. Because “power remains with the people and is exercised through the General Assembly,” gubernatorial duties within our Constitution are - 22 -

111/384 From this it follows that in drafting or amending state constitutions, it is desirable to avoid expressions that purport to grant authority to the General Assembly, since they lead at best to confusion and at worst to a serious misconception of the function of a state constitution and especially of the authority of the legislature.

Report of the North Carolina State Constitution Study Commission 1968, p. 2

(1968).

Correctly interpreting our state constitution as a limitation on the power of the General Assembly and not a grant to it, is why the 1968 Commission deleted what purported to be grants of power and organized the Constitution into Articles that showcased the grants of authority to the other branches of government, which are limitations on what the people can change through their representatives in the

General Assembly.

The new constitution retained the old fourteen-article organization of its predecessor, but the contents of several articles – notably Articles I, II, III, V, IX, and X – were rearranged into a more logical sequence. Sections were shifted from one article to another to arrange the subject matter more appropriately. Clearly obsolete and erroneous text was deleted, as were provisions essentially legislative in character.

grants of power to the Executive (i.e., limitations on the General Assembly). See, e.g., State v. Blake, 157 N.C. 608, 72 S.E. 1080, 1081 (1911) (“It is further pointed out that under the Constitution of a state the executive and judicial departments are grants of power, whereas the Legislature exercises all power which is not forbidden.”); Goldston v. State, 199 N.C. App. 618, 636, 683 S.E.2d 237, 249 (2009), aff’d, 364 N.C. 416, 700 S.E.2d 223 (2010) (“We hold that the Constitution of North Carolina article III, section 5 is a grant of authority to the Governor, which is limited to escrowing or reducing budgeted expenditures and does not create a power to transfer and spend funds appropriated for one purpose to another purpose without statutory authority.”). - 23 -

112/384 Sanders, supra, p. 7 (emphasis added); see also id. at p. 8 (“The scattered statements of the governor’s duties were collected into one section . . . .”).

As our Court of Appeals has observed, this is why “the burden of proof is on the challenger, and the statute must be upheld unless its unconstitutionality clearly, positively, and unmistakably appears beyond a reasonable doubt or it cannot be upheld on any reasonable ground.” Rowlette v. State, 188 N.C. App. 712,

715, 656 S.E.2d 619, 621 (2008) (citations omitted).

It is also important to consider that the present case involves a facial challenge to the Session Laws. In considering a facial challenge, our Supreme

Court has determined:

An individual challenging the facial constitutionality of a legislative act “must establish that no set of circumstances exists under which the [a]ct would be valid.” The fact that a statute “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.”

State v. Bryant, 359 N.C. 554, 564, 614 S.E.2d 479, 486 (2005) (citations omitted).

Our constitutional history demonstrates a path that, but for a few years, evinces the people’s choice and the Court’s interpretation to embrace a strong

General Assembly over a more powerful Governor. The separation of powers clause has to be interpreted in light of the fact that the same clause that existed in 1776 exists today. In 1776, the Governor was appointed by the General Assembly; that did not bother the framers. The amendments in 1875 removed the prohibition against the General Assembly appointing statutory officers; the separation of powers clause was not likewise adjusted. The policy reasons for extending more

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113/384 power to the Governor are not new; they have been expressed by governors since

1915. But, the courts do not weigh policy, and our State’s constitutional leaning toward a weaker executive for 140 years does not support judicially rebalancing that scale to deny the General Assembly the right to appoint members of the

Bipartisan Board, advise and consent on principal department heads, or adjust the number of exempt employees.

C. Interpreting State v. Berger as authorizing the type of “control” Plaintiff seeks unmoors that decision from the narrow issue before it.

Plaintiff wants to read State v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016), as a sea change on separation of powers: giving the governor power and control that for the past 140 years has alluded the office when measured against the

General Assembly. That interpretation, however, goes too far; State v. Berger should not and cannot be read as requiring a return to the age of gubernatorial power existing under the 1868 Constitution. When appropriately read in line with our constitutional history, State v. Berger evinces a very narrow ruling.

In State v. Berger, the North Carolina Supreme Court reviewed a session law, enacted without Governor McCrory’s signature or veto, that created several commissions to oversee certain aspects of environmental regulation. 368 N.C. at

636-38, 781 S.E.2d at 250-51. The General Assembly appointed the majority of voting members on each commission. Id. at 636, 781 S.E.2d at 250.

The Berger court described the scope of its inquiry “about the function and structure of state government” as:

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114/384 (1) Does the appointments clause in Article III, Section 5(8) of the state constitution prohibit the General Assembly from appointing statutory officers to administrative commissions?

(2) If not, do the specific appointment provisions challenged in this case violate the separation of powers clause in Article I, Section 6?

Id. As to the first issue, a very broad issue, the Supreme Court held:

Based on our review of the text of the appointments clause, its historical development, and our precedents interpreting it, we conclude that this clause gives the Governor the exclusive authority to appoint constitutional officers whose appointments are not otherwise provided for by the constitution. The appointments clause does not prohibit the General Assembly from appointing statutory officers to administrative commissions.

State v. Berger, 368 N.C. at 639–40, 781 S.E.2d at 252 (emphasis in original).

The second issue was not as broad as the first and was bound by “the specific appointment provisions challenged.” Each of the examined commissions was primarily administrative or executive in character and had final authority over executive branch decisions. See id. at 645-46, 781 S.E.2d at 256. By design of the session law, each commission was given “final executive authority over certain

DENR decisions, sapping the power of a principal administrative department over which the Governor has greater control.” Id. at 646, 781 S.E.2d at 257. The Court found it noteworthy that DENR “unquestionably falls under the Governor’s purview.” Id. at 646, n.5, 781 S.E.2d at 256.

Against that important factual backdrop, the Court posited that it “cannot adopt a categorical rule that would resolve every separation of powers challenge to

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115/384 the legislative appointment of executive officers.” 368 N.C. at 646, 781 S.E.2d at

257. “While the General Assembly’s ability to appoint an officer obviously does not give it power to control what that officer does, we must examine the degree of control that the challenged legislation allows the General Assembly to exert over the execution of laws.” Id. at 648, 781 S.E.2d at 257. “The degree of control that the Governor has over the three commissions depends on his ability to appoint the commissioners, to supervise their day-to-day activities, and to remove them from office.” 368 N.C. at 646, 781 S.E.2d at 256.

Examining those factors, the Supreme Court determined the commissions’ structure usurped executive control over a principal department and gave it to the

General Assembly when: (1) the General Assembly could appoint a majority of the members of the commissions, (2) those commissions then had final authority over the administrative agencies controlled by the Governor, and (3) the Governor’s ability to remove the members of the commissions was limited. Id. at 646, 781

S.E.2d at 256-57.

When those [legislatively appointed] officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented in any area of the law that the commission regulates. As a result, the Governor cannot take care that the laws are faithfully executed in that area. The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.

State v. Berger, 368 N.C. at 647, 781 S.E.2d at 257.

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116/384 While Plaintiff relies on the holding in Berger as the basis for his constitutional challenges, the holding in Berger is much narrower than Plaintiff asserts. Berger does not dictate that the Session Laws are unconstitutional. In fact, the General Assembly has the right to appoint members of the Bipartisan

Board, advise and consent on the selection of principal department heads, and adjust the number of exempt employees in an administration.

II. PART I OF SESSION LAW 2016-125 IS CONSTITUTIONAL.

Part I of Session Law 2016-125 creates the Bipartisan Board, which is a reorganization or merger of the Board of Elections and the Ethics Commission, into one independent, regulatory and quasi-judicial body. The Bipartisan Board, among other things, implements the State’s election laws and investigates violations of said laws. Plaintiff argues that Part I is unconstitutional because his office must share appointment power with the North Carolina General Assembly. Although both Plaintiff and the General Assembly are required by Part I to appoint an equal number of members to the Bipartisan Board from both major political parties,

Plaintiff argues that requiring six of the eight members of the Bipartisan Board to agree on a course of action will create deadlock and prevent him from carrying out the functions of the Bipartisan Board, thus violating the North Carolina

Constitution’s mandate of separation of powers and his executive responsibilities.

However, this issue raised by Plaintiff is a non-justiciable political question for which the Court lacks authority to review. Moreover, there is no violation of the separation of powers; the General Assembly did not take for itself power that was

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117/384 constitutionally-allocated to the Governor, and Part I of the Session Law does not

violate the Constitution of this State.

A. Reorganizing the Structure of the Bipartisan Board is Constitutionally Within the Governor’s Power, Thereby Removing It From This Court’s Purview.

It is without question that the General Assembly has the authority and

power to create and modify the duties of state agencies. See, e.g., Adams v. N.

Carolina Dep't of Nat. & Econ. Res., 295 N.C. 683, 696–97, 249 S.E.2d 402, 410

(1978) (“[I]t has long been recognized by this Court that the problems which a modern legislature must confront are of such complexity that strict adherence to ideal notions of the non-delegation doctrine would unduly hamper the General

Assembly in the exercise of its constitutionally vested powers.”).

In 1968, the Study Commission recommended amendment 8 to the proposed

Constitution. That Amendment dealt with the reorganization of state agencies and a mandate on the General Assembly to reduce the number to 25. Report of the

North Carolina State Constitution Study Commission 1968, 128 (1968). It was adopted by the people of North Carolina and became Article III, Sections 5(10) and

(11) of the North Carolina Constitution. See Sanders, supra, p. 9. Article III § 5(10) provides:

Administrative reorganization. The General Assembly shall prescribe the functions, powers, and duties of the administrative departments and agencies of the State and may alter them from time to time, but the Governor may make such changes in the allocation of offices and agencies and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration. If those changes affect existing law, they

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118/384 shall be set forth in executive orders, which shall be submitted to the General Assembly not later than the sixtieth calendar day of its session, and shall become effective and shall have the force of law upon adjournment sine die of the session, unless specifically disapproved by resolution of either house of the General Assembly or specifically modified by joint resolution of both houses of the General Assembly.

N.C. Const. art. III, § 5(10).

Discussing the impetus for this change, the Commission noted, similar to the lament of prior Governors, that it was impossible to manage such a sprawling agency system, despite the power to control it being in the General Assembly:

One obvious prescription [for a 200 state agency system] is to reduce to a reasonable number the agencies the Governor must oversee. Yet each session of the General Assembly sees a net addition of 5 or 10 agencies to the chart. The General Assembly has the authority to cut the number of state agencies to manageable proportions through consolidation and elimination, but experience indicates that it is most unlikely to do so in the absence of a clear mandate from the people that it be done. Hence this amendment.

Study Commission, supra, p. 130; id. at p. 131 (“The structure and powers of state agencies are prescribed in considerable detail by statute.”). This Amendment was not designed to divest the General Assembly of its authority to control the structure of state government.

The General Assembly will not be deprived of any of its present authority over the structure and organization of state government. It retains the power to make changes on its own initiative, it can disapprove any change initiated by the Governor, and it can alter any reorganization plan which it has allowed to take effect and then finds to be working unsatisfactorily.

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119/384 Id. at pp. 131-32. Rather, it gave the Governor an authoritative power to effect change not before realized in government; the amendment “vests in the Governor the authority to prepare and submit to the General Assembly proposals for state governmental reorganization.” Id. at 131.

In sum, and by design in the text of the Constitution, the General Assembly and Governor are proscribed to a certain relationship in the management of state agencies, with the General Assembly having the final authority. See Article III,

Section 5(10). Where the General Assembly acts, the Governor can evaluate and

“may make such changes in the allocation of offices and agencies and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration.” Id. If changes to law are necessary, an executive order outlining the changes is proposed to the General Assembly within 60 days of its session and the General Assembly can approve, disapprove, or take no action, which will have the effect of the Governor’s proposed changes to the laws affecting state agencies amending the statutes. Id.

Here, the General Assembly did act to reorganize the agencies of state government through Part I of Session Law 2016-125, combining the Board of

Elections and Ethics Commission into the Bipartisan Board. Plaintiff argues that changes violate the separation of powers. But this argument fails.

First, the authority of the General Assembly to change the functions of agencies and reorganize state agencies is in the text of the Constitution. Plaintiff’s theory amounts to arguing that specific, coordinated powers regarding the

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120/384 organization of agencies in Article III § 5(10) itself violates Article I’s more general separation of powers clause. That argument cannot stand. “It is axiomatic that the terms or requirements of a constitution cannot be in violation of the same constitution - a constitution cannot violate itself.” Leandro v. State, 346 N.C. 336,

352, 488 S.E.2d 249, 258 (1997).

Second, this Court cannot interject itself into a balance struck in the text of the Constitution specifically dealing with the organization and structure of a state agency. Plaintiff argues that the anticipated dysfunction or deadlock of the

Bipartisan Board will hinder the faithful execution of the laws and, therefore, seeks a declaratory judgment that the change violates the separation of powers clause and a permanent injunction to enjoin such violation. Again, though, if the Governor believes changes from current law in the “functions, powers, and duties” “of offices and agencies” are “necessary for efficient administration,” his constitutional course of action is an Executive Order presented to the General Assembly for review, see

Article III, Section 5(8), not judicial review and injunction. Where the text of our

Constitution makes clear that the commitment of the power to alter the functions and duties of state agencies is reserved for the legislature and the Governor through executive order, the issue is a political question that this Court lacks authority to review.

As the Supreme Court recognized in Baker v. Carr, 369 U.S. 186, 217, 82

S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), any one of the following conditions may give rise to a non-justiciable political question:

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121/384 … a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. (emphasis added). Addressing the non-justiciability of political questions, our

Supreme Court in Bacon explained:

The political question doctrine controls, essentially, when a question becomes “not justiciable ... because of the separation of powers provided by the Constitution.” Powell v. McCormack, 395 U.S. 486, 517, 89 S.Ct. 1944, 1961, 23 L.Ed.2d 491, 514 (1969). “The ... doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill-suited to make such decisions....” Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166, 178 (1986). “It is well established that the ... courts will not adjudicate political questions.” Powell, 395 U.S. at 518, 89 S.Ct. at 1962, 23 L.Ed.2d at 515.

Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001). Because “issues of constitutional power between the nation and the states and between the executive and legislative branches turn more on matters of pragmatic operation than on those of principled interpretation (unlike questions of individual rights), there is a much sounder basis for vesting such decisions with the political rather than judicial

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122/384 organs of government.” Jesse H. Choper, The Political Question Doctrine:

Suggested Criteria, 54 Duke L.J. 1457, 1466 (2005).

When the text of the Constitution provides the Governor with a designed

mechanism for challenging the organization the General Assembly has put in place,

there is no constitutional controversy for this Court to decide. The Court’s decision

will infringe on the balance of powers struck within the Constitution itself. Here,

the Governor can closely monitor the efficiency of the Bipartisan Board. If it is

incapable of working efficiently, he can propose his changes to the General

Assembly in the light of concrete examples and study as opposed to offering

speculative hyperbole to this Court in a request to enter injunctive relief.

B. The Board of Elections Is Not A Purely-Administrative Agency

Plaintiff has alleged that the Board of Elections “is an executive agency

charged with executing the State’s election laws.” Amended Complaint ¶ 30.

However, the Board of Elections – like the Ethics Commission and the Bipartisan

Board – is not a purely administrative agency. To the contrary, the Board of

Elections is, as expressly set forth by statute, “an independent regulatory and

quasi-judicial agency and shall not be placed within any principal administrative

department.”10 See N.C. Gen. Stat. § 163-28; see also Batdorff v. N. Carolina State

10 Session Law 2016-125 uses virtually identical language to describe the independence of the Bipartisan Board: the Bipartisan Board “shall be and remain an independent regulatory and quasiǦjudicial agency and shall not be placed within any principal administrative department.” Session Law 2016-125, s.2.(c). And, while the Ethics Commission is housed within the Department of Administration, it is located there “for administrative purposes only,” and “shall exercise all of its - 34 -

123/384 Bd. of Elections, 150 N.C. App. 108, 112, 563 S.E.2d 43, 45 (2002) (quoting the

statutory text).11

Our Supreme Court has recognized that the Board of Elections was created to

administer and supervise elections in order to ensure that such elections are

conducted in accordance with the law:

It would seem that by the enactment of G.S. § 163–10 and other sections of Chapter 163 of the General Statutes, the General Assembly gave the State Board of Elections power to supervise primaries and general elections to the end that, insofar as possible, the results in primary and general elections in North Carolina will not be influenced or tainted with fraud, corruption or other illegal conduct on the part of election officials or others, and we so hold. The people are entitled to have their elections conducted honestly and in accordance with the requirements of the law. To require less would result in a mockery of the democratic processes for nominating and electing public officials.

Ponder v. Joslin, 262 N.C. 496, 500, 138 S.E.2d 143, 147 (1964); see also Appeal of

Judicial Review by Republican Candidates for Election in Clay Cty., 45 N.C. App.

556, 559–60, 264 S.E.2d 338, 340 (1980); N.C. Gen. Stat. § 163-22(a) (“The State

Board of Elections shall have general supervision over the primaries and elections

powers, including the power to employ, direct, and supervise all personnel, independently of the Secretary of Administration[.]” N.C. Gen. Stat. § 138A-9(b).

11 Pursuant to Article III, Sec. 11 of the Constitution, “[A]ll administrative departments, agencies, and offices of the State and their respective functions, powers, and duties shall be allocated by law among and within not more than 25 principal administrative departments so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may, but need not, be allocated within a principal department.” Per statute, the General Assembly makes clear that the Board of Elections is not an administrative department, agency, or office of the state. - 35 -

124/384 in the State[.]”). The Governor has not been given that same mandate by the

General Assembly.12

In order to carry out its duties, “the State Board of Elections must have

authority to hear and act on complaints, whether they arise by petitions filed in

accordance with the rules and regulations promulgated by the Board or otherwise.”

Appeal of Judicial Review by Republican Candidates for Election in Clay Cty., 45

N.C. App. at 559–60, 264 S.E.2d at 340. This independence of control over elections

through the Board of Elections’ appointment of county election officials led one

federal court judge to note simply that “[n]o enforcement power of the [election] law

resides within the Governor, the House Speaker, or the Senate President Pro Tem.”

Wright v. N. Carolina, 975 F.Supp.2d 539, 543 (E.D.N.C. 2014) (amending a

complaint to add the Governor, Speaker, or President Pro Tempore was futile as none had a special duty to execute the election law at issue), aff’d in part, rev’d in part on other grounds, 787 F.3d 256 (4th Cir. 2015).

The Board of Elections does not answer to the Governor, and the Governor controls no aspect of election law enforcement above the Board or at the county

12 In fact, the General Assembly, which the Constitution contemplates shall have a role in elections, see N.C. Const. art. VI, §§ 3, 5, has recognized that it is important that the Board of Elections not be controlled by elected officials. See N.C. Gen. Stat. § 163-19 (“No person shall be eligible to serve as a member of the State Board of Elections who holds any elective or appointive office under the government of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a political party, or organization, or who is a candidate for nomination or election to any office, or who is a campaign manager or treasurer of any candidate in a primary or election shall be eligible to serve as a member of the State Board of Elections.”).

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125/384 level. The Board of Elections itself appoints all members of the 100 county boards

of election and advises them as to the proper methods of conducting primaries and

elections. N.C. Gen. Stat. § 163-22(c).

Moreover, neither the Board of Elections nor the Bipartisan Board, with its

similar structure, interferes with the Governor’s control over other clearly-executive

bodies as was the case in State v. Berger. For example, in Berger, the Oil and Gas

Commission, which was made up of three gubernatorial appointees and six General

Assembly appointees and which was housed within DENR, had its own committee

that was granted the power to remit civil environmental penalties that DENR

imposed. 386 N.C. at 637, 781 S.E.2d 251. Likewise, the Coal Ash Management

Commission, which was made up of three gubernatorial appointees and six General

Assembly appointees, “had the power to review and approve coal ash surface

impoundment classifications and closure plans that DENR proposes.” Id. In other

words, these commissions, with the majority of their members appointed by the

General Assembly, essentially had the power to trump the actions of DENR, a principal department unquestionably within the executive branch. See State v.

Berger, 368 N.C. at 646 n.5, 781 S.E.2d at 256; N.C. Gen. Stat. § 143B-6. The same cannot be said of the Bipartisan Board, which is the ultimate body overseeing elections and ethics issues.

Plaintiff classifies many of the powers and duties assigned to the Board of

Elections as “executive in nature” and alleges that “Part I assigns to the [Bipartisan

Board] all of the executive duties . . . that are presently the responsibility of the

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126/384 [Board of Elections],” and that “Part I strips the Governor of his ability to control the [Bipartisan Board].” Amended Complaint, ¶¶ 31-33, 46. However, as discussed above, the Board of Elections is an independent body not subject to the Governor’s control (despite what Plaintiff would lead the Court to believe). As such, the creation of the Bipartisan Board and changes in the appointments thereto and voting thereof, do not diminish Plaintiff’s alleged control over the execution of election laws.

C. The Makeup of the Bipartisan Board Does Not Violate the Constitution.

The General Assembly’s decision to restructure the appointment rights of the

Governor and the General Assembly from what was present in N.C. Gen. Stat. §

163-19 to what is present in Part I does not violate the requisite separation of powers and, thus, is not unconstitutional. Under State v. Berger, the Court, in considering the constitutionality of the Session Law, must analyze the function of the commission and its majority control.

As noted supra, the Bipartisan Board is quasi-judicial and even quasi- legislative, see, e.g., N.C. Gen. Stat. § 163-22.2 (giving the Board of Elections the ability to pass interim rules and regulations if laws of the General Assembly regarding an election are struck down as unconstitutional when the General

Assembly is not in session), and not purely administrative. Additionally, a critical distinction between the issues raised herein and the issues in State v. Berger is that the General Assembly does not appoint the majority of the members of the

Bipartisan Board. Rather, the Session Law follows the governance structure of the

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127/384 Ethics Commission: four appointments made by the Governor and four

appointments made by the General Assembly. Compare Session Law 2016-125,

s.2(c) with N.C. Gen. Stat. § 138A-7. The Bipartisan Board, like the Ethics

Commission, has eight members, four appointed by the Governor, with two

appointees from each of the two major political parties, and four appointed by the

General Assembly, also with two appointees from each of the two major parties. See

id. The General Assembly does not control the majority of the appointments;

rather, both branches control an equal number.

The Governor and the General Assembly are each granted the same powers

of removal of their appointed members of the Bipartisan Board. Pursuant to the

Session Law, “Members shall be removed by the member’s appointing authority

from the [Bipartisan Board] only for misfeasance, malfeasance, or nonfeasance.”

This removal power is the same as applied to the Ethics Commission, see N.C. Gen.

Stat. § 138A-7(b).

Plaintiff argues that the Governor’s removal power under Chapter 163 of

Board of Elections members was “plenary” but that, under the Session Law, will be limited to malfeasance, misfeasance, or nonfeasance. However, there is no support for the proposition that the Governor had the unqualified right to remove members from the Board of Elections. Chapter 163 addresses removal of a member in only two specific circumstances:

x “If any member of the Board fails to attend a meeting, and by reason thereof there is no quorum, the members present shall adjourn from day to day for not more than three days, by the end of which time, if

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128/384 there is no quorum, the Governor may summarily remove any member failing to attend and appoint his successor.” N.C. Gen. Stat. § 163-20.

x “A violation of [Article 4A of Chapter 163, limiting political activities of members of the State Board of Elections and the county boards of election] may be a ground to remove a State Board of Elections member under G.S. 143B-16 or a county board of elections member under G.S. 163-22(c).”

Presumably, Plaintiff takes the position that the Governor can remove members of the Board of Elections under N.C. Gen. Stat. § 143B-16, which addresses the Governor’s appointment and removal of members of boards.

However, even thereunder, the Plaintiff’s right to remove any “member of a board, council, or committee” is limited to instances of a member’s “misfeasance, malfeasance, or nonfeasance,” N.C. Gen. Stat. § 143B-16, the very same grounds for removal included in the Session Law. Given that it is not clear that N.C. Gen. Stat.

§ 143B-16 applies to the Board of Elections other than as set forth in N.C. Gen.

Stat. § 163-40, Part I codifies removal power that may have been unclear before.

There is no majority control of the Bipartisan Board by the General

Assembly. For the Governor and the General Assembly, the number of appointments is the same, the political affiliation of the appointments is the same, and the removal power is the same. The Bipartisan Board presents no constitutional threshold concern regarding appointment power, and it does not place the majority of appointments in the hands of the General Assembly, so there is no separation of powers concern.

D. The Quorum And Majority Vote Requirements Established By Part I Do Not Render The Bipartisan Board Unconstitutional.

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129/384 Plaintiff speculates that Session Law 2016-125’s “super-majority voting requirement (and concomitant super-majority quorum requirement)” will interfere with executive power because “the legislative appointees can effectively hamstring the myriad actions required for the proper administration and execution of elections laws.” Amended Complaint, ¶ 47. Session Law 2016-125 does set forth that six members constitute a quorum and that a majority vote for action requires six of eight members. However, it is pure hyperbole that the members of the Bipartisan

Board will not be able to work together to carry out their duties.

In order to provide some basis for the alleged violation of separation of powers, Plaintiff predicts deadlock between the gubernatorial appointees and the legislative appointees. Amended Complaint, ¶ 47. Defendants, submit, however, that, in reality, Plaintiff is more concerned that there will be an equal number of

Republicans and Democrats on the Bipartisan Board as opposed to a majority of

Democrats as would be the case on the Board of Elections come May 2017 (when, as set forth in N.C. Gen. Stat. § 163-19, the Governor would appoint the members to the Board of Elections). A body equally divided between political parties is not prohibited by the Constitution and does not raise a separation of powers issue.

And, the fact that the body overseeing elections does not have the party makeup

Plaintiff had hoped for does not raise a separation of powers issue. See, e.g., State ex rel. Martin v. Preston, 325 N.C. at 455, 385 S.E.2d at 482 (quoting Penny v. Board of Elections, 217 N.C. at 279, 7 S.E.2d at 561 (“the right to seek office ‘is a political privilege and not inalienable, and certainly when a different method of selection has

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130/384 been provided, consistent with the Constitution, the fact that [a candidate’s]

aspiration has been thwarted by a nondiscriminatory change of the law gives him

no cause of action.’”); see also, e.g., Dickson v. Rucho, 368 N.C. 481, 509, 781 S.E.2d

404, 424 (2015), opinion modified on denial of reh’g, 368 N.C. 673, 789 S.E.2d 436

(2016) (emphasizing that the United States Supreme Court has recognized “political

advantage” as a legitimate legislative consideration) (citing Hunt v. Cromartie

(“Cromartie I”), 526 U.S. 541, 551, 119 S.Ct. 1545, 1551, 143 L. Ed. 2d 731, 741

(U.S. 1999)); Pope v. Blue, 809 F.Supp. 392, 396 (W.D.N.C.), aff’d, 506 U.S. 801, 113

S.Ct. 30, 121 L. Ed. 2d 3 (U.S. 1992) (reciting rule that, for “an inherently political

process,” plaintiffs could not bring a redistricting challenge based on “‘the mere fact

that a particular apportionment scheme makes it more difficult for a particular

group in a particular district to elect the representatives of its choice.’”) (citing

Davis v. Bandemer, 478 U.S. 109, 131, 106 S.Ct. 2797, 2810, 92 L. Ed. 2d 85 (1986)).

As set forth above, the Bipartisan Board, like the Board of Elections, is independent in nature. Session Law 2016-125 § 2.(c); N.C. Gen. Stat. § 163-28.

And, as recognized by the Supreme Court, “[T]he General Assembly’s ability to appoint an officer obviously does not give it the power to control what that officer does[.]” State v. Berger, 368 N.C. at 647, 781 S.E.2d at 257. In fact, the members of the Bipartisan Board (like the members of the Board of Elections) take an oath swearing to execute the duties of the office:

“I, ______, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina and to the constitutional powers and authorities

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131/384 which are or may be established for the government thereof; that I will endeavor to support, maintain, and defend the Constitution of said State; and that I will well and truly execute the duties of the office of member of the Bipartisan State Board of Elections and Ethics Enforcement according to the best of my knowledge and ability, according to law, so help me God.”

Session Law 2016-125, § 2.(c).

In support of his position, Plaintiff has offered the Affidavit of Robert B.

Cordle, who avers that, in his opinion, obtaining a super-majority of six out of eight members of the Bipartisan Board will be “virtually impossible,” presumably because not even two of the four legislative (or Republican) appointees will side with the gubernatorial (or Democratic) appointees and vice versa. However, there is evidence to the contrary. The current Chairman of the Board of Elections recused himself from consideration of certain one-stop early voting appeals for the 2016 statewide primary election, leaving two Republican members and two Democratic members to vote, yet no votes ended in a tie. See Affidavit of Kim Westbrook Strach at ¶ 9. In fact, it is not uncommon for members of the Board of Elections (three

Republicans and two Democrats) to vote unanimously or for a matter to pass with bipartisan support. Id. at ¶ 10. The members of the Board of Elections, having taken an oath to execute their duties, worked together; neither party coalition chose to hamstring the Board of Elections. Similarly, the Ethics Commission, which consists of four gubernatorial appointees (but no more than two from the same party) and four legislative appointees (but not more than two from the same party), has been able to conduct its business since its creation in 2006. There is no

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132/384 evidence that the Ethics Commission has been so hamstrung as to render it unable to take action. Likewise, it should be presumed that the appointees to the

Bipartisan Board will do the same. See, e.g., State v. Bryant, 359 N.C. at 564, 614

S.E.2d at 486 (2005) (“‘[t]he presumption is that any act passed by the legislature is constitutional.’ . . . An individual challenging the facial constitutionality of a legislative act ‘must establish that no set of circumstances exists under which the

[a]ct would be valid.’ . . . The fact that a statute ‘might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.’”).

Plaintiff focuses on the requirement under Part I that six out of eight members are needed to establish a quorum as well as the majority vote needed for action. Amended Complaint, ¶ 43. Plaintiff alleges (and his affiant, Mr. Cordle, opines) that it will be difficult to reach this super-majority since the Bipartisan

Board is evenly divided between legislative and gubernatorial appointees (and

Republican and Democratic appointees). However, the same argument could be made for how difficult it would be to obtain even a simple majority of five out of eight members. As such, Plaintiff essentially argues that such an evenly-divided board is unconstitutional. Of course, that was not the narrow question at issue in

State v. Berger, where each of the commissions in question had more legislative than gubernatorial appointees. State v. Berger, 386 N.C. at 637, 781 S.E.2d at 251.

Moreover, there has been no challenge to the constitutionality of the Ethics

Commission, which has the same makeup as the Bipartisan Board (four

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133/384 gubernatorial appointees but no more than two from the same party and four legislative appointees but not more than two from the same party). The Ethics

Commission was created by a statute signed into law by former Democratic

Governor Michael Easley, see Session Law 2006-201, and has operated without challenge under three governors (Governor Easley, Governor Beverly Perdue

(Democrat), and Governor McCrory (Republican)) prior to the election of Plaintiff.

Finally, there are numerous other boards and commissions tasked with some administrative functions that are made up of an even number of members such that tie votes and, therefore, deadlock, are hypothetical possibilities. See, e.g., N.C. Gen.

§ 97-77 (Industrial Commission); § 143-151.46 (North Carolina Home Inspector

Licensure Board); § 143B-392 (North Carolina Human Relations Commission); §

90C-23 (North Carolina Board of Recreational Therapy Licensure); § 143-717

(Tobacco Trust Fund Commission). However, these bodies have been able to carry out their duties and what Plaintiff might call executive functions just as it should be presumed the Bipartisan Board will do. See, e.g., State v. Bryant, 359 N.C. at

564, 614 S.E.2d at 486.

E. Setting July 1 As The Date For The Governor’s Appointees To The Bipartisan Board To Take Office Is Not Unconstitutional.

Plaintiff alleges and argues that, prior to 1 July 2017, all members of the

Bipartisan Board are legislative appointees through the enactment of Part I of

Session Law 2016-125. Amended Complaint, ¶ 39. Under Part I, the members of the Ethics Commission as of 31 December 2016, are to serve as the members of the

Bipartisan Board until 30 June 2017. However, Plaintiff’s argument ignores the

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134/384 fact that four of the members of the Ethics Commission as of 31 December 2016,

were, in fact, appointed by Governor McCrory.

Notably, Plaintiff argues that his inability to appoint new members to the

Bipartisan Board until 1 July 2017, is a basis for finding that law void. Amended

Complaint, ¶ 55. In other words, since any gubernatorial appointees cannot take

office now, Plaintiff lacks sufficient control over the Bipartisan Board. However,

Plaintiff also has no authority to appoint new members to the Board of Elections to

take office at this time, a statutory limitation that he is not challenging. Currently,

the five members of the Board of Elections were appointed by Governor McCrory,

and Plaintiff’s appointees to the Board of Elections would not be able to take office

until 1 May 2017. See N.C. Gen. Stat. § 163-19.13 Allowing one’s predecessor’s

appointees to complete their terms does not rise to the level of a constitutional

violation.

Plaintiff alleges that, under Part I, he would not be able to remove any of the

members of the Bipartisan Board between January 1 and July 1, 2017. Amended

Complaint, ¶ 37. Defendants disagree with Plaintiff’s reading of Part I. A plain

13 In the Amended Complaint and prior to the United States Supreme Court’s stay of the special primaries ordered by the Middle District of North Carolina in Covington v. State of North Carolina, Plaintiff argued that the members of the Bipartisan Board, none of whom he would have appointed, would “serve until the eve of the next election.” Amended Complaint, ¶ 56. And, Mr. Cordle averred that there would be very little time for new members of the Bipartisan Board to receive adequate training and to gain a necessary understanding of North Carolina elections law prior to the anticipated special primary. Affidavit of Robert B. Cordle, ¶ 7. While the issues regarding the special primary are now moot, these arguments would have applied equally to the current Board of Elections, none of whom were appointed by Plaintiff and all of whom would serve until May. - 46 -

135/384 reading of Part I states that “Members shall be removed by the member’s

appointing authority from the State Board only for misfeasance, malfeasance, or

nonfeasance.” Session Law 2016-125, § 2.(c). As stated above, four of the current

members of the Ethics Commission (who would be four of the members of the

Bipartisan Board through 30 June 2017), are gubernatorial appointees. As such,

Plaintiff has the ability to remove any member for failing to act or for wrongdoing

and to fill that vacancy as set forth in Part I.14

F. The Rotation Of The Chair Of The Bipartisan Board Does Not Invalidate The Law.

Part I of Session Law 2016-125 provides that the Bipartisan Board shall

select its own chair but does provide that the chair shall rotate annually between

parties:

… the State Board shall organize by electing one of its members chair and one of its members viceǦchair, each to serve a oneǦyear term as such. In the oddǦnumbered year, the chair shall be a member of the political party with the highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the viceǦchair a member of the political party with the second highest number of registered affiliates. In the evenǦnumbered year, the chair shall be a member of the political party with the second highest number of registered affiliates, as reflected by the latest registration statistics published by the State Board, and the viceǦchair a member of the political party with the highest number of registered affiliates.

14 Part I states that “Any vacancy . . . shall be filled by an individual affiliated with the same political party of the vacating member. Any vacancy occurring in . . . an appointment made by the Governor shall be filled by the Governor, and the person so appointed shall fill the unexpired term. The Governor shall fill the vacancy from a list of two names submitted by the State party chair of the political party with which the vacating member was affiliated if that list is submitted within 30 days of the occurrence of the vacancy term.” - 47 -

136/384 Plaintiff alleges and argues that the Bipartisan Board chair “will rotate between the

parties (in a manner which disadvantages the majority party) rather than being

presumptively chosen by the appointed members of the Governor’s party.”

Amended Complaint, ¶ 46(g). It is unclear how – and entirely speculative that –

this rotation disadvantages the majority party.15 While Plaintiff is correct that,

based on current registrations in this State, it is likely that the chair of the

Bipartisan Board will be a Republican in even-numbered years, Plaintiff can point

to no support that such an arrangement is unconstitutional. For instance, since

both the Governor and the General Assembly make four appointments, two from

each of the major political parties, it is just as likely that the chair will be one of the

Governor’s appointees as one of the General Assembly’s appointees. As such, there

can be no separation of powers concern. In fact, this argument cuts to the heart of

Plaintiff’s motivation in bringing this action and, particularly, the claims related to

the Bipartisan Board. While Plaintiff alleges a violation of the separation of powers

based on the legislative appointees’ alleged ability to hamstring the Bipartisan

Board, Defendants submit that Plaintiff’s real concern is that the Republican

appointees (two of whom are to be appointed by the Governor and two of whom are

to be appointed by the General Assembly) could prevent the Democratic appointees

(two of whom are to be appointed by the Governor and two of whom are to be

15 As addressed elsewhere in this brief, “[T]he General Assembly’s ability to appoint an officer obviously does not give it the power to control what that officer does[.]” State v. Berger, 368 N.C. at 647, 781 S.E.2d at 257. Likewise, the fact that the General Assembly has developed a rotation of chair as set forth in Session Law 2016-125 does not give it the power to control what the chair does. - 48 -

137/384 appointed by the General Assembly) from advancing their (and the Governor’s)

political agenda as opposed to preventing the executive appointees from executing the law.

Moreover, on a practical level, the chair has limited power to act on his or her own. For instance, the Bipartisan Board meets monthly “and at other times as called by its chair or by six of its members.” Session Law 2016-125 § 2.(c) (emphasis

added). And, while the chair is to sign and issue subpoenas for designated

witnesses or identified records, he or she may do so only upon a vote of six or more

of the Bipartisan Board’s members. Id.

The General Assembly regularly designates how the chair of a board or

committee is selected. For instance, as in the case of the Bipartisan Board, the

controlling statute may indicate that the members of the board or commission are to

elect the chair out of their membership. See, e.g., N.C. Gen. Stat. § 163-19 (Board of

Elections elects its chair); N.C. Gen. Stat. § 143-135.25 (chair of the State Building

Commission elected by the members of the State Building Commission, three of

whom are appointed by the governor and six of whom are appointed by the General

Assembly); N.C. Gen. Stat. § 93E-1-5 (chair of the North Carolina Appraisal Board

elected by members, five of whom are appointed by the governor, and four of whom

are appointed by the General Assembly); N.C. Gen. Stat. § 115D-2.1 (chair of the

State Board of Community Colleges elected by members, 10 of whom are appointed

by the Governor, eight of whom are appointed by the General Assembly, and three

of whom (Lieutenant Governor, Treasurer of North Carolina, and the president of

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138/384 the North Carolina Comprehensive Community College Student Government

Association) are designated as ex officio members). In other instances, the controlling statute indicates that the governor is to select the chair. See, e.g., N.C.

Gen. Stat. § 97-77 (chair of Industrial Commission designated by the Governor).

And, in some cases, the controlling statute specifies who is to serve as the chair.

See, e.g., N.C. Gen. Stat. § 106-2 (Commissioner of Agriculture designated as chair of Board of Agriculture, which is comprised of 11 other members, all of whom are appointed by the Governor).

The rotation of the chair established by Session Law 2016-125 simply does not implicate separation of powers or otherwise violate the Constitution.

III. PART III OF SESSION LAW 2016-126 IS CONSTITUTIONAL.

A. Defendants Have The Power To Confirm Statutory Appointees.

Plaintiff argues that there is no constitutional provision granting the Senate advice and consent power over his appointed State department heads as now required by Part III of Session Law 2016-126. Amended Complaint, ¶ 75. Article

III, Section 5(8) of our state constitution reads: “The 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.” Plaintiff argues that, under

State v. Berger, the proper way to read this clause is: “The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all constitutional officers whose appointments are not otherwise provided for in this

Constitution.” Amended Complaint, ¶ 77 (emphasis in original). As discussed

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139/384 above, Plaintiff’s reading of State v. Berger goes too far. Plaintiff’s restrictive interpretation of the General Assembly’s ability to advise and consent on statutory officers is based on “a serious misconception of the function of a state constitution and especially of the authority of the legislature.” Report of the North Carolina

State Constitution Study Commission 1968, p. 2 (1968).

First, while State v. Berger did analyze the appointments clause in the context of who, the Governor or the General Assembly, had the authority to appoint, it does not construe the portion of the clause regarding authority to confirm appointments.

Moreover, Plaintiff attempts to read Article III, Section 5(8) as a grant of power to the General Assembly, which, as discussed above, is contrary to North

Carolina precedent. Plaintiff argues the “advice and consent” in the appointments clause is a grant to the General Assembly to advise and consent on constitutional officers only. Because the Constitution is silent as to advice and consent on statutory officers, Plaintiff argues that there is no constitutional authority for the

General Assembly to institute such advice and consent by statute. See id. ¶ 79

(“Because the non-elected heads of the principal administrative departments of the executive branch are statutory officers - and not constitutional officers - Article III,

Section 5(8) does not permit senatorial advice and consent of the Governor’s cabinet secretaries.”); Motion for Temporary Restraining Order and Motion for Preliminary

Injunction, ¶¶ 23, 31-32 (citing Utah law on the Utah constitution that “requires an

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140/384 express grant of such power.”). Plaintiff, however, cites no North Carolina authority in support of his position.

Article III, Section 5(8) is not the source (or “grant”) of authority to the

General Assembly regarding advice and consent. Much to the contrary, “all power which is not limited by the Constitution inheres in the people, and an act of a State legislature is legal when the Constitution contains no prohibition against it[.]”

Town of Boone v. State, ___ N.C. ___, 794 S.E.2d 710 (2016). Moreover, Article III,

Section 5(8) is not a prohibition; it does not, beyond a reasonable doubt, restrict the

General Assembly’s advice and consent power as to statutory appointees. See

Crump v. Snead, 134 N.C. App. 353, 355, 517 S.E.2d 384 (1999) (citations omitted).

The Appointments clause stands for the principle that the people of North Carolina gave the governor the exclusive right to appoint constitutional officers, subject to the advice and consent of the Senate. Article III, Section 5(8) permits advice and consent at the highest level of constitutional office but is not a limitation of advice and consent. That is the appropriate interpretation of Article III, Section 5(8) -- not that the General Assembly can advise and consent on only constitutional officers.

“Because the Constitution is a restriction of powers, . . . those powers not surrendered are reserved to the people to be exercised by their representatives in the General Assembly, so long as an act is not forbidden[.]” Guilford Cty. Bd. of

Educ. v. Guilford Cty. Bd. of Elections, 110 N.C. App. 506, 510, 430 S.E.2d 681, 684

(1993). The fact that Utah, Alaska, or Texas may interpret their own state constitutions differently is not binding here in North Carolina.

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141/384 Far from forbidden, statutes requiring the Governor to appoint statutory officials subject to advice and consent have been upheld for over 100 years. In

Salisbury v. Board of Directors of State Hospital, 167 N.C. 223, 83 S.E. 354 (1914), the advice and consent of administrative directors was determined to be constitutional. There, after a resignation in the position of director of the State

Hospital a year into the director’s six-year term, the Governor appointed Salisbury to the position while the legislature was not in session and commissioned him for the remainder of the term. Id. at 223, 83 S.E. at 354. “Salisbury’s name was never sent to the Senate, and his said appointment was not confirmed by the Senate.” Id.

Prior to the expiration of the six-year term, A.B. Croom was nominated by the

Governor to be the director, and Croom was confirmed by the Senate. Id. The State

Hospital voted that Salisbury should no longer participate as director and voted him out. He challenged that decision. The North Carolina Supreme Court interpreted the appointments clause the same as it should be interpreted today: that the legislature has the power to appoint statutory officers. It also held that, because the statute that created the directorship required Senate advice and consent, when

Croom was confirmed by the Senate, he was the duly-authorized office holder. Id. at ___, 83 S.E. at 355. The Court held that Salisbury, although properly appointed during a recess of the General Assembly, was never confirmed by the Senate such that only Croom rightfully held the position. Id.

Section 143B-9 is but a recent statutory exercise of the longstanding power of the General Assembly to confirm statutory appointees. Many gubernatorial

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142/384 appointments to statutory positions are subject to confirmation by the General

Assembly. See, e.g., N.C. Gen. Stat. § 62-10 (North Carolina Utilities Commission

appointees); N.C. Gen. Stat. § 97-77(a1) (North Carolina Industrial Commission

appointees). Moreover, while Plaintiff now claims to take issue with the General

Assembly’s authority to give advice and consent regarding statutory appointees,

during his time in the State Senate, Plaintiff not only voted to confirm such

appointees to various bodies but also even sponsored confirmation legislation. See

Defendants’ Response in Opposition to Motion for Preliminary Injunction, ¶ 24. For

Plaintiff to argue that the General Assembly lacks that authority now that he is the

Governor is disingenuous.

Plaintiff’s attempt to twist the Constitution into one of enumerated powers for the General Assembly should be rejected by this Court. The General Assembly has the right to advise and consent on statutory officers appointed by the Governor.

To be sure, separation of powers concerns aside, the North Carolina Supreme Court has already held that the General Assembly could, itself, appoint the very statutory officers that Plaintiff asks this Court to hold are not subject to confirmation. State v. Berger, 368 N.C. at 642, 781 S.E.2d at 254 (“Because the scope of the appointments clause after 1876 no longer encompassed statutory officers, the clause did not prohibit the General Assembly from appointing them.”). That the General

Assembly has the power to enact statutes to establish advice and consent over un- elected, statutory appointments of the Governor should be unquestioned.

B. Part III Does Not Violate Separation of Powers.

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143/384 Plaintiff also argues that, even if the General Assembly can use its inherent power to enact a statute requiring advice and consent on statutory appointees, section 143B-9’s application to heads of principally-administrative agencies appointed by Plaintiff is prohibited because it encroaches on his duty to control the faithful execution of the laws. In other words, Plaintiff argues that the statute violates separation of powers. There is no basis for this argument either.

First, as discussed above, in Article III, Section 5(8), the constitutional framers gave the Governor the exclusive right to appoint constitutional officers but made such appointments subject to advice and consent of the Senate. The

Constitution mandates separation of powers but also expressly permits the Senate to approve the Governor’s appointments of constitutional officers. If it is not a separation of powers concern for the Senate to confirm officers created by the

Constitution itself, it cannot be a separation of powers concern when advice and consent is applied to appointees created by statute. “Plaintiffs are essentially reduced to arguing that one section of the North Carolina Constitution violates another. … It is axiomatic that the terms or requirements of a constitution cannot be in violation of the same constitution - a constitution cannot violate itself.”

Leandro v. State, 346 N.C. at 352, 488 S.E.2d at 258. Thus, this argument is without merit.

Second, there is no question that Plaintiff chooses his nominees, appoints them, supervises them, and removes them if necessary. These were the factors the

State v. Berger Court evaluated to determine whether legislative appointments took

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144/384 too much control from the Governor in violation of the separation of powers

doctrine. State v. Berger, 368 N.C. at 646, 781 S.E.2d at 256 (“The degree of control

that the Governor has over the three commissions depends on his ability to appoint

the commissioners, to supervise their day-to-day activities, and remove them from

office.”) Plaintiff has 100% control over these individuals.

The Court in State v. Berger described Salisbury as an advice and consent

case and noted that it “do[es] not even involve separation of powers challenges,”

State v. Berger, 368 N.C. at 647, 781 S.E.2d at 257, indicating that legislative advice

and consent does not infringe on the executive branch’s duties. In fact, the Court in

State v. Berger recognized “that appointing statutory officers is not an exclusively

executive prerogative.” Id. at 648, 781 S.E.2d at 258.16

Third, the ability to advise and consent can only be exercised by the

legislative branch. It is quintessentially a power that the people’s representatives

have as a potential check on the nature of unelected appointments. Neither

Plaintiff nor the judicial branch enjoys the ability to advise and consent on

statutory appointments that the General Assembly is authorized to make. And,

Article III, Section 5(8) textually supports the principle that it is a privilege of the

General Assembly alone. The Appointments Clause provides that “The Governor

shall nominate and by and with the advice and consent of a majority of the Senators

16 Discussing the Appointment Clause as not prohibiting others from appointing statutory officials: “In terms of separation of powers, this means that the power to appoint someone to execute the laws is not itself the exercise of executive power.” John V. Orth, The North Carolina State Constitution, p. 98 (1995). - 56 -

145/384 appoint all officers whose appointments are not otherwise provided for.” Article III,

Section 5(8).

As was the case with the creation of the Bipartisan Board under Session Law

2016-125, here, the text of our Constitution makes clear the commitment of the power to advise and consent is reserved for the legislature such that the issue is a political question for which this Court lacks authority to review. See Section II(A), supra. As set forth in the Constitution, the legislature enjoys the exclusive privilege of advice and consent and has done so for many years as a measure to ensure appropriate checks and balances and the thorough vetting of individuals wielding significant power in the State. See, e.g., Salisbury v. Bd. of Dirs., 167 N.C. at 226,

83 S.E. at 355 (applying advice and consent to the director of the State hospital). As such, this issue is non-justiciable.

Fourth, Plaintiff’s contention that the use of the advice and consent power would, in effect, lead to the Senate approving only those people who meet its vision, robbing him of putting in place individuals who agree with him, is not an appropriate argument on a facial challenge and is constitutionally infirm speculation. See, e.g., Amended Complaint, ¶ 88 (“[O]nly those cabinet secretaries who are satisfactory to the North Carolina Senate will serve. That allows the

General Assembly to improperly exert control over the implementation of executive policy and prevents the Governor from ensuring that the laws are faithfully followed.”). Implicit in the power to advise and consent is the potential for disagreement. But again, if the exercise of the power to vote an individual

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146/384 appointee up or down were a separation of powers issue, the right would not exist at

all in the Constitution. And, while one could conjure up a scenario in which the

Senate’s presumptive repeated rejection of individuals for a particular office might

violate the separation of powers, that speculative possibility is not relevant to a facial challenge. “The fact that a statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.”

State v. Bryant, 359 N.C. at 564, 614 S.E.2d at 486 (citations omitted).

In sum, advice and consent is inherently legislative, and it is not a violation of the separation of powers to exercise that right. Under section 143B-9, the

Governor (and only the Governor) has the right to appoint the head of the principal

State departments. The General Assembly has the constitutional ability to confirm statutory officers as appointees, and it has been doing so for hundreds of years.

Plaintiff’s arguments to the contrary should be rejected, and this Court should delay enactment of this valid law no more.

IV. PLAINTIFF’S CLAIM THAT §§ 7, 8, & 33 OF PART I OF SESSION LAW 2016-126 VIOLATE THE NORTH CAROLINA CONSTITUTION FAILS AS A MATTER OF LAW.

Plaintiff claims that portions of Sections 7, 8, and 33 of Part I of Session Law

2016-126 (hereinafter the “Exempt Position Amendments”) facially violate two provisions of the North Carolina Constitution: the separation of powers clause in

Article I, § 6 (by infringing on Article III, § 5(4)), and the exclusive emoluments clause in Article I, § 32. Plaintiff’s claims fail as a matter of law because Plaintiff’s own allegations establish that Plaintiff cannot prove the unconstitutionality of the

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147/384 Exempt Positions Amendments beyond a reasonable doubt, as required on a facial challenge. Plaintiff also lacks standing to challenge the Exempt Positions

Amendments on the basis that they violate the exclusive emoluments provision.

A. Overview of Statutory and Constitutional Framework.

The North Carolina Human Resources Act (“NCHRA”) provides that “[n]o career State employee subject to the [NCHRA] shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C. Gen. Stat. § 126-35(a).

A State employee becomes a career State employee by holding a “permanent position with a permanent appointment” and being “continuously employed by the

State of North Carolina or a local entity … in a position subject to the [NCHRA] for the immediate 12 preceding months.” N.C. Gen. Stat. § 126-1.1(a).

The NCHRA provides that certain State employees are not “subject to” the

NCHRA, including “probationary State employees,” those employees who would otherwise qualify as a career State employee but who have not fulfilled the 12- month requirement under section 126-1.1(a). Also not subject to the NCHRA is any employee whose position is designated an “exempt position.” N.C. Gen. Stat. § 126-

5(a)(1), (b)(1). “This designation effectively exempt[s an employee] from almost all of the civil service type protections afforded to state employees under the

[NCHRA].” Carrington v. Brown, 136 N.C. App. 554, 555, 525 S.E.2d 230, 232

(2000). Prior to the Exempt Positions Amendments, the General Assembly had

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148/384 empowered the governor to designate up to 1,50017 exempt positions spread across

various state departments.

The Exempt Positions Amendments modify the NCHRA in two ways at issue

here. First, the governor’s allowance of exempt positions was reduced to 425.

Amended Complaint, ¶ 103; Session Law 2016-126, § 7. Second, a provision was

added relating to the re-designation of exempt positions to non-exempt:

(2c) Changes in Cabinet Department Exempt Position Designation.—If the status of a position designated exempt pursuant to subsection (d)(1) of this section is changed and the position is made subject to the provisions of this Chapter, an employee occupying the position who has been continuously employed in a permanent position for the immediate 12 preceding months, shall be deemed a career State employee as defined by G.S. 126–1.1(a) upon the effective date of the change in designation.

Session Law 2016-126, § 8. The effect of this provision is to allow an employee in an

exempt position who had served long enough to qualify as a career State employee

under N.C. Gent. Stat. § 126-1.1(a), could receive “credit” for time served and

become a career State employee upon the re-designation of the employee’s position.

B. Plaintiff’s Separation of Powers Argument Fails as a Matter of Law.

Plaintiff’s separation of powers claim is based on his allegations (a) that the

Exempt Positions Amendments allowed Governor McCrory to re-designate

employees he hired and “embed” them in Governor Cooper’s administration and (b)

17 As Plaintiff acknowledges, this number has fluctuated over time. Amended Complaint, ¶ 103. It was at this same level during the tenure of Governor James B. Hunt, a Democrat. Stott v. Haworth, 916 F.2d 134, 137 n. 2 (4th Cir. 1990).

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149/384 that these supposed sleeper agents “could materially interfere with Governor

Cooper’s constitutional duty to see that the laws are faithfully executed.” Amended

Complaint, ¶¶ 106, 109, 115 (emphasis added). Plaintiff’s legal theory has never

been recognized under North Carolina law, nor should it be in this case. Plaintiff’s

allegations cannot establish beyond a reasonable doubt - as Plaintiff must, for his

facial constitutional challenge18 - that the Exempt Positions Amendments violate

the separation of powers.

Plaintiff’s separation of powers claim fails as a matter of law because the

harm he has identified is too speculative and uncertain to meet the standard for a

facial constitutional challenge (i.e., proving unconstitutionality beyond a reasonable

doubt). Plaintiff complains about what the General Assembly has allowed Governor

McCrory19 to do and about what might happen as a result, but Plaintiff has not identified a single instance of actual harm to his ability to execute the laws faithfully.

Even taking the facts of this case in the light most favorable to Plaintiff, it is impossible for Plaintiff to prove - beyond a reasonable doubt, as Plaintiff must on this facial constitutional challenge—that the Exempt Positions Amendments

18 See State v. Bryant, 359 N.C. at 564, 614 S.E.2d at 486 (“An individual challenging the facial constitutionality of a legislative act ‘must establish that no set of circumstances exists under which the [a]ct would be valid.’”). 19 Plaintiff has not cited any authority for his novel theory that the General Assembly, by giving power to one governor, can infringe on another governor’s power in a way that violates the separation of powers clause of North Carolina’s Constitution. While Defendants believe Plaintiff’s novel position to be untenable, this Court need not reach the issue, as Plaintiff’s claim fails because of other deficiencies under established law.

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150/384 unconstitutionally infringe on Plaintiff’s power to execute the laws faithfully. The

keystone of Plaintiff’s argument is that the employees converted from exempt to

non-exempt positions by Governor McCrory (the “Converted Employees”) “could

materially interfere with Governor Cooper’s constitutional duty to see that the laws

are faithfully executed.” Amended Complaint, ¶ 109 (emphasis added).20 North

Carolina law does not permit courts to strike down acts of the General Assembly,

upon a facial challenge, simply because the action might be unconstitutional in

some instances and under certain circumstances. See State v. Bryant, 359 N.C. at

564, 614 S.E.2d at 486. Plaintiff, therefore, is essentially asking this Court to

conclude, as a matter of law, that the Converted Employees will inevitably, and

with no room for reasonable doubt, subvert Plaintiff’s administration. The temerity

of such a request is remarkable, particularly given Plaintiff’s reticence to allege

directly such a certain result.

Notably, the three cases cited by Plaintiff in the Amended Complaint

regarding exempt positions under the NCHRA were brought by former employees

challenging their terminations as violative of their constitutional or statutory

rights. See Elrod v. Burns, 427 U.S. 347, 347, 96 S.Ct. 2673, 2676–77, 49 L.Ed.2d

547 (1976) (former employees sought to bring class action alleging they were fired

based on their political affiliation, in violation of, inter alia, the First and

Fourteenth Amendments to the U.S. Constitution); Carrington v. Brown, 136 N.C.

20 Plaintiff’s only past-tense, concrete allegation regarding the Exempt Positions Amendment is that, subsequent to the enactment of the Exempt Positions Amendments, Governor McCrory acted to convert over 900 formerly-exempt positions into non-exempt positions. Amended Complaint ¶¶ 107-108.

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151/384 App. at 556, 525 S.E.2d at 232 (former employee brought action alleging he was

unlawfully terminated in violation of the NCHRA and Article I, § 19 of the North

Carolina Constitution); Stott v. Haworth (“Stott II”), 916 F.2d 134, 137 (4th Cir.

1990) (former employees sought to bring class action alleging they were fired based

on their political affiliations, in violation of the First Amendment to U.S.

Constitution). Plaintiff, by contrast, appears to be the first governor in our State’s

history to bring suit asserting a constitutional right to fire hundreds of North

Carolinians based on their political affiliations.

Although Plaintiff is claiming the right to fire hundreds of North Carolinians

for political reasons and, therefore, demands that they be stripped of their civil

service protections under the NCHRA, he has not provided the necessary detail to

prove that firing the Converted Employees would be permissible under other

applicable law. When reviewing whether political firings (or “patronage

dismissals”) are permissible, courts conduct a searching and complex inquiry about

each individual position. Stott II, 916 F.2d at 141 (“The inquiry must focus on the

claim of the individual.”). Indeed, so individualized is this inquiry that federal

courts have evinced a “reluctance to consider these matters in class actions.” Id. at

145. Such an individualized approach stands to reason, because “the critical and dispositive question is whether a particular position is one that requires, as a qualification for its performance, political affiliation.” Id. at 143.

This critical question is not a simple one and requires the application of a two-part test. First, the court must determine “whether the position at issue, no

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152/384 matter how policy-influencing or confidential it may be, relates to ‘partisan political interests … [or] concerns.’” Stott II, 916 F.2d at 141 (citing Jimenez Fuentes v.

Torres Gaztambide, 807 F.2d 236, 241–42 (1st Cir.1986) (en banc), cert. denied, 481

U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987)). If the first prong is met, “the next step is to examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement.” Id. at 142 (citing Fuentes, 807

F.2d at 241-42). The application of these two prongs in turn requires inquiry into a number of other factors and in-depth analyses of the relevant cases. See, e.g., Stott v. Martin (“Stott III”), 783 F. Supp. 970, 976 (E.D.N.C. 1992) (“Among the indicia relevant to this second inquiry are: relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.”) (citation and internal punctuation omitted).

Plaintiff has not shown that the 900+ employees he wants to fire will meet the standard described in Stott II. He has provided no evidence about the duties, or even the titles, of these positions. His insinuations about the intent of the General

Assembly and suggestions of collusion with Governor McCrory are not enough to carry the day here; a governor may permissibly reduce the number of exempt positions in order to comply with a statutory cap on exempt positions or when the positions designated as exempt should not have been so designated in the first

- 64 -

153/384 place. Stott II, 916 F.2d at 143 n. 11 (4th Cir. 1990). Thus, Plaintiff’s allegations do not establish beyond a reasonable doubt that, even if he receives his requested relief

(i.e., stripping the Converted Employees of their NCHRA protections), he will be able to accomplish his asserted goal (i.e., firing them based on their political affiliations).

Another shortcoming of Plaintiff’s claim is that he offers no explanation for how the Converted Employees would accomplish the imagined sabotage campaign against his administration. Even as career State employees, the Converted

Employees can be fired for just cause. See N.C. Gen. Stat. § 126-35(a). “There are two grounds for just cause: (1) unsatisfactory job performance, and (2) unacceptable personal conduct.” Boggs v. N.C. Dep't of Envtl. Quality, ___ N.C. App. ___, 791

S.E.2d 905 (2016) (unpublished). “Unacceptable personal conduct” includes insubordination, as well as “conduct unbecoming of a state employee that is detrimental to state service.” 25 N.C. Admin. Code 1J.0614(7), (8)(e). Plaintiff has neither alleged nor offered evidence of any facts to show why his administration would be unable to dismiss any Converted Employees who engage in any subversive or insubordinate behavior. Without such facts, Plaintiff cannot hope to prove that his ability to faithfully execute the laws has been infringed upon by the Converted

Employees, and Plaintiff’s separation of powers claim, therefore, fails as a matter of law.

In sum, there is insufficient evidence to establish, under Plaintiff’s asserted theories, that the Exempt Positions Amendments are unconstitutional beyond a

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154/384 reasonable doubt.

C. Plaintiff’s Exclusive Emoluments Claim Fails as a Matter of Law Because Plaintiff Lacks Standing and the Challenged Emoluments Serve a Public Purpose.

Plaintiff claims that the Exempt Positions Amendments violate the exclusive emoluments clause, but Plaintiff lacks standing to bring such a claim. “Only those persons may call into question the validity of a statute who have been injuriously affected thereby in their persons, property or constitutional rights.” Goldston v.

State, 361 N.C. 26, 35, 637 S.E.2d 876, 882 (2006) (emphasis in original) (quoting

Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C. 155, 166, 123 S.E.2d 582, 589

(1962)). “The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Id. at

30, 637 S.E.2d at 879.

Plaintiff has not been “injuriously affected” by the Exempt Positions

Amendments because he does not have the requisite “personal stake in the outcome of the controversy.” The specific emolument challenged by Plaintiff is the “benefit of career status” that may be bestowed on a subset of State employees, but Plaintiff does not claim the benefit should instead be conferred upon him personally. See

Amended Complaint, ¶ 114. Exclusive emoluments challenges are supposed to be brought by a party who has a personal claim to the benefit that has been conferred

- 66 -

155/384 on another.21 For example, in Crump v. Snead, 134 N.C. App. at 354, 517 S.E.2d at

385–86 (1999), the General Assembly enacted Senate Bill 540, which deleted the

provision in the Rockingham City Charter requiring one seat on the city council to

be for a two-year term, making all the seats on the city council four-year terms.

This change applied retroactively, thereby having the effect of extending the term of

defendant June Snead from two to four years. Gwyn Leach Sowders, who had

expressed interest in filing for the two-year seat in the next election, brought a

declaratory judgment action alleging that the law was unconstitutional. Similarly,

in Penny v. Salmon, 217 N.C. 276, 7 S.E.2d 559, 560 (1940), a would-be candidate

challenged the constitutionality of a statute passed by the General Assembly that

extended the term of the Harnett County Register of Deeds. Unlike Plaintiff, the

plaintiffs in these cases did have a personal claim to the benefit conferred on

another. Because Plaintiff lacks any personal interest in the career status benefit,

he lacks standing for his exclusive emoluments challenge to the Exempt Positions

Amendments, and this claim fails as a matter of law.

Even if Plaintiff had standing, Plaintiff could not prove beyond a reasonable

doubt - as he must, for a facial constitutional challenge - that the Exempt Positions

Amendments violate the exclusive emoluments clause, which provides that “[n]o

person or set of persons is entitled to exclusive or separate emoluments or privileges

from the community but in consideration of public services.” N.C. Const. art. I, § 32.

21 The other basis for exclusive emoluments challenges, taxpayer standing, does not apply here because Plaintiff is bringing suit only in his official capacity, not as an individual taxpayer. - 67 -

156/384 “The constitutional limitation contained in § 32 has often been invoked by the

Supreme Court to strike down legislation conferring special privileges not in

consideration of public service.” Crump v. Snead, 134 N.C. App. at 357, 517 S.E.2d

at 387 (1999) (citing Brumley v. Baxter, 225 N.C. 691, 696, 36 S.E.2d 281, 285

(1945)). “However, when the legislation is for a public purpose and in the public

interest, and does not confer exclusive privilege, it has been upheld.” Id.

Our Supreme Court has held that an item will not be considered an exclusive emolument within the meaning of § 32 if the statute meets two requirements: “(1) the exemption [or benefit] is intended to promote the general welfare rather than the benefit of the individual, and (2) there is a reasonable basis for the legislature to conclude the granting of the exemption [or benefit] serves the public interest.”

Crump v. Snead, 134 N.C. App. at 357, 517 S.E.2d at 387 (1999) (citing Town of

Emerald Isle v. State, 320 N.C. 640, 654, 360 S.E.2d 756, 764 (1987)).

Even in the light most favorable to Plaintiff, the evidence in this case permits

the inference that the Exempt Positions Amendments serve the public interest. The

benefit conferred on the Converted Employees by the Exempt Positions

Amendments is that they become22 career State employees, meaning Plaintiff

cannot fire them without just cause pursuant to the NCHRA. See N.C. Gen. Stat. §

126-35(a). Three facts establish that this benefit is not exclusive or intended to

22 Plaintiff alleges only that the Converted Employees were designated as non- exempt. Amended Complaint, ¶¶ 107-108. Plaintiff does not specify whether any of the Converted Employees had previously served in their position for “the immediate 12 preceding months” and thereby became career State employees. See N.C. Gen. Stat. § 126-5(d)(2c); Amended Complaint, ¶ 98. Defendants assume, arguendo, that at least one of the Converted Employees became a career State employee.

- 68 -

157/384 benefit a particular individual. First, it is conditioned on twelve months’ prior

service by each Converted Employee, just like any other career State employee. See

N.C. Gen. Stat. § 126-1.1(a). Second, Plaintiff is claiming the benefit has been conferred on over 900 Converted Employees, which raises serious questions about its exclusivity. Third, the benefit is not even limited to that multitude of Converted

Employees. If Plaintiff were to re-designate any exempt positions in the future, the

Exempt Positions Amendments would apply to the employees in those positions as readily as to the Converted Employees.

Plaintiff’s facial challenge requires him to prove beyond a reasonable doubt that the Exempt Positions Amendments confer exclusive emoluments upon the

Converted Employees in violation of the North Carolina Constitution. For the reasons given above, the available facts show that Plaintiff lacks standing to bring this claim. In the alternative, the available facts provide a reasonable basis to conclude that the Exempt Positions Amendments do not confer exclusive emoluments upon the Converted Employees. Plaintiff’s facial challenge, therefore, fails as a matter of law.

CONCLUSION

For the foregoing reasons, Plaintiff’s claims related to the creation of the

Bipartisan Board in Part I of Session Law 2016-125; the advice and consent provision in Part III of Session Law 2016-126; and the Exempt Positions

Amendments in Sections 7, 8, and 33 of Part I of Session Law 2016-126 (to the extent Plaintiff relies on the Exclusive Privileges Clause of the North Carolina

- 69 -

158/384 159/384 160/384 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 16 CVS 15636

ROY A. COOPER, III, in his capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA

Plaintiff, vs. APPENDIX PHILIP E. BERGER, in his official TO DEFENDANTS’ BRIEF capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; TIMOTHY K. MOORE, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,

Defendants.

1. Allen, Arch T., III, A Study in Separation of Powers: Executive Power in North Carolina, 77 N.C.L. Rev. 2049 (September 1999)

2. John V. Orth, “Forever Separate and Distinct”: Separation of Powers in North Carolina, 62 N.C.L. Rev. 1 (October 1983)

3. John L. Sanders, Our Constitutions: An Historical Perspective

4. Thad L. Beyle, The Powers of the Governor in North Carolina: Where the Weak Grow Strong*--Except for the Governor, N.C. Insight (March 1990)

5. Boggs v. N.C. Dep’t of Envtl. Quality, ___ N.C. ___, 791 S.E.2d 905 (2016)(unpublished)

6. Affidavit of Kim Westbrook Strach

7. Affidavit of D. Martin Warf

161/384 162/384 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

September, 1999

Reporter 77 N.C.L. Rev. 2049 *

Length: 35989 words

Author: Arch T. Allen, III *

* Member, Allen & Moore, L.L.P., Raleigh, North Carolina. B.S. 1962, J.D. with honors, 1965, University of North Carolina at Chapel Hill. The author was counsel of record in three of the principal cases discussed in this article, State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (representing Governor James G. Martin); Stott v. Martin ("Stott I"), 725 F. Supp. 1365 (E.D.N.C. 1989), rev'd sub nom. Stott v. Haworth ("Stott II"), 916 F.2d 134 (4th Cir. 1990), on remand, Stott v. Martin ("Stott III"), 783 F. Supp. 970 (E.D.N.C. 1992) (representing Secretary of Commerce Claude E. Pope and his successor, James T. Broyhill); and Republican Party of North Carolina v. Martin, 136 F.R.D. 421 (E.D.N.C. 1991) (representing Governor James G. Martin regarding discovery only), aff'd in part, rev'd in part, 980 F.2d 943 (4th Cir. 1992), cert. denied, 510 U.S. 828 (1993), on remand, 841 F. Supp. 722 (E.D.N.C. 1994), aff'd, No. 94-1057, 1994 WL 265955 (4th Cir. June 17, 1994). See infra notes 207-41, 300-27, 330-56, and 365-77 and accompanying text. The author expresses his appreciation for the advice in the preparation of this article of James R. Trotter, John V. Orth, and Martin H. Brinkley. The views expressed are solely those of the author, and all matters discussed are of public record.

Text [*2050]

"The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other."

--North Carolina Constitution Article I, section 6. "The executive power of the State shall be vested in the Governor."

--North Carolina Constitution Article III, section 1.

INTRODUCTION

Since the American states declared their independence in 1776, the North Carolina Constitution has proclaimed the primacy of the doctrine of separation of powers. 1 The doctrine had influenced pre-independence political philosophy, including the limited-government theory of John Locke. 2 Montesquieu emphasized and expanded the [*2051] doctrine, warning that if "the legislative and executive powers are united … there can be no liberty." 3 Both Locke's political philosophy of limited government and Montesquieu's maxim for maintaining liberty influenced the founding fathers, especially James Madison, who

1 See N.C. Const. art. I, 6; State ex rel. Wallace v. Bone, 304 N.C. 591, 595, 286 S.E.2d 79, 81 (1982); John V. Orth, "Forever Separate and Distinct": Separation of Powers in North Carolina, 62 N.C. L. Rev. 1, 3 (1983).

2 See Martin H. Redish & Elizabeth J. Cisar, "If Angels Were To Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 Duke L.J. 449, 457 & n.31, 459-60 (1991).

3 1 Montesquieu, The Spirit of Laws 152 (Thomas Nugent trans., 1823) (1748). 163/384 Page 2 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA warned that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." 4 The Supreme Court has also echoed "the famous warning of Montesquieu, quoted by James Madison in The Federalist No. 47, that " "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." ' " 5 Accordingly, the doctrine of separation of powers has become fundamental to American constitutionalism, both state and federal, and has become a "Classical American Doctrine." 6

Madisonian principles permeate the North Carolina and Federal Constitutions. To understand why the resulting governmental bureaucracies act as they do, one should turn to The Federalist No. 51, 7 where Madison proclaimed the underlying principles of separation of powers:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. 8

The concept of a "unitary" executive was central to Madison's [*2052] advocacy of separation of powers. 9 Madison's views prevailed in the structure of the federal government, in which the executive power is vested in an elected president, 10 who has the power to appoint other executive officers. 11 North Carolina, however, has never applied completely the concept of a unitary executive. The early North Carolina proclamation of separation of powers exemplified what Madison saw as ineffective "paper" separation between the branches of government. 12 Madison's criticism of the state's provision for legislative election of the governor and appointment of other officers demonstrates that the North Carolina proclamation exaggerated its actual application. 13

This Article discusses the differences between the proclamation of separation of powers in the North Carolina Constitution and its application to the state's executive from 1776 to the present. Part II summarizes the state's constitutional history, while Part III details some case-law applications of the doctrine of separation of powers. The Article then focuses in Parts IV and V on the executive power, especially the governor's ability to execute the laws through subordinates selected by him and acting under his direction. Sometimes these subordinates are statutory "officers" exercising some of the sovereign power of the state; sometimes they are simply state employees. 14 In either status, they are part of the modern state [*2053] governmental bureaucracy. In

4 The Federalist No. 47, at 329 (James Madison) (Tudor Publishing Co. 1937).

5 Bowsher v. Synar, 478 U.S. 714, 721-22 (1986) (quoting The Federalist No. 47, supra note 4, at 331 (quoting Montesquieu)). 6 Malcolm P. Sharp, The Classical American Doctrine of "The Separation of Powers," 2 U. Chi. L. Rev. 385, 385 (1935).

7 See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 28 (1989). Madison's eighteenth century writings continue to be a relevant source of modern separation-of-powers dialogue. In recent years, "no major Supreme Court opinion or law review article on the separation of powers has failed to enlist Madison or Madison's Federalist in the contemporary battle for the separation of powers." Victoria Nourse, Toward a "Due Foundation" for the Separation of Powers: The Federalist Papers as Political Narrative, 74 Tex. L. Rev. 447, 449-50 (1996). 8 The Federalist No. 51, at 353 (James Madison) (Tudor Publishing Co. 1937). 9 See The Federalist No. 47, supra note 4, at 329-37.

10 See U.S. Const. art. II, 1, cl. 1. 11 See id. art. II, 2, cl. 2. 12 See The Federalist No. 47, supra note 4, at 336-37. 13 See Orth, supra note 1, at 5.

14 The term "officer" is broadly defined and generally refers to one exercising some portion of the sovereign power of the state. See, e.g., Simeon v. Hardin, 339 N.C. 358, 371-72, 451 S.E.2d 858, 867-68 (1994) (holding that district attorneys are constitutional officers); State v. Camacho, 329 N.C. 589, 593, 406 S.E.2d 868, 870 (1991) (holding that district attorneys are "independent constitutional officers"); Smith v. 164/384 Page 3 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Part VI, the Article concludes with proposals for further constitutional consolidation of the state's executive power in the governor.

North Carolina adopted a new constitution in 1971 that included provisions vesting the state's executive power in the governor 15 and authorizing gubernatorial appointment of "officers whose appointments are not otherwise provided for." 16 The state still suffers, however, from the governor's sharing of some executive power with other elected officers and from the legislature's potential control over the appointment of other executive officers. To fulfill the state constitution's proclamation of separation of powers, North Carolina needs further constitutional reform to effect a unitary executive. Before proposing some reforms, however, we should first understand the current constitutional provisions and trace their history.

I. HISTORICAL PERSPECTIVE

A. Independence and the North Carolina Constitution

The North Carolina Constitution of 1776 provided that "all political power is vested in, and derived from, the people only" 17 and that "the legislative, executive and supreme judicial powers of government, ought to be forever separate and distinct from each other." 18 Nevertheless, the state's first constitution, like other new states' constitutions, limited the executive power because of colonial aversion to the Crown and its magistrates. 19 After the North Carolina [*2054] Constitution of 1776 was adopted, a delegate to the constitutional convention illustrated this aversion to executive power by "declaring that the power given the governor was "just enough to sign the receipt for his salary.' " 20

The early experience in North Carolina and other states " "evinced a powerful tendency in the legislature to absorb all power into its vortex.' " 21 The legislature not only elected the governor, 22 but also elected a seven-person Council of State to

State, 289 N.C. 303, 307-08, 222 S.E.2d 412, 416 (1976) (holding that a superintendent of a state hospital is an employee, not an "officer"); State ex rel. McCollough v. Scott, 182 N.C. 865, 870, 109 S.E. 789, 792 (1921) (holding that members of the State Board of Accountancy are "officers"); State ex rel. Attorney General v. Knight, 169 N.C. 333, 337-45, 85 S.E. 418, 420-24 (1915) (holding that a notary public is an "officer"); State ex rel. Wooten v. Smith, 145 N.C. 476, 477, 59 S.E. 649, 650 (1907) (holding that a public administrator of a county is not an "officer") (In the Southeastern Reporter, this case is entitled State ex rel. Wootton v. Smith.); State ex rel. Wood v. Bellamy, 120 N.C. 212, 224, 27 S.E. 113, 116 (1897) (holding that directors of a state hospital are "officers"); People ex rel. Welker v. Bledsoe, 68 N.C. 457, 463-64 (1873) (holding that directors of the state penitentiary are "officers"); People ex rel. Nichols v. McKee, 68 N.C. 429, 434-38 (1873) (holding that directors of a state institution are "officers"); State ex rel. Clark v. Stanley, 66 N.C. 60, 67 (1872) (holding that state-appointed directors of corporations in which the state is a shareholder are "officers"). 15 See N.C. Const. art. III, 1. 16 Id. art. III, 5, cl. 8. 17 N.C. Const. of 1776, Declaration of Rights 1. 18 Id. Declaration of Rights 4. Prior to ratification of the United States Constitution, the North Carolina Supreme Court recognized the principle of separation of powers in the first reported case that upheld the doctrine of judicial review and the supremacy of the constitution over a statute. See Bayard v. Singleton, 1 N.C. (Mart.) 5, 6-7 (1787); see also Orth, supra note 1, at 7 (discussing the importance of Bayard).

19 See Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860, at 89-91 (W.W. Norton & Co. 1966) (1930); John V. Orth, The North Carolina State Constitution 3-4 (1993); William S. Powell, North Carolina Through Four Centuries 186-87 (1989); John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 Temp. L. Rev. 1205, 1224-35 (1993). Testifying in favor of gubernatorial veto in 1985, Governor James G. Martin said, " "I understand the eighteenth century concern about Royal Governors… They are not coming back: We have not had a Royal Governor for 209 years. We won!' " Ran Coble, Executive-Legislative Relations in North Carolina: Where We Are and Where We Are Headed, 25 Wake Forest L. Rev. 673, 674 (1990) (quoting James G. Martin).

20 Bennett M. Rich, State Constitutions: The Governor 2 (1960) (citing Leslie Lipson, The American Governor from Figurehead to Leader 14 (1939)).

21 Sam J. Ervin, Jr., Separation of Powers: Judicial Independence, Law & Contemp. Probs., Winter 1970, at 108, 113 (quoting James Madison).

22 See N.C. Const. of 1776, 15 (providing for the governor to serve a one-year term). 165/384 Page 4 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

"advise the governor in the execution of his office." 23 Some of the governor's prescribed powers were predicated on the advice of the Council of State. 24 The legislature also appointed the treasurer, 25 attorney general, and judges. 26 The governor's appointment power was limited to filling vacancies during legislative recesses and then only with the advice of the Council of State. 27 Consequently, Madison complained that, despite the proclaimed separation of powers, North Carolina's constitution referred to the legislature the power to appoint the chief executive and the other principal executive officers, as well as all judicial officers. 28

Madison's concerns over separation of powers are reflected in the United States Constitution. 29 After debates at the Constitutional Convention, Madison's conception of separation of powers and executive independence prevailed, resulting in a single executive elected separately from the Congress. 30 The executive independently executes the laws primarily through appointees, and the executive's appointment power is recognized explicitly. 31 The Appointments Clause provides for presidential appointment of officers of the United States, subject to the Senate's advice and consent, with a provision for appointment of "inferior" officers by the President, the judiciary, or [*2055] the heads of executive departments. 32 As later explained by Madison, "if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." 33

After ratification of the United States Constitution, the issue of appointment power continued to attract attention in connection with the drafting of some states' constitutions. 34 Thomas Jefferson, who wrote extensively on the subject of separation of powers and drafted the original separation-of-powers provision in Virginia's constitution, 35 wrote, " "Nomination to office is an executive function. To give it to the legislature, as we do [in Virginia], is a violation of the principles of division of powers.' " 36 At that time in Virginia and in America generally, state legislatures dominated. As Alexis de Tocqueville noted, "The legislative bodies daily encroach upon the authority of the governor and their tendency … is to appropriate it entirely to themselves." 37

North Carolina amended its constitution in 1835 in response to dissatisfaction with the legislative representation system and persistent reform efforts; the changes included a provision for the popular election of the governor for a two-year term. 38

23 Id. 16 (providing for each member of the Council of State to serve a one-year term). 24 See id. 19.

25 See id. 22. 26 See id. 13. 27 See id. 20. 28 See The Federalist No. 47, supra note 4, at 336. 29 See Sharp, supra note 6, at 406-11.

30 See id. at 423-24. 31 See id. at 425-27.

32 See U.S. Const. art. II, 2, cl. 2. 33 1 Annals of Cong. 463 (Joseph Gales ed., 1789) (statement of Rep. Madison).

34 See Green, supra note 19, at 83.

35 See Thomas Jefferson, Draft of a Constitution for Virginia (1783), reprinted in The Complete Jefferson 111 (Saul K. Padover ed., 1943); Sharp, supra note 6, at 396-97, 417.

36 State ex rel. Jameson v. Denny, 21 N.E. 252, 254 (Ind. 1889) (quoting Letter from Thomas Jefferson to Samuel Kercheval (July 16, 1816)).

37 Alexis de Tocqueville, Democracy in America 110-12 (Century Co. ed., 1898), quoted in Rich, supra note 20, at 3.

38 See Green, supra note 19, at 224-33; Hugh Talmage Lefler & Albert Ray Newsome, North Carolina: The History of a Southern State 332, 337-38 (rev. 1963). 166/384 Page 5 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

These constitutional amendments represented "a turning point in North Carolina history" 39 and the beginning of the state's modernization. 40 Efforts for additional state reform occurred in the 1850s, 41 but failed before secession from the Union. 42 The Civil War then dominated the state and the nation. 43

[*2056]

B. Reconstruction and a New Constitution

During post-Civil War Reconstruction, the Constitutional Convention of 1868 proposed a new state constitution, which became the first of the state's constitutions ratified by the people. 44 The new Republican Party's members dominated the convention, wrote the new constitution, and advocated its ratification. 45 The Republican Party's members included former Whigs, "carpetbaggers," and newly emancipated and enfranchised black citizens. 46 Although the party's reign was brief, it had long-term effects on the state, both through the reforms in the Constitution of 1868, 47 which had been rejected by both antebellum political parties, and the reactionary repudiation of subsequent reform efforts by the Democratic-Conservatives after the Republicans were ousted from power. 48

The Constitution of 1868 strengthened the executive by providing for popular election of the governor to a four-year term with expanded powers. 49 It also provided for popular election of the state's lieutenant governor, secretary of state, auditor, treasurer, [*2057] superintendent of public works, superintendent of public instruction, and attorney general. 50 The lieutenant

39 Lefler & Newsome, supra note 38, at 338.

40 See Archie K. Davis, The Veil of Humility, 51 N.C. Hist. Rev. 201, 209-12 (1974).

41 See Green, supra note 19, at 265-72; Thomas E. Jeffrey, Beyond "Free Suffrage": North Carolina Parties and the Convention Movement of the 1850s, 62 N.C. Hist. Rev. 387, 400-18 (1985).

42 See Powell, supra note 19, at 334-48 (describing the political climate in North Carolina preceding the Civil War). 43 See generally James M. McPherson, Battle Cry of Freedom: The Civil War Era (1988) (providing a history of the Civil War).

44 See Lefler & Newsome, supra note 38, at 461; see also Richard L. Zuber, North Carolina During Reconstruction 14-17 (1975) (discussing changes made by the Constitution of 1868).

45 See Zuber, supra note 44, at 12-18. 46 See William C. Harris, William Woods Holden: Firebrand of North Carolina Politics 219-20 (1987). The Republican Party of North Carolina was founded in 1867 by William W. Holden, the most influential and controversial North Carolinian of the Reconstruction era; James H. Harris, a black Holden supporter; and others. See id. at 218-22.

47 While many convention delegates were Whigs prior to the Civil War, "the new constitution was not the handiwork of either of the old parties but was, instead, the product of the recently organized Republican party." Jeffrey, supra note 41, at 419. The most detailed account of the Convention of 1868 is said to be J.G. de Roulhac Hamilton, Reconstruction in North Carolina (1914). See Jeffrey, supra note 41, at 419 n.73. For a more recent and more sympathetic account, see Otto H. Olsen, Carpetbagger's Crusade: The Life of Albion Winegar Tourgee 93- 115 (1965) [hereinafter Olsen, Carpetbagger's Crusade]. One scholar says that Convention delegate David Heaton, a former Ohio state senator who settled in New Bern, "played the major role" in writing the Constitution. Horace W. Raper, William W. Holden: North Carolina's Political Enigma 289 n.57 (1985). Another scholar notes that Albion W. Tourgee, a former Ohio lawyer who settled in Greensboro, "exerted more influence in open debate" than any other delegate. Otto Olsen, Albion W. Tourgee: Carpetbagger, 40 N.C. Hist. Rev. 434, 442 (1963) [hereinafter Olsen, Albion W. Tourgee]. The drafters of the Constitution of 1868 copied several provisions from Ohio's constitution. See Lefler & Newsome, supra note 38, at 460-61; see also Powell, supra note 19, at 393 (discussing the influence of Ohio's Constitution). Presumably, the drafters were aware that Ohio strictly applied separation-of-powers principles to appointments. See State of Ohio ex rel. Attorney General v. Kennon, 7 Ohio St. 546, 562-63 (1857).

48 See Jeffrey, supra note 41, at 419 & n.74. 49 See N.C. Const. of 1868, art. III, 1, 6-10. 50 See id. art. III, 1. 167/384 Page 6 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA governor became president of the senate, 51 and the duties of the other executive officers were "prescribed by law." 52 Five of those officers constituted "ex officio, the Council of State, who shall advise the Governor in the execution of his office," and the Attorney General was "ex officio, the legal adviser of the Executive Department." 53 The Executive Department consisted of those officers and the governor, who was "vested [with] the Supreme executive power of the State." 54 Significantly, a new appointments clause enhanced the separation of powers by prescribing gubernatorial appointment, with the advice and consent of the Senate, of "all officers whose offices are established by this Constitution, or which shall be created by law, and whose appointments are not otherwise provided for." 55

The first governor to exercise the new executive powers was William W. Holden. President Andrew Johnson had appointed Holden to be the state's provisional governor during Reconstruction, and Holden subsequently was elected under the new Constitution of 1868. 56 Still controversial, 57 Governor Holden declared two counties to be in insurrection, and he empowered state military forces to suppress terrorism by the Ku Klux Klan against newly emancipated and enfranchised black citizens. 58 Holden's actions caused the military arrest of many people and aroused controversy over a writ of [*2058] habeas corpus for their release. 59 Democratic-Conservatives reacted to Holden's actions by impeaching and convicting him - the first impeachment conviction of an American governor. 60 Even before his impeachment, 61 Holden's tenure as governor had been doomed when his political opponents, the antebellum Democratic-Conservatives, took control of the legislature from Holden's Republican Party in the 1870 legislative elections. 62

C. An Amended Constitution and Calls for Reform

51 See id. art. III, 11. 52 Id. art. III, 13.

53 Id. art. III, 14. 54 Id. art. III, 1.

55 Id. art. III, 10. The Constitution of 1868 contained no provision concerning removal power, which continues to be derived from statutory authority today. See Thad L. Beyle, The Powers of the Governor in North Carolina: Where the Weak Grow Strong - Except for the Governor, N.C. Insight, Mar. 1990, at 27, 34.

56 See Powell, supra note 19, at 381-85. 57 See William C. Harris, William Woods Holden: In Search of Vindication, 59 N.C. Hist. Rev. 354, 355 (1982). Through the scholarship of Professor Harris and Professor Raper, Holden has been vindicated. See generally Harris, supra note 46 (providing a biography of Holden); Raper, supra note 47 (providing a biography of Holden). Despite those scholarly vindications, Holden is still best known for his impeachment and conviction. See, e.g., Coble, supra note 19, at 675 (discussing Holden's removal from office and quoting Holden's political opponent, former Governor Zebulon B. Vance, who described Holden's impeachment trial as " "the longest hunt after the poorest hide I ever saw.' ").

58 The two counties, Alamance and Caswell, were the sight of the Ku Klux Klan's most horrific terrorism. See Zuber, supra note 44, at 27-28. These counties also "were about the only counties in the state where the Republican party had gained strength in the fall elections of 1868." Id.

59 See Harris, supra note 46, at 295-96; Raper, supra note 47, at 190-96; Zuber, supra note 44, at 28-41. The chief justice of the state supreme court issued a writ of habeas corpus and ordered its enforcement, but declined to have a sheriff serve it upon the military commander holding the prisoners. The chief justice concluded that Governor Holden had the authority to declare martial law in the two counties, but that he did not have the power to suspend the writ of habeas corpus. See Ex parte Adolphus G. Moore, 64 N.C. 802, 808-11 (1870). A federal district court issued and enforced a writ pursuant to the Habeas Corpus Act of 1867 and the Due Process Clause of the Fourteenth Amendment. See Raper, supra note 47, at 191; Zuber, supra note 44, at 39-40. One scholar has noted the irony that "the state leaders who had so adamantly opposed the adoption of the Fourteenth Amendment and Radical Reconstruction legislation generally were now using both to oppose Governor Holden, the early advocate of each in North Carolina." Raper, supra note 47, at 320 n.119.

60 See Powell, supra note 19, at 400.

61 For historical examinations of Governor Holden's impeachment and conviction, see Harris, supra note 46, at 299-308; Raper, supra note 47, at 199-223.

62 See Zuber, supra note 44, at 41. 168/384 Page 7 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Once the Democratic-Conservatives acquired sufficient power, they reacted to Reconstruction and its constitutional reforms by initiating the Constitutional Convention of 1875. 63 The Democratic-Conservatives rallied behind racial politics and their desire to return political control to "the white ruling classes of ante bellum days." 64 Despite their appeals to racial prejudice, the Democratic-Conservatives hardly had a mandate to amend the constitution. The election of convention delegates was closer than any other election in the state's history, with a few more total votes cast for the Republicans. 65 The two parties each sent fifty-eight elected delegates [*2059] to the convention, and three independent delegates attended as well. 66 Had Republicans won a majority of delegates, "they would have adjourned the convention permanently." 67 Because there was such a narrow margin favoring revision, Republicans were able to minimize the reactionary revision of the constitution. 68 Later, in an obvious exaggeration, the state supreme court implied that the narrow margin favoring revision reflected "the dominant sentiment in the State." 69 Nevertheless, even after the 1875 amendments, the Constitution of 1868 remained the basic law of the state, and the amendments' principal effect was to restore much of the former power of the general assembly. 70

Part of that restoration of pre-1868 power to the General Assembly resulted from the amendment of the appointments clause, which effectively emasculated gubernatorial appointment power. The Democratic-Conservatives' amendment of the 1868 appointments clause was not based upon a principled objection to gubernatorial appointment power. Rather, it reflected a legislative grasp for power that may have reflected racial animus arising from Republican gubernatorial appointment of blacks to some offices. 71 Without official explanation, the 1868 appointments clause was amended by the deletion of a restrictive phrase regarding statutory officers. 72 As a result, the appointments clause only applied to constitutional officers whose appointments were not otherwise provided for; since there were none, the clause was rendered meaningless. 73

63 See Lefler & Newsome, supra note 38, at 470-71; Powell, supra note 19, at 404. 64 William D. Harris, The Movement for Constitutional Change In North Carolina, 1868-1876, at 40 (1932) (unpublished M.A. thesis, University of North Carolina at Chapel Hill) (on file with Davis Library at the University of North Carolina at Chapel Hill).

65 See Lefler & Newsome, supra note 38, at 471; Powell, supra note 19, at 404; Zuber, supra note 44, at 49; Harris, supra note 64, at 49. The Ku Klux Klan undoubtedly contributed to the closeness of the election. It terrorized and murdered blacks and white Republicans. See Zuber, supra note 44, at 25-28. However, the Klan's top priority was "weakening the Republican party." Id. at 25. The North Carolina Klan "grew in strength as soon as the Republicans came into power and disappeared soon after the Conservatives regained control of the legislature" in 1870. Id. at 27.

66 See Zuber, supra note 44, at 49. 67 Id. 68 See Olsen, Albion W. Tourgee, supra note 47, at 446. One commentator has suggested that the election was marred by fraud, but did not explain the allegations. See id. The alleged fraud likely refers to objections to certain delegates being seated. See Harris, supra note 46, at 77 (describing the "numerous objections … made to certain delegates being sworn in"). The most significant objection focused on two Conservative delegates representing Robeson County. The two Conservatives had certificates from the sheriff of the county as required by statute, while two Republicans claimed to be the true delegates and presented certified returns of the precinct poll workers. See id. The Democratic-Conservatives were seated. See id. at 77-78; Olsen, Carpetbagger's Crusade, supra note 47, at 199.

69 State ex rel. Salisbury v. Croom, 167 N.C. 223, 226, 83 S.E. 354, 355 (1914).

70 See Lefler & Newsome, supra note 38, at 471; John L. Sanders, A Brief History of the Constitutions of North Carolina, in North Carolina State Government 795, 798 (1981). "Some of these amendments clearly increased the power of the legislative branch of government, giving it considerable authority over local affairs and enabling the Democratic party to regain virtual control of the state." Powell, supra note 19, at 405.

71 See Harris, supra note 64, at 22-23, 44, 46.

72 See infra note 317 (noting the deleted phrase). 73 See Constitutional Convention of 1875, Amendments to the Constitution of North Carolina 10, 41 (1875); Journal of the Constitutional Convention of the State of North Carolina, Held in 1875, at 123, 155-56, 173, 209 (1875). 169/384 Page 8 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

[*2060] After the 1875 amendments, a generation passed with little interest in further constitutional change. 74 Members of the Democratic-Conservative General Assembly, however, came to view proposals for constitutional revision as further chances to repudiate either Republican Reconstruction or subsequent Republican-Populist Fusion. 75 Moreover, although Republican-Populist Fusion enjoyed success in the 1896 election, the Democrats returned to power after the 1900 elections, and racial politics re-emerged, just as it had done in the Democratic-Conservatives' "redemption" of the state from Republican Reconstruction. 76 The 1900 elections and associated re-emergence of racial politics helped establish Democratic one-party dominance of the state for nearly a century. 77

The state supreme court decided seven cases dealing with the appointment power between 1868 and 1914. Three cases held that, under the appointments clause in the Constitution of 1868, the appointment power was executive and while the General Assembly could create statutory offices, it could not appoint the officers. 78 In four cases decided after the 1875 amendments to the appointments clause, the court held that, under the amended appointments clause, the General Assembly could create statutory offices and appoint the officers. The governor's residuary appointment power had become limited to constitutional officers - a meaningless provision since all constitutional officers' appointments were provided for in the constitution. Three of those appointment-power cases reflected [*2061] legislative-executive differences over appointments. 79 The fourth, decided in 1914, resolved a dispute between appointees of one governor and his successor. 80

Beginning only one year after the court decided the last of these appointments clause cases, five consecutive governors recommended reform. In 1915 Governor Locke Craig asserted that the governor should have appointment power for all statutory officers; he argued that the governor's responsibility for his administration required him to have the power to select his subordinates. 81 Governor Bickett, in his inaugural address in 1917, urged enactment of a law providing that all state administrative officers other than the elected Council of State officers be appointed by the governor. 82 Governor Cameron Morrison also advocated such a change and emphasized its importance for gubernatorial accountability. 83 In 1925, his successor, Governor McLean, added, " "An impression exists in some quarters that the Governor controls the administration of State government, but … this idea is erroneous… The whole effort seems to have been to create diffusion and lack of responsibility, rather than executive authority and accountability.' " 84 To enhance executive authority and accountability,

74 See Sanders, supra note 70, at 798. 75 See Jeffrey, supra note 41, at 419 n.74; Joseph F. Steelman, Origins of the Campaign for Constitutional Reform in North Carolina, 1912- 1913, 56 N.C. Hist. Rev. 396, 398 (1979).

76 In the ensuing gubernatorial election of 1876, the former Conservatives adopted the national name "Democrat," and their candidate, former Confederate Zebulon B. Vance, narrowly defeated the Republican candidate, Thomas Settle. See Powell, supra note 19, at 405. This election signified "the end of effective Republican influence in the state for many years." Id. At the time, the Democrats declared that "Vance's election [was] evidence that the state had been "redeemed' from the evil of Reconstruction." Id. at 405-06. On the national level, the 1876 election of Rutherford B. Hayes, a Republican, ended Reconstruction. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1873-1877, at 564-601 (1988).

77 See Powell, supra note 19, at 427-39. North Carolina's Democrats believed that "the state now was "safe for white rule.' " Id. at 438.

78 See People ex rel. Welker v. Bledsoe, 68 N.C. 457, 460-64 (1873); People ex rel. Nichols v. McKee, 68 N.C. 429, 432-33, 438-39 (1873); State ex rel. Clark v. Stanley, 66 N.C. 60, 63-67 (1872).

79 See State ex rel. Cherry v. Burns, 124 N.C. 761, 765, 33 S.E. 136, 137 (1899); Cunningham v. Sprinkle, 124 N.C. 638, 641-43, 33 S.E. 138, 138-39 (1899); State Prison v. Day, 124 N.C. 362, 366-67, 32 S.E. 748, 749 (1899).

80 See State ex rel. Salisbury v. Croom, 167 N.C. 223, 227-29, 83 S.E. 354, 355-56 (1914). 81 See Brookings Inst., Report on a Survey of the Organization and Administration of the State Government of North Carolina iii (1930). Governor Craig's remarks did not extend to the elected Council of State members. During this period, however, some prominent and influential citizens actively advocated they be appointed rather than elected. See Steelman, supra note 75, at 412.

82 See Brookings Inst., supra note 81, at iii. 83 See id. 84 Id. at iv (quoting Governor A.W. McLean). 170/384 Page 9 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Governor O. Max Gardner initiated a proposed "short ballot" constitutional amendment. Under his short ballot proposal, fewer executive officers would be elected. 85 The 1929 General Assembly rejected the proposal, preferring to maintain the status quo of electing eight executive officers other than the governor and lieutenant governor. 86

Faced with the Great Depression and the cry to reduce state taxes, Governor Gardner authorized investigations of state government, including a major study by the Brookings Institution. In the Brookings Institution report, Governor Gardner noted "the [*2062] diffusion of authority and responsibility in the administration of state government." 87 As Governor Gardner himself explained, the central theme of the Brookings Institution report was "unification … of control for the purpose of developing flexible responsiveness of all departments and divisions to intelligent direction." 88

To end that diffusion of authority and responsibility and to effect unification, the report recommended adoption of Governor Gardner's proposed short ballot constitutional amendment. Governor Gardner resubmitted that proposal to the General Assembly in 1931, but the legislature again rejected the short ballot. 89 Nevertheless, much of Governor Gardner's legislative program succeeded, 90 and the Brookings Institution report was an important step toward some state-government reorganization and subsequent revision of the constitution. 91

Concerning executive power, the report concluded that "the State Government is characterized by an extreme diffusion of responsibility"; the governor's "authority is so limited that it is impossible for him to exercise general control over most of the state agencies"; the governor should be "the real, as well as the nominal, head of the administration"; and for the governor to be effective he should have the power of appointment and removal over "all of the heads of the administrative departments." 92 Thus, the report recommended the creation of an executive department headed by the governor with six bureaus, including the office of governor. The governor would appoint the head of each bureau. 93

During this period of reform efforts, the General Assembly created many administrative agencies, beginning with the early occupational licensing boards. 94 Most of the enabling statutes for these agencies provided for gubernatorial appointment of the members of the agencies, thus beginning a trend toward gubernatorial appointments. 95 The trend continued with the

85 See Lefler & Newsome, supra note 38, at 571. 86 See id.

87 Brookings Inst., supra note 81, at iv. 88 Id. at v. 89 See Lefler & Newsome, supra note 38, at 573. 90 See id. at 573-74. 91 See Powell, supra note 19, at 482-84 (discussing the impact of the Brookings Institution's report).

92 Brookings Inst., supra note 81, at xxi-xxiv. 93 See id. at xxx-xxxi.

94 See Frank Hanft & J. Nathaniel Hamrick, Haphazard Regimentation under Licensing Statutes, 17 N.C. L. Rev. 1, 1-2 (1939) (discussing the licensing boards).

95 See Act of Mar. 27, 1933, ch. 179, 13, 1933 N.C. Pub. Laws 197, 199 (codified as amended at N.C. Gen. Stat. 88B-3 (1999)) (creating State Board of Cosmetic Art Examiners); Act of Mar. 19, 1929, ch. 119, 6, 1929 N.C. Pub. Laws 110, 112 (codified as amended at N.C. Gen. Stat. 86A-4 (1996)) (creating State Board of Barber Examiners); Act of Mar. 19, 1925, ch. 318, 2, 1925 N.C. Pub. Laws 591, 591 (codified as amended at N.C. Gen. Stat. 87-2 (1999)) (creating State Licensing Board for General Contractors); Act of Mar. 10, 1925, ch. 261, 11, 1925 N.C. Pub. Laws 503, 506 (codified as amended at N.C. Gen. Stat. 93-12 (1997 & Supp. 1998)) (creating State Board of Certified Public Accountant Examiners); Act of Feb. 25, 1921, ch. 1, 3, 1921 N.C. Pub. Laws 47, 47-48 (codified as amended at N.C. Gen. Stat. 89C-4 (1996 & 1998 Supp.)) (creating Board for Engineers and Land Surveyors); Act of Feb. 25, 1919, ch. 78, 3, 1919 N.C. Pub. Laws 104, 105 (codified as amended at N.C. Gen. Stat. 90-202.4 (1997)) (creating Board of Podiatry Examiners) (The original law provided for state appointment; examiners are now appointed by governor.); Act of Feb. 26, 1917, ch. 73, 1-2, 1917 N.C. Pub. Laws 129, 129 (codified as amended at N.C. Gen. Stat. 90-139 (1997)) (creating State Board of Chiropractic Examiners); Act of Mar. 9, 1915, ch. 270, 1, 1915 N.C. Pub. Laws 341, 341- 42 (codified as amended at N.C. Gen. Stat. 83A-2 (1995)) (creating Board of Architecture); Act of Mar. 9, 1915, ch. 178, 1, 1915 N.C. Pub. 171/384 Page 10 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA creation of the [*2063] Industrial Commission in 1929 and with the General Assembly's provision for gubernatorial appointment of its members. 96 In 1931, when the state began to expand economic regulation through administrative agencies by creating the Banking Commission, 97 the General Assembly provided for gubernatorial appointment of the commissioner of banks and the members of the Commission, with the advice and consent of the Senate originally required only for the commissioner's appointment. 98 The statute creating the North [*2064] Carolina Utilities Commission also provided for gubernatorial appointment subject to legislative confirmation. 99 Although North Carolina had fewer than one hundred administrative agencies in this era, its administrative bureaucracy expanded, and the number of agencies doubled within four decades. 100 During that period the Great Depression occurred, and expanded administrative bureaucracies acquired adjudicatory and rule-making functions. 101

A constitutional commission proposed general revision of the North Carolina Constitution between 1931 and 1933. The General Assembly approved the proposed revision, but an election-law technicality prevented the issue from reaching the

Laws 252, 252 (codified as amended at N.C. Gen. Stat. 90-22 (1997)) (creating the State Board of Dental Examiners, with members elected by the state association and only commissioned by the governor); Act of Mar. 4, 1909, ch. 444, 3, 1909 N.C. Pub. Laws 761, 761-62 (codified as amended at N.C. Gen. Stat. 90-116 (1997)) (creating State Board of Examiners of Optometry); Act of Mar. 8, 1907, ch. 764, 1, 1907 N.C. Pub. Laws, 1089, 1089-90 (codified as amended at N.C. Gen. Stat. 90-130 (1997)) (creating State Board of Osteopathic Examination and Registration); Act of Feb. 4, 1905, ch. 108, 5-7, 1905 N.C. Pub. Laws 118, 120 (codified as amended at N.C. Gen. Stat. 90-85.7 (1997)) (creating Board of Pharmacy); Act of Mar. 6, 1903, ch. 503, 2, 1903 N.C. Pub. Laws 861, 861-62 (codified as amended at N.C. Gen. Stat. 90- 182 (1997)) (creating Veterinary Medical Board); Act of Mar. 4, 1901, ch. 338, 1, 1901 N.C. Pub. Laws 490, 490 (codified as amended at N.C. Gen. Stat. 90-210.18 (1997)) (creating what is now known as the Board of Mortuary Science) (The original statute called the State Board of Health to appoint, but the governor now appoints).

96 See Act of March 11, 1929, ch. 120, 51, 1929 N.C. Pub. Laws 117, 136 (codified as amended at N.C. Gen. Stat. 97-77 (1991 & Supp. 1998)).

97 See Pue v. Hood, 222 N.C. 310, 314-15, 22 S.E.2d 896, 899-900 (1942) (holding that the legislature may create an administrative, investigatory, fact-finding agency, such as the Commissioner of Banks, and delegate regulatory power to it); see also Cox v. City of Kinston, 217 N.C. 391, 394-98, 8 S.E.2d 252, 256-58 (1940) (involving a grant of quasi-judicial powers to an administrative housing authority agency). Since 1962, the North Carolina Constitution has provided for vesting quasi-judicial powers in administrative agencies. See N.C. Const. art. IV, 3; State ex rel. Lanier v. Vines, 274 N.C. 486, 496-97, 164 S.E.2d 161, 167 (1968).

98 See Act of Apr. 2, 1931, ch. 243, 1, 1931 N.C. Pub. Laws 299, 299-300 (codified as amended at N.C. Gen. Stat. 53-92 (1994 & Supp. 1998)). The General Assembly now confirms the commissioner's appointment by joint resolution, while two commission members are appointed by the General Assembly and twelve by the governor. See N.C. Gen. Stat. 53-92 (1994 & Supp. 1998).

99 See Act of March 8, 1941, ch. 97, 2, 1941 N.C. Pub. Laws, 151, 151 (codified as N.C. Gen. Stat. 62-10 (1989 & Supp. 1998)).

100 See Lefler & Newsome, supra note 38, at 573; see also Report of the North Carolina State Constitution Study Commission 51-52 (1968) (discussing the need to reduce the number of agencies overseen by the governor) [hereinafter 1968 Report].

101 For a discussion of the Great Depression in North Carolina, see generally Powell, supra note 19, at 474-95. During the Depression, much of the state government was reorganized, and many new state government agencies were created. See id. at 483-84. Nationally, President Franklin D. Roosevelt and Congress responded to the Great Depression with numerous New Deal programs administered by new agencies, which have become known as the "fourth branch" of government. Cf. Daniel Yergin & Joseph Stanislaw, Commanding Heights: The Battle Between Government and the Marketplace that Is Remaking the Modern World 54-55 (1998) (discussing James Landis's work in building the federal government's "fourth branch" and his philosophy of regulation as enunciated in James Landis, The Administrative Process (1938)). For discussions of the many constitutional confrontations that occurred during this momentous period in the nation's constitutional history, see generally William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995). For discussions of the separation-of-powers implications of the expanded role of agencies, see generally Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994); Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41; Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984); Symposium, Administering the Administrative State, 57 U. Chi. L. Rev. 331 (1990); A Symposium on Administrative Law: "The Uneasy Constitutional Status of Administrative Agencies", 36 Am. U. L. Rev. 277 (1987). 172/384 Page 11 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA voters for their approval. 102 The general appointments provision, although changed editorially, would have remained essentially the same. 103 Some [*2065] proposals of the Constitutional Commission of 1932 were later adopted, but these amendments did not change the general appointment power. 104

Constitutional reform efforts abated during World War II, but resumed in the 1950s. At the request of Governor Luther H. Hodges, a constitutional commission was authorized in 1957. The commission proposed rewriting the constitution, but the General Assembly did not approve submission of the proposal to the voters. 105 Like the proposal in the early 1930s, this proposal included only minor editorial changes to the appointments clause. 106 Nevertheless, recommendations for reform continued, coming not only from Governor Hodges, but also from his successor, Terry Sanford.

While both Governors Hodges and Sanford advocated adopting a short ballot constitutional amendment, 107 Sanford separately addressed the importance of gubernatorial appointment power in the context of non-elective agencies, boards, and commissions. 108 In the 1960s, Governor Sanford recommended expanding the governor's appointment power to enhance his executive authority. 109 At the time, North Carolina had 317 independent state government entities. 110 As a result, the state experienced "fragmentation, service duplication, and program inefficiency within the executive branch," and some of its leaders recognized the need for reorganization. 111

By the 1960s, national proponents of state constitutional revision for executive and administrative reorganization uniformly advocated the short ballot. 112 Public administration theory in the 1960s favored gubernatorial appointment of the heads of executive departments and [*2066] their direct responsibility to the governor. 113 To achieve executive unity, the reformers advocated "the governor's power to appoint his principal assistants." 114 During this period, the nation experienced unprecedented "state constitutional revision and reform." 115

102 See Sanders, supra note 70, at 798; see also In re Opinions of the Justices, 207 N.C. 879, 880, 181 S.E. 557, 557-58 (1933) (stating that the constitutionally-mandated "next general election" for submission of proposed constitutional amendments to the voters had occurred before the statutorily-prescribed submission date of the 1933 proposal).

103 Compare The Report of the North Carolina Constitutional Commission 23 (1932) (authorizing the governor to "appoint all officers whose offices are established by this Constitution and for whose appointment provision is not otherwise made"), with N.C. Const. of 1868, art. III, 10 (authorizing the governor to "appoint all officers, whose offices are established by this Constitution and whose appointments are not otherwise provided for"). See generally Dillard S. Gardner, The Proposed Constitution for North Carolina: A Comparative Study, Popular Gov't, June 1934, at 1 (providing a summary comparison of the provisions).

104 See Sanders, supra note 70, at 799-801. 105 See id. 106 See Report of the North Carolina Constitutional Commission 15 (1959).

107 See Luther H. Hodges, Businessman in the Statehouse 303 (1962); Terry Sanford, Storm over the States 29 (1967).

108 See Sanford, supra note 107, at 187, 195-97. 109 See Thad L. Beyle & Robert Dalton, Appointment Power: Does It Belong to the Governor?, 54 St. Gov't 2, 3 (1981). 110 See Jim Bryan & Ran Coble, The Organization of Boards and the Powers that Drive Them, in North Carolina Center for Public Policy Research, Boards, Commissions, and Councils in the Executive Branch of North Carolina State Government 77 (1984).

111 Id. 112 See, e.g., Bennett M. Rich, The Governor as Administrative Head, in Salient Issues of Constitutional Revision 104-05 (John P. Wheeler, Jr. ed., 1961).

113 See Frank P. Grad, The State Constitution: Its Function and Form for Our Time, 54 Va. L. Rev. 928, 964 (1968).

114 Rich, supra note 112, at 107; see also Rich, supra note 20, at 31 (noting that in the 1960s, there was general agreement upon the objective of executive unity, ideally achieved by the short ballot and "increasing the governor's appointment and removal powers.").

115 Grad, supra note 113, at 928. 173/384 Page 12 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Part of that 1960s movement included revision of the Model State Constitution. Its revisers recognized that "all authorities on executive organization agree with the position embraced by the Model State Constitution for more than 40 years that administrative power and responsibility should be concentrated in a single popularly elected chief executive." 116 Accordingly, under the Model State Constitution, all executive power would be vested in the governor, and all executive and administrative offices of state government would be allocated among no more than twenty principal departments. 117 The general appointments clause provided for gubernatorial appointment and removal of the heads of all administrative departments. 118 As the revisers recognized, department heads are policy makers and should be responsible to the governor. 119

Throughout the 1960s, reformers recommended broad constitutional revision based on the argument that "governors can realize their full potential only when the entire constitutional framework within which they operate has been remodeled." 120 As a leading proponent of reform explained, "For over half a century a major reform advocated by most students of government has been the strengthening of the governor. While progress toward this goal has been made in several states, in most the governor remains chief executive more in name than in fact." 121

[*2067]

D. Constitution of 1971

As part of a "national phenomenon" of state constitutional revision, a new North Carolina Constitution Study Commission "brought into clear focus the Governor's role as chief executive." 122 Following the recommendation of Governor Dan K. Moore, the Constitution Study Commission of 1968 was created. 123 The Study Commission considered proposed constitutional amendments and characterized them as either "non-controversial" or "controversial" changes. 124 In its

116 National Mun. League, Model State Constitution 65 (6th ed. 1968). 117 See id. at 65-72. 118 See id. at 72.

119 See id. 120 Rich, supra note 20, at 33.

121 Id. at iv. There had been three earlier periods of state reorganization efforts. The first included the initial publication of the Model State Constitution in 1921; the second followed President Roosevelt's appointment of a federal commission in 1937; and the third included "little Hoover Commissions" modeled after federal executive branch studies commissioned by Presidents Truman and Eisenhower. See Sanford, supra note 107, at 42-43.

122 John L. Sanders, State Constitutional Revision, Popular Gov't, Sep. 1969, at 86, 92. That focus included the distribution to commission members of copies of a series of newspaper articles addressing the fragmentation of executive power and discussing books by former Governors Hodges and Sanford recommending unification of executive power in the governor. See Record on Appeal, Tr. 40-44, State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (No. 61PA87) (discussing Plaintiff's Exhibit 7, a series of articles by David Cooper written in the Winston-Salem Journal, which had been distributed to members of the Commission); see also supra note 107 and accompanying text (discussing the former Governors' support of the short ballot). The Commission also discussed Bennett Rich's State Constitution: The Governor. See Record on Appeal, Tr. 43-44, Melott (No. 61PA87) (referencing Plaintiff's Exhibit 7B); see also supra notes 20, 37, 114, 120-21 and accompanying text (citing Rich's book). The Commission's Subcommittee on the Executive Department was chaired by former Governor Hodges, and it recommended a short ballot amendment, administrative reorganization, and gubernatorial appointment "under general constitutional authority" of "all other heads of administrative departments and agencies." First Report of the Subcommittee of the Executive Department to the Committee on the Structure, Organization, and Powers of State Government iv, 1 (June 26, 1963). The Commission's Committee on State Government followed those recommendations as "Second Priority Amendments." See Report of the Committee on Structure, Organization, and Powers of State Government to the North Carolina State Constitution Study Commission 9 (Aug. 1, 1968). The Commission approved the short ballot proposal and part of the administrative-reorganization proposal, but referred the appointment-power proposal to its Editorial Committee. See North Carolina State Constitution Study Commission, Minutes of Meeting of Oct. 11, 1968, at 2.

123 See 1968 Report, supra note 100, at 2. 124 See Sanders, supra note 122, at 90. 174/384 Page 13 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA published report, the Commission referred to the dichotomy as "modest amendments" and "more substantial changes." 125 Within that dichotomy, the Commission's recommendations included three amendments of immediate interest.

First, the Commission recommended a "noncontroversial" general constitutional "revision and amendment." 126 The Commission recommended a rewritten constitution said to contain "few substantive changes of note" regarding the executive; 127 this proposal [*2068] contained a revised and amended appointments clause. 128 In the Commission's focus on the governor's role as chief executive, it proposed vesting in him not merely " "the Supreme executive power of the State' " as then provided, but rather " "the executive power of the State.' " 129

In a separate "controversial" amendment, the Commission proposed a short ballot whereby the number of elected executive officers, other than the governor and lieutenant governor, would be reduced from eight 130 to three. 131 The auditor, treasurer, and attorney general would continue to be elected, while other department heads would be appointed. 132 Under a separate proposal to revise the appointments clause, those officers would be appointed by the governor without Senate advice and consent. 133

The Commission also recommended a separate "controversial" amendment to reorganize the state's 200 administrative agencies into no more than twenty-five departments. 134 The Commission noted that no governor could effectively oversee the large and complex bureaucracy that then existed. 135

The General Assembly considered the Commission's recommendations in 1970. It ratified the proposed rewritten constitution and the proposed executive reorganization amendment. 136 Those two proposals were said to promise North Carolina "a thoroughly renovated Constitution and, insofar as the realities of current legislative politics will allow, a modern Constitution." 137 The General Assembly, however, did not ratify Commission proposals concerning gubernatorial succession, veto power, or the short ballot, each of which would have greatly strengthened the governor's office. 138 Gubernatorial succession and veto power were eventually implemented when political dynamics changed in the 1970s and 1990s, but the short ballot has yet to be adopted. 139

125 1968 Report, supra note 100, at 29.

126 Id. at 4, 9-26. 127 Id. at 31. 128 See id. at 14, 73; infra text accompanying notes 306-16. 129 Sanders, supra note 122, at 92 (quoting N.C. Const. of 1868, art. III, 1; 1968 Report, supra note 100, at 13). 130 See N.C. Const. art. III, 2(1); id. art III, 7(1).

131 See 1968 Report, supra note 100, at 47-49.

132 See id. at 47. 133 See id. at 47-49. 134 See id. at 51. 135 See Sanders, supra note 122, at 95.

136 See id. at 96-97. 137 Id. at 99. 138 See id. at 97.

139 See Ferrel Guillory, The Council of State and North Carolina's Long Ballot: A Tradition Hard To Change, N.C. Insight, June 1988, at 40, 44. For articles outlining the debate over the veto power, see generally J. Allen Adams & Abraham Holtzman, CON: North Carolina Should Not Adopt a Gubernatorial Veto, N.C. Insight, Mar. 1990, at 21; Jack Betts, The Veto: After Half a Century of Debate, Still on the Public Calendar, N.C. Insight, Mar. 1990, at 2; Ran Coble, PRO: North Carolina Should Adopt a Gubernatorial Veto, N.C. Insight, Mar. 1990, at 13. 175/384 Page 14 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

[*2069] Upon ratification, the proposed rewritten constitution and the proposed executive reorganization amendment became parts of the new Constitution of 1971. 140 Arguably, the 1971 amendments centered the state's executive power in its governor, subordinated the executive roles of the other members of the Council of State, and established the governor's power to appoint statutory officers serving as subordinates in the executive department. As discussed in Part IV, however, a unitary executive still eludes the state. The other elected members of the Council of State still can act independently of the governor on executive matters, and the new gubernatorial appointments clause has been emasculated, allowing the General Assembly to control appointment of some executive officers. While subsequent amendments have permitted gubernatorial succession 141 and veto, 142 the governor still shares some executive power with the other elected Council of State members. Until a short ballot amendment eliminates that fragmentation, and until the governor is empowered to appoint statutory officers serving as subordinates in the executive department, North Carolina will not have a unitary executive. Meanwhile, the North Carolina Constitution's proclamation of separation of powers will continue to exaggerate its actual application.

[*2070]

II. SEPARATION OF POWERS

A. Leading Cases from Other Jurisdictions

Although this Article emphasizes the appointment and removal of executive officers in North Carolina, the North Carolina cases are better understood when considered in light of cases from other jurisdictions. Generally, American courts have recognized that the power of appointment is an executive function and that legislative attempts to usurp that power violate the separation-of-powers doctrine. 143

The Supreme Court first directly addressed the issue of the appointment and removal of federal officers in Myers v. United States, 144 a 1926 decision involving President Woodrow Wilson's removal of a postmaster. President Wilson had appointed the postmaster, but later removed him from office before his four-year term had expired. Although a statute provided that postmasters of his level could be removed only with the Senate's advice and consent, the President removed the postmaster without the Senate's imprimatur. 145 A divided Court declared the statute unconstitutional as a violation of the separation of powers. 146

140 In North Carolina State Bar v. DuMont, 304 N.C. 627, 639, 286 S.E.2d 89, 96 (1982), the court erroneously suggested in dictum that the Constitution of 1971 made no substantive changes. DuMont held that the right to trial by jury was not substantively changed. See id. at 639- 40, 286 S.E.2d at 96-97. The opinion exceeded that holding with sweeping statements about the entire new constitution. It began correctly by recognizing that some of the changes were substantive, although non-controversial; it ended by incorrectly equating substantive with fundamental and controversial, saying that there had been no such changes. See id. at 635-39, 286 S.E.2d at 94-96; see also Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 612-17, 264 S.E.2d 106, 110-12 (1980) (holding that the meaning of "free public schools" in article IX of the constitution was not changed). Nevertheless, the Constitution of 1971 made some substantive changes, however non- controversial they may have been at the time. See, e.g., Advisory Opinion in re Separation of Powers, 305 N.C. 767, 295 S.E.2d 589 (1982) (involving administration of budget under article III of the constitution); Smith v. State, 289 N.C. 303, 324-25, 222 S.E.2d 412, 425-26 (1976) (involving the supreme court's original jurisdiction under article IV of the constitution). 141 See N.C. Const. art. III, 2(2). 142 See id. art. II, 22.

143 See, e.g., Tucker v. State, 35 N.E.2d 270, 292-93 (Ind. 1941); State of Ohio ex rel. Attorney General v. Kennon, 7 Ohio St. 546, 562-63 (1857). See generally John Murdoch Dawley, The Governor's Constitutional Powers of Appointment and Removal, 22 Minn. L. Rev. 451 (1938) (providing an early analysis of separation of powers and the appointment power); Devlin, supra note 19 (providing a more recent analysis).

144 272 U.S. 52 (1926).

145 See id. at 107. 146 See id. at 161. 176/384 Page 15 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

In reaching its decision, the Court's six-member majority analyzed the historical, legislative, and judicial implications of the separation of powers, relying greatly on Madison's writings. 147 Regarding the executive, the Court stated through Chief Justice Taft, himself a former President, that "the vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws." 148 Accordingly, the Court reasoned that "he must execute them by the assistance of subordinates … [and] as part of his executive power he should select those who were to act for him under his direction in the execution of the laws." 149 The Court concluded by quoting Madison's explanation of the balance of power between the [*2071] legislative and executive branches with respect to appointment of officers: " "The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the Legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature.' " 150

Despite three dissenting opinions in Myers 151 and criticism of the Court's holding from across the political spectrum, 152 President Franklin D. Roosevelt relied upon the case when he removed a conservative and contentious Federal Trade Commission member whom had been appointed by President Calvin Coolidge. 153 In Humphrey's Executor v. United States, 154 a setback for the President and the New Deal, 155 the Supreme Court unanimously held that the President had exceeded his authority in removing the Commissioner and had violated congressional for-cause limitations on commissioners' removal. 156 Although reaffirming the Myers principle that congressional participation in the removal of purely executive officers is unconstitutional, Humphrey's Executor held that, at least regarding quasi-legislative and quasi-judicial agencies such as the Federal Trade Commission, Congress can attempt to create some agency independence from executive control by limiting removal of the agency officials under standards of good cause. 157

Although the decision "stunned the Roosevelt administration," 158 Humphrey's Executor pleased advocates of the independence of administrative agencies from political control and supporters of civil service protection for agency administrators. 159 Later, the Court held in Wiener v. United States 160 that the President could not remove a [*2072] member of the War Claims Commission, an independent adjudicatory agency, merely to replace the member with his own appointee. 161 Thus, although Myers rejected congressional limitations on presidential removal of purely executive officers,

147 See id. at 115-18. 148 Id. at 117.

149 Id. 150 Id. at 128 (quoting 1 Annals of Cong., supra note 33, at 582 (statement of Rep. Madison)). 151 Justices Holmes, McReynolds, and Brandeis wrote dissenting opinions. See id. at 177 (Holmes, J., dissenting), 178 (McReynolds, J., dissenting), 240 (Brandeis, J., dissenting).

152 See Leuchtenburg, supra note 101, at 67-68. 153 See id. at 52-64, 68-69.

154 295 U.S. 602 (1935).

155 Two other setbacks for the New Deal were decided the same day. See A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 541- 42 (1935) (invalidating legislative delegation under the National Industrial Recovery Act); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 601-02 (1935) (invalidating farm-mortgage foreclosure moratoria under the Frazier-Lemke Act).

156 See Humphrey's Ex'r, 295 U.S. at 631-32. 157 See id. 158 Leuchtenburg, supra note 101, at 78. 159 See id. at 75.

160 357 U.S. 349 (1958).

161 See id. at 356. 177/384 Page 16 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Humphrey's Executor and Wiener validated congressional for-cause limitations on Presidential removal of members of independent agencies.

The Court reached a more Myers-like result in Buckley v. Valeo, 162 in which it held that Congress cannot reserve for itself the power to appoint members of the Federal Election Commission because they are charged with responsibility for execution of the laws. 163 More recently, in Bowsher v. Synar, 164 the Court held unconstitutional a statutory provision that the comptroller general could be removed only at the initiative of Congress. 165 The Court's opinion in Bowsher echoed Madison in reasoning that "once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly - by passing new legislation." 166

The Supreme Court's most recent application of the doctrine of separation of powers in an appointment-and-removal case, Morrison v. Olson, 167 resulted in re-interpretation of prior opinions. 168 The Court held that, because an independent counsel was an "inferior" officer under the appointments clause, Congress could vest appointment power in a court. 169 The Court also held that congressional good-cause restrictions on removal of an appointed independent counsel did not violate the principle of separation of powers. The Court cited Humphrey's Executor and Wiener but did not rely on the quasi-legislative and quasi-judicial characterizations of the officials involved in those cases to distinguish them from Myers; instead, the Court re-characterized Myers as turning on something other than whether the official in question is "purely executive." 170 Rather, the Morrison opinion said, "the real question is whether the [*2073] removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." 171 Then, taking the Independent Counsel Act as a whole, the Court held that appointment of an independent counsel by a court "does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch." 172

Morrison discussed Myers and Humphrey's Executor as being on opposite ends of "the spectrum." 173 The sole dissenter in Morrison v. Olson said that the Court had "replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test,' " 174 while sweeping Humphrey's Executor "into the dustbin of repudiated constitutional

162 424 U.S. 1 (1976).

163 See id. at 109, 126-27, 132-33.

164 478 U.S. 714 (1986).

165 See id. at 726-27.

166 Id. at 733-34.

167 487 U.S. 654 (1988).

168 See Miller, supra note 101, at 90-96 (discussing prior interpretations).

169 See Morrison, 487 U.S. at 670-73; see also Edmond v. United States, 520 U.S. 651, 666 (1997) (holding that judges of the United States Coast Guard Civilian Court of Criminal Appeals are "inferior officers" subject to appointment by the department secretary).

170 Morrison, 487 U.S. at 686-89.

171 Id. at 691.

172 Id. at 697.

173 Id. at 690.

174 Id. at 711 (Scalia, J., dissenting). 178/384 Page 17 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA principles" 175 and declaring "open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover." 176

Amid much commentary, 177 Morrison v. Olson and other recent separation-of-powers opinions by the Court 178 have fueled an academic debate over the federal executive power. 179 Despite their [*2074] apparent setback in the limited and unusual circumstances of Morrison v. Olson, the academic advocates of a unitary executive seem since to have persuaded a majority of the Court generally to that view. 180 Moreover, in the recent public debate over the office of independent counsel, appointment and removal were central concerns, 181 and the Morrison v. Olson dissenting opinion is widely regarded as the correct one. 182

Beyond the special circumstance of Morrison v. Olson, an earlier Supreme Court decision, Springer v. Philippine Islands, 183 provides significant appointment-power precedent for other courts. Applying Philippine separation-of-powers provisions, the Court struck down an act of the Philippine legislature vesting appointment of the directors of a national coal company and a

175 Id. at 725 (Scalia, J., dissenting).

176 Id. at 727 (Scalia, J., dissenting).

177 See, e.g., Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1519 (1991) (citing Morrison v. Olson as a representative example of the Supreme Court's view of the separation of powers); Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison and Administrative Government, 57 U. Chi. L. Rev. 357, 358-64 (1990) (analyzing the Supreme Court's reasoning in Morrison and that case's impact on separation of powers); Richard J. Pierce, Jr., Morrison v. Olson, Separation of Powers, and the Structure of Government, 1988 Sup. Ct. Rev. 1, 1-41 (analyzing the effects of Morrison on separation of powers); Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 Cornell L. Rev. 488, 488-552 (1987) (exploring separation of powers pre-Morrison); Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30 Wm. & Mary L. Rev. 301, 312, 326-40 (1989) (commenting on the Court's analysis in Morrison); A Symposium on Morrison v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255, 255-393 (1989).

178 See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88 (1982) (holding that Congress may not give away Article III judicial power to an Article I judge); INS v. Chadha, 462 U.S. 919, 923-1016 (1983) (dealing with separation-of-powers issues within the context of the legislative veto); Clinton v. City of New York, 118 S. Ct. 2091, 2094-131 (1998) (dealing with separation-of-powers issues within the context of the line-item veto).

179 See generally, Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541 (1994) (arguing for a unitary executive); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992) (arguing for a unitary executive); Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996) (arguing against a unitary executive); Michael A. Fritts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May Not Exhibit Effective or Legislative Leadership, 144 U. Pa. L. Rev. 827 (1996) (analyzing the debate over the executive power); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994) (arguing against a unitary executive); Morton Rosenberg, Congress's Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627 (1989) (arguing against a unitary executive); Strauss, supra note 177, at 517-22 (arguing for an in-between approach to the executive power, or "functionalism").

180 See Printz v. United States, 521 U.S. 898, 922-23 (1997) (5-4 decision) ("The insistence of the Framers upon unity in the Federal Executive … is well known.") (citing Calabresi & Prakash, supra note 179). See also Steven G. Calabresi, A Constitutional Revolution, Wall St. J., July 10, 1997, at A14 (commenting on the significance of Printz).

181 See, e.g., Archibald Cox & Phillip B. Heymann, Editorial, After the Counsel Law, N.Y. Times, Mar. 10, 1999, at A19. 182 See, e.g., Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, Wall St. J., June 29, 1998, at A19. The Independent Counsel Act exprired June 30, 1999. See David Johnston, Attorney General Taking Control As Independent Counsel Law Dies, N.Y. Times, June 30, 1999, at A1.

183 277 U.S. 189 (1928). 179/384 Page 18 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA national bank in the legislature. 184 The Court unequivocally established that the appointment power is executive, stating that "legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions." 185

Despite a dissenter's criticism that the distinction between [*2075] legislative and executive action may not always be done "with mathematical precision" or the branches divided "into watertight compartments," 186 other courts have found Springer to be persuasive precedent. For instance, the Ninth Circuit followed Springer in holding that a commonwealth constitution's provision for separation of powers was violated by a statute permitting appointment by the legislature of members of a civil service commission. 187 Additionally, a state supreme court followed Springer in voiding a statutory provision for legislative appointments to the state board of education as violating the separation of powers. 188 Other state courts have reached similar results. 189 Of course, some divergence exists among the cases, some of which are distinguishable because of particular state constitutional provisions. 190 Generally, however, the importance and force of the separation-of-powers doctrine has been consistently recognized, 191 and decisions by the Supreme Court and other courts have influenced North Carolina Supreme Court separation-of-powers decisions. 192

[*2076]

B. North Carolina Cases

184 See id. at 198, 203.

185 Id. at 202. Springer cited favorably two North Carolina Supreme Court cases decided under the Constitution of 1868, State ex rel. Clark v. Stanley, 66 N.C. 60 (1872), and State ex rel. Howerton v. Tate, 68 N.C. 546 (1873). See Springer, 277 U.S. at 204. See infra note 196 and accompanying text for a discussion on Clark and Howerton.

186 Springer, 277 U.S. at 211 (Holmes, J., dissenting).

187 See Camacho v. Civil Serv. Comm'n, 666 F.2d 1257, 1263-64 (9th Cir. 1982), abandoned on other grounds in In re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984).

188 See Rampton v. Barlow, 464 P.2d 378, 381-83 (Utah 1970).

189 See, e.g., Spradlin v. Arkansas Ethics Comm'n, 858 S.W.2d 684, 688 (Ark. 1993) (holding that designating the chief justice of the state supreme court to appoint a member of the state ethics commission violated the state's separation-of-powers doctrine); Legislative Research Comm'n v. Brown, 664 S.W.2d 907, 924 (Ky. 1984) (holding that statutorily creating an independent legislative commission to carry out functions of the state general assembly is a violation of separation of powers); Opinion of the Justices, 309 N.E.2d 476, 480-82 (Mass. 1974) (holding that a legislative-created administrative commission would violate the state's constitutional separation-of-powers provision); Tucker v. State, 35 N.E.2d 270, 304-05 (Ind. 1941) (holding that a legislative act affecting the terms and tenure of administrative agency employees was a usurpation of executive power and, thus, a violation of the state's separation-of-powers doctrine). See also Sheryl G. Synder & Robert M. Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165, 167-233 (1984-85) (providing a legal and historical analysis of Brown).

190 Compare State ex rel. Schneider v. Bennett, 547 P.2d 786, 799-800 (Kan. 1976) (holding that members of the state legislature may serve on administrations or commissions created by legislative enactments without violating the separation-of-powers doctrine but only where such service results in no actual usurpation of powers of another branch of government), with Brown, 664 S.W.2d 907, 914 (holding that the state's separation-of-powers doctrine must be strictly construed, and that a legislatively-created, independent agency acting on behalf of the legislature was an unconstitutional usurpation of executive power). See Devlin, supra note 19, at 1136-44.

191 See, e.g., State ex rel. Young v. Brill, 111 N.W. 639, 644-49 (Minn. 1907) (discussing numerous separation-of-powers cases in different states).

192 See State ex rel. Wallace v. Bone, 304 N.C. 591, 601-06, 286 S.E.2d 79, 84-87 (1982) (noting various Supreme Court and other state decisions regarding separation of powers in support of North Carolina's application of the doctrine). Problems can arise in applying federal and other jurisdictions' separation-of-powers decisions to a particular state constitutional provision. See Devlin, supra note 19, at 1219-24 (commenting on the limits of applying federal precedent to state separation-of-powers issues). 180/384 Page 19 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Among other North Carolina separation-of-powers cases, 193 appointment-and-removal 194 cases first arose after adoption of the [*2077] Constitution of 1868 and its new appointments clause. 195 As early as 1872, the North Carolina Supreme Court held that the general appointment power was vested exclusively in the governor and that a statute depriving him of that power for a particular statutory office and placing it in the legislature was unconstitutional. 196 That precedent controlled in two subsequent decisions. 197 After the 1875 amendments to the appointments clause, however, the court held that those cases no longer controlled and that the legislature could provide for appointment of statutory officers. 198 Separation-of-powers arguments could not overcome the effect of the 1875 amendments. 199

193 See, e.g., Adams v. North Carolina Dep't of Natural and Econ. Resources, 295 N.C. 683, 702, 249 S.E.2d 402, 413 (1978) (holding that delegation of power to regulatory commission did not violate separation of powers); Person v. Watts, 184 N.C. 499, 502, 115 S.E. 336, 339 (1922) (involving executive independence); Long v. Watts, 183 N.C. 99, 105-06, 110 S.E. 765, 767-68 (1922) (involving judicial independence); Herndon v. The Imperial Fire Ins. Co., 111 N.C. 384, 385-86, 16 S.E. 465, 465 (1892) (stating that the court's powers, duties, and rules are free from legislative interference); Horton v. Green, 104 N.C. 400, 401, 10 S.E. 470, 470 (1889) (stating the same); State ex rel. Scarborough v. Robinson, 81 N.C. 409, 425-26, 429 (1879) (stating that "the judicial power cannot be exercised in aid of" another branch's function). See also Wake County Hosp. Sys., Inc. v. Rules Review Comm'n of the N.C. Gen. Assembly, No. 97 CVS 1426, General Court of Justice, Superior Court Division, Wake County, North Carolina (voluntary dismissals filed June 18, 1997, and October 15, 1997) (involving separation-of-powers challenges to review of administrative agency rules by rules review commission). Through 1995 amendments to the Administrative Procedures Act, see ch. 507, 27.8(e)-(f), 1995 N.C. Sess. Laws 1525, 1723-29 (codified as amended at N.C. Gen. Stat. 150B- 21.3(b), -21.8(c), -21.9, -21.10 (1995)), the Rules Review Commission, controlled by the General Assembly, may prevent an administrative agency in the executive branch from implementing a rule that is not approved by the commission. Actions of the commission have created controversy. See, e.g., Michael Lowrey & John Hood, Regulation in North Carolina: A Primer, John Locke Found., Mar. 1997, at 12-17 (analyzing the function and impact of the Rules Review Commission and proposing regulation reform). As challenges have occurred in other states to such rules-review provisions, it is reasonable to expect further challenge to these North Carolina provisions. See Missouri Coalition for the Env't v. Joint Comm. on Admin. Rules, 948 S.W.2d 125, 133 & n.17 (Mo. 1997) (holding that a statutory provision suspending promulgation of rules unconstitutionally interferes with the executive branch, but upholding a legislative committee review of executive regulatory actions) (citing Kenneth D. Dean, Legislative Veto of Administrative Rules in Missouri: A Constitutional Virus, 57 Mo. L. Rev. 1157, 1216 (1992) ("At some point the right case will arise challenging the powers of the JCAR. It should come as no surprise to anyone when those powers are ruled unconstitutional.")).

194 The North Carolina Supreme Court recognized the principle of separation of powers in refusing to interfere with the governor's removal of an administrative officer. See State ex rel. Caldwell v. Wilson, 121 N.C. 425, 472, 28 S.E. 554, 562-63 (1897). With a rhetorical flourish, the Caldwell court explained its role in separation-of-powers disputes: We realize the responsibilities of this Court in settling the line of demarkation between the legislative, executive and supreme judicial powers, which, by constitutional obligation, must be kept forever separate and distinct. This vital line must be drawn by us alone, and we will endeavor to draw it with a firm and even hand, free alike from the palsied touch of interest and subserviency and the itching grasp of power. Should the legislative or executive departments of the State cross that line we will put them back where they belong; but upon us rests the equal obligation of keeping upon our own side. This is a question not of discretion, but of law; a matter not of expediency, but of right.

Id. at 471, 28 S.E. at 562. See also Person v. Watts, 184 N.C. 499, 502, 115 S.E. 336, 339 (1922) (holding that the court will not compel administrative officer to act). "As to the wisdom of this [separation-of-powers] provision there is practically no divergence of opinion - it is the rock upon which rests the fabric of our government." Id. at 502, 115 S.E. at 339.

195 N.C. Const. of 1868, art. III, 10.

196 See State ex rel. Clark v. Stanley, 66 N.C. 60, 66-67 (1872) (invalidating a statute that authorized the president of the senate and the speaker of the house to appoint directors for the state to all corporations in which the state was a stockholder). See also State ex rel. Howerton v. Tate, 68 N.C. 546, 551-53 (1873) (holding that the governor's appointees to the board of directors of a railroad corporation in which the state was a stockholder could not be displaced by proxies acting under statute controverting gubernatorial appointment).

197 See People ex rel. Nichols v. McKee, 68 N.C. 429, 435-39 (1873) (involving appointments to the board of a state institution); People ex rel. Welker v. Bledsoe, 68 N.C. 457, 458-59 (1873) (involving appointments to the board of directors of the state penitentiary).

198 See State ex rel. Cherry v. Burns, 124 N.C. 761, 765, 33 S.E. 136, 137 (1899) (applying an act that created office of keeper of the capitol and provided that legislature could fill it); Cunningham v. Sprinkle, 124 N.C. 638, 642-43, 33 S.E. 138, 139 (1899) (involving appointment of members of the Board of Agriculture pursuant to an 1875 state constitutional amendment directing establishment of the department); State 181/384 Page 20 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

After North Carolina adopted the Constitution of 1971, but before its new appointments clause became an issue for the North Carolina Supreme Court, the court decided a significant separation-of-powers case, Wallace v. Bone, 200 and rendered a significant advisory opinion, In re Separation of Powers. 201 The court's emphatic language about strict application of the doctrine stirred academic commentary. 202 In re Separation of Powers advised that, under the [*2078] specific constitutional provision for administration of the state budget by the governor and the general provision for separation of powers, the governor, not the General Assembly, controlled transfers within the budget and disbursement of federal block grants to the state. 203 Wallace v. Bone held that, as a matter of separation of powers, legislators could not serve as members of a statutorily created agency within the executive branch. 204 As explained by the court, the legislature cannot create an executive agency to implement legislation and effect some control over the agency by appointing legislators to the agency. 205

That principle could mean that the legislature cannot constitutionally create an executive agency and then exercise some control over it indirectly by providing for non-executive appointment to the agency. But that issue was not presented in Wallace v. Bone or In re Separation of Powers, and, as one scholar noted, it was among important unanswered questions concerning the appointment power awaiting authoritative interpretation of the appointments clause of the Constitution of 1971. 206

Such an opportunity arose in Martin v. Melott. 207 For the first time under the Constitution of 1971 and for the first time in nearly a century, Martin v. Melott presented a constitutional confrontation concerning the governor's power to appoint state officers whose offices are created by statute. 208 In Melott, the Governor challenged statutory appointment provisions in the 1985 amendments to the state Administrative Procedure Act ("APA") creating an Office of Administrative Hearings and its director. 209 Although another [*2079] legislator had proposed that the director be appointed by the governor, after the election of Governor James G. Martin in 1984, the legislative sponsor of the amendments changed the proposal to appointment

Prison v. Day, 124 N.C. 362, 366, 32 S.E. 748, 749 (1899) (involving the superintendent of state prison); State ex rel. Ewart v. Jones, 116 N.C. 570, 571-74, 21 S.E. 787, 787-88 (1895) (applying an act that created a judgeship and provided that the legislature should fill the vacancy declared to be caused upon ratification of the act).

199 See Cunningham, 124 N.C. at 642-43, 33 S.E. at 139.

200 State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982).

201 Advisory Opinion in re Separation of Powers, 305 N.C. 767, 295 S.E.2d 589 (1982).

202 See generally Legislative Research Commission, Separation of Powers, Report to the 1983 General Assembly of North Carolina (1983) (assessing the impact of Wallace v. Bone on North Carolina agencies); Milton S. Heath, Jr., The Separation of Powers in North Carolina, Popular Gov't, Fall 1982, at 19; Orth, supra note 1; John V. Orth, Separation of Powers: An Old Doctrine Triggers a New Crisis, N.C. Insight, May 1982, at 36.

203 See In re Separation of Powers, 305 N.C. at 775-77, 295 S.E.2d at 593-94.

204 See Wallace, 304 N.C. at 608-09, 286 S.E.2d at 88-89.

205 See id. at 608, 286 S.E.2d at 88. 206 Orth, supra note 1, at 2, 25-26.

207 State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (plurality opinion). See Charles Herman Winfree, Note, State ex rel. Martin v. Melott: The Separation of Powers and the Power to Appoint, 66 N.C. L. Rev. 1109, 1109-22 (1988) (examining the separation-of- powers doctrine and its incorporation into the federal and North Carolina constitutions); Devlin, supra note 19, at 1246 & nn.141-44 (criticizing North Carolina's approach to separation-of-powers cases as analyzed in Martin v. Melott).

208 See State ex rel. Salisbury v. Croom, 167 N.C. 223, 226-29, 83 S.E. 354, 354-56 (1914) (upholding legislative appointment of the director of the State Hospital, an office not provided for in the state constitution).

209 Act of July 12, 1985, ch. 746, 2, 1985 N.C. Sess. Laws 987, 1012 (codified as amended at N.C. Gen. Stat. 7A-750 to -752 (1995 & Cum. Supp. 1998)); Act of July 15, 1986, ch. 1022, 3-4, 1985 N.C. Sess. Laws 602, 605 (codified as amended at N.C. Gen. Stat. 7A-752 to -753 (1995)) (Regular Session, 1986). 182/384 Page 21 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA by the General Assembly. 210 He later abandoned that legislative-appointment proposal as being too controversial. 211 The enacted amendments instead provided for the appointment of the officer by the chief justice of the North Carolina Supreme Court or, in the event the supreme court issues an opinion that the appointment by the chief justice is unconstitutional, by the attorney general. 212

The amendments to the APA reflected perceived abuses by executive departments and agencies and created the Office of Administrative Hearings to address the abuses. 213 Underlying those perceptions and enactments, however, philosophical and partisan political considerations were manifest. The APA always had legislative-versus-executive power implications. Now, however, it had partisan political-party implications - a Democrat-controlled legislature amended the APA, arguably to curb a newly elected Republican Governor. 214 Nevertheless, after Governor Martin [*2080] challenged the appointment provisions, the person appointed by the chief justice to the office of director proclaimed that the controversy was "not a question of this governor vs. this General Assembly … It's a question of executive power vs. legislative power." 215

Governor Martin challenged the appointment provisions of the APA amendments as violations of the doctrine of separation of powers without success, garnering only one limited dissenting opinion on that basis. 216 The Governor's separate challenge under the appointments clause also failed, as discussed below. 217 The only authoritative result of that challenge was its

210 Bill Finger, et al., Assessing the Administrative Procedure Act 11 (1985).

211 See id.

212 See Act of July 12, 1985, ch. 746, 2, 1985 N.C. Sess. Laws 987, 1012 (codified as amended at N.C. Gen. Stat. 7A-750 to -752 (1995 & Cum. Supp. 1998)); Act of July 15, 1986, ch. 1022, 3-4, 1985 N.C. Sess. Laws 602, 605 (codified as amended at N.C. Gen. Stat. 7A-752 to - 753 (1995)) (Regular Session, 1986). The supreme court declined to issue an advisory opinion. See In re Response to Request for Advisory Opinion, 314 N.C. 679, 682, 335 S.E.2d 890, 892 (1985).

213 Chapter 746 of the 1985 North Carolina Session Laws created the Office of Administrative Hearings as "an independent, quasi-judicial agency under Article III, Sec. 11 of the Constitution … [with] such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which it was created." See N.C. Gen. Stat. 7A-750 (1995 & Cum. Supp. 1998). One purpose was "to provide a source of independent hearing officers to preside in administrative cases and thereby prevent the commingling of legislative, executive, and judicial functions in the administrative process." Id. In his challenge to the appointment provisions pertaining to the Office, Governor Martin noted, but did not assert, arguments that other parts of the act creating the Office are unconstitutional, "especially on grounds that they established an unauthorized court and delegate to an administrative agency excessive judicial powers." Brief for Appellant at 13-14 & nn.3-5, State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (No. 61PA87). Controversies continue about agencies' actions and the role of the Office of Administrative Hearings. See James Eli Shiffer, "Law Judges' Debate Heats Up, News & Observer (Raleigh, N.C.), June 10, 1999, at 1A (discussing N.C. House Bill 968, 1999 Session, An Act to Modify the Procedures Concerning Final Administrative Decisions in Contested Cases Heard by the Office of Administrative Hearings).

214 The act had long been a political football … straining such close Democratic friendships as that between [then] former Gov. James B. Hunt [sic] Jr. and current [1985] Lt. Gov. Robert B. Jordan III… … With Gov. James G. Martin, a Republican, taking over control over the executive branch, the political stew [was] thickened. The central APA issue - legislative-versus-executive control over the mechanisms of government - now has become part of the larger struggle of partisan politics. Finger, supra note 210, at 3-4. At that time, the General Assembly was controlled by Democrats and dominated by a small group of powerful leaders. See The Democratic Dictatorship … and Other Legislative Skirmishes, The Independent, July 18-Aug. 14, 1986, at 1.

215 Steve Riley, Judge Decides Chief Justice to Appoint Hearings Chief, News & Observer (Raleigh, N.C.), Dec. 2, 1986, at 1-2C (quoting Robert A. Melott, director of the Office of Administrative Hearings).

216 See Melott, 320 N.C. at 528, 359 S.E.2d at 789 (Martin, J., dissenting). 217 See infra text accompanying notes 300-27. 183/384 Page 22 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA rebuff. The seven-member supreme court split: After the chief justice recused himself, 218 three justices joined in a plurality on certain grounds, 219 two concurred in the result on other grounds, 220 and one dissented on limited separation-of-powers grounds only involving the independence of the judiciary. 221

The plurality in Melott rejected the Governor's argument that the principle of Wallace v. Bone - that the General Assembly cannot constitutionally create an agency of the executive branch and retain some control over it by appointing legislators to the agency's governing body - should prevent legislative control over an executive officer by providing for the officer's appointment by someone other than the governor. Without elaboration, the plurality simply said, "Wallace is not authority for this case." 222 Ignoring the clear statutory [*2081] provision that the new agency is part of the executive branch, 223 the plurality deemed it unnecessary to decide whether the director is in the executive branch. Assuming that the director is in the executive branch, the plurality formulated the issue as functional: Whether the appointment of the director is the exercise of executive power. 224 The plurality then held that the appointment of the director "is not an exercise of the executive power." 225 Citing only Advisory Opinion in re Separation of Powers, the plurality simply equated executive power with executing the law. 226 Reasoning that the appointment of someone to execute the laws does not require the appointing party to execute the laws, the plurality concluded that "the appointment power is not the same as taking care that the laws are executed." 227 Thus, the plurality concluded that the chief justice's appointment of the executive branch agency's director did not violate the constitutional provision for separation of powers. 228

The concurring opinion found the plurality's analysis to be "flawed," 229 reasoning that the separation-of-powers issue turns instead on the nature of the powers and the duties exercised by the appointed officer. 230 The concurrence then concluded that the director's statutory powers and duties are primarily judicial. 231 Thus, it too concluded that the chief justice could constitutionally appoint the director. 232

218 See Melott, 320 N.C. at 524, 359 S.E.2d at 787 (plurality opinion).

219 See id. at 520, 359 S.E.2d at 785 (plurality opinion). Justice Webb wrote the opinion and was joined by Justices Frye and Mitchell. See id. at 518, 520, 359 S.E.2d at 784-95.

220 See id. at 524, 528, 359 S.E.2d at 787, 789 (Meyer, J., concurring in result). Justice Whichard joined the opinion. See id. at 518, 359 S.E.2d at 784.

221 See id. at 528, 359 S.E.2d at 789 (Martin, J., dissenting).

222 Id. at 523, 359 S.E.2d at 786 (plurality opinion).

223 See N.C. Gen. Stat. 7A-750 (1995) (providing that it is "an independent, quasi-judicial agency under Article III, Sec. 11 of the Constitution").

224 Melott, 320 N.C. at 523, 359 S.E.2d at 787 (plurality opinion).

225 Id. (plurality opinion). 226 Id. (plurality opinion).

227 Id. at 523-24, 359 S.E.2d at 787 (plurality opinion).

228 See id. at 524, 359 S.E.2d at 787 (plurality opinion).

229 Id. at 525, 359 S.E.2d at 787 (Meyer, J., concurring in result).

230 Id. at 525, 359 S.E.2d at 788 (Meyer, J., concurring in result).

231 Id. at 526, 359 S.E.2d at 788 (Meyer, J., concurring in result).

232 See id. at 528, 359 S.E.2d at 789 (Meyer, J., concurring in result). 184/384 Page 23 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

The lone dissenter in Melott acknowledged that some of the director's powers and duties may be described as "quasi-judicial," but concluded that they are mostly "purely administrative in character." 233 The dissent correctly noted that the office of director is within the executive branch. 234 Nevertheless, the dissent concluded, without explanation, that the governor has no authority to appoint the director, unless such power be granted by the General Assembly, and that the General Assembly "can delegate the appointment … to [*2082] another official." 235 Under the dissent's separation-of-powers analysis, however, the other official cannot constitutionally be the chief justice. With a rhetorical flourish, the dissent complained that by placing this appointment with the chief justice, "the judicial branch has been cast adrift upon uncharted waters amid the rocky shoals of political influence. The genius of the doctrine of separation of powers is to prevent such result." 236

All three Melott opinions clearly retreated from the rhetoric and principle of Wallace v. Bone and ignored other leading separation-of-powers cases. 237 Nevertheless, two of the opinions hinted that the separation-of-powers provision would be applied more strictly in other circumstances. The dissent in Melott speculated that the court would not approve the General Assembly's delegating to the chief justice the appointment of members of other executive agencies. 238 The concurring opinion in Melott interjected that it did "not mean to say that, under different circumstances, the principles of separation of powers would not render similar legislation unconstitutional." 239 The retreat from Wallace v. Bone and the vague suggestion about other potential applications of the principles of separation of powers may be a result of changes in court membership occurring between Wallace v. Bone and Martin v. Melott. 240 Moreover, the politics of the [*2083] state and the political party affiliation of the governor had also changed. 241

III. THE EXECUTIVE POWER AND THE APPOINTMENT POWER IN NORTH CAROLINA

A. Constitutional and Statutory Provisions

233 Id. at 530-31, 359 S.E.2d at 790-91 (Martin, J., dissenting).

234 See id. at 531-32, 359 S.E.2d at 791 (Martin, J., dissenting).

235 Id. at 533, 359 S.E.2d at 792 (Martin, J., dissenting).

236 Id. (Martin, J., dissenting). Other jurisdictions that adhere to the separation-of-powers doctrine and have considered the issue of judicial appointment of non-judicial officers have held that the appointments are unconstitutional. See, e.g., Spradlin v. Arkansas Ethics Comm'n, 858 S.W.2d 684, 688 (Ark. 1993) (holding that state chief justice cannot constitutionally appoint one member of commission); State ex rel. White v. Barker, 89 N.W. 204, 209-10 (Iowa 1902) (holding that judges cannot constitutionally appoint board members); Opinion of the Justices, 309 N.E.2d 476, 479-80 (Mass. 1974) (holding that state chief justice cannot constitutionally appoint non-judicial officers or board members); State ex rel. Young v. Brill, 111 N.W. 639, 651 (Minn. 1907) (holding that district judges cannot constitutionally appoint board members); Application of O'Sullivan, 158 P.2d 306, 309-10 (Mont. 1945) (holding that judicial appointment of city attorney is unconstitutional).

237 See, e.g., Springer v. Phillipine Islands, 277 U.S. 189, 197-212 (1928) (regarding an act by the Phillipine legislature that vested executive appointment power in the legislature); Myers v. United States, 272 U.S. 52, 106-295 (1926) (regarding the power of the President to remove a postmaster from his appointed position). See also supra notes 144-52 and accompanying text (discussing Myers); supra notes 183-88 and accompanying text (discussing Springer).

238 See Melott, 320 N.C. at 531, 359 S.E.2d at 791 (Martin, J., dissenting).

239 Id. at 527, 359 S.E.2d at 789 (Meyer, J., concurring in result).

240 Justice Britt, who wrote for the court in Wallace v. Bone, and Chief Justice Branch, sitting at that time, both retired before Melott was decided. See 320 N.C. at vii (noting that Chief Justice Branch and Justice Britt were both retired in 1987, when Melott was decided); 304 N.C. at v (noting that Chief Justice Branch and Justice Britt were sitting in 1981, when Wallace v. Bone was decided).

241 See Coble, supra note 19, at 686-88 (noting that separation-of-powers disputes at the time of Wallace v. Bone were between a Democratic governor, Governor Hunt, and Democratic majority leaders in the General Assembly, and that the dispute in Melott was between a Republican governor and Democratic majority leaders in the General Assembly). See also Republican Majority on High Court, News & Observer (Raleigh, N.C.), Jan. 2, 1999, at 3A (noting that for the first time since early this century the state supreme court has a majority of Republican justices). 185/384 Page 24 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

The Constitution of 1971 vests the "executive power of the State … in the Governor." 242 It provides for the governor's election to a four-year term and qualifications, 243 other attributes of office, 244 and for the governor's "oath or affirmation that he will support the Constitution and laws of the United States and of the State of North Carolina, and that he will faithfully perform the duties pertaining to the office of Governor." 245

The Constitution of 1971 enumerates ten specific duties of the governor, three of which are emphasized here:

Budget. The Governor shall prepare and recommend to the General Assembly a comprehensive budget of the anticipated revenue and proposed expenditures of the State for the ensuing fiscal period. The budget as enacted by the General Assembly shall be administered by the Governor.

…

Execution of laws. The Governor shall take care that the [*2084] laws be faithfully executed.

…

Appointments. The 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. 246

The Constitution of 1971 provides for the election of a lieutenant governor, who presides over the Senate and who "shall perform such additional duties as the General Assembly or the Governor may assign to him." 247 It also provides for the election of eight other constitutional officers - a secretary of state, an auditor, a treasurer, an attorney general, a superintendent of public instruction, and commissioners of agriculture, labor, and insurance 248 - whose "respective duties shall be prescribed by law." 249 Those eight officers, together with the governor and the lieutenant governor, as the ten constitutional officers whose offices are established by the executive article of the constitution, comprise the Council of State, with no collective powers or duties constitutionally prescribed. 250

In re-allocating an earlier array of two hundred state agencies under not more than twenty-five principal administrative departments, the drafters of the constitutional reorganization amendment contemplated that the governor would "be enabled to manage the business of the State more effectively." 251 But because of the failure of the short ballot proposal, eight of the heads of those principal administrative departments remained independently elected constitutional officers, with duties

242 N.C. Const. art. III, 1. Judicial interpretation of the meaning of "executive power" is sparse in North Carolina. See Melott, 320 N.C. at 523, 359 S.E.2d at 787 (plurality opinion) ("We believe it means "the power of executing laws.' "). North Carolina courts have explicitly recognized that the governor has standing in a declaratory judgment action regarding the interpretation of statues administered by another constitutional executive officer, see State ex rel. Hunt v. North Carolina Reinsurance Facility, 302 N.C. 274, 280-81, 275 S.E.2d 399, 400-01 (1981), and implicitly that the governor may make a legal determination that a statute is unconstitutional and direct the attorney general to commence an action challenging its constitutionality, see State ex rel. Attorney General v. Knight, 169 N.C. 333, 334-63, 85 S.E. 418, 419-32 (1915) (testing a woman's right to be a notary public in light of a gubernatorial power to appoint women as such). 243 See N.C. Const. art. III, 2. 244 See id. 3. 245 Id. 4.

246 Id. 5. 247 Id. 6. 248 See id. 7(1).

249 Id. at 7(2). 250 See id. at 8. 251 1968 Report, supra note 100, at 51-52. 186/384 Page 25 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

"prescribed by law," 252 while the other department heads were dependent upon statutory authorization and prescription of duties. Accordingly, the General Assembly enacted executive organization acts in 1971 253 and 1973. 254 Those Acts recognized the constitutional concept that the governor was the chief executive officer of the state, 255 but vested executive and [*2085] administrative powers, duties, and functions in separate principal offices or departments. 256 These offices and departments included the Office of the Governor, eight departments separately headed by other elected constitutional officers, and the other statutory departments, which soon numbered nine. 257 Except for the eight functional departments headed by elected constitutional officers, the heads of the other nine functional departments are "appointed by the Governor and serve at his pleasure." 258

Soon after adoption of the Constitution of 1971 and those initial executive organization acts, the General Assembly began asserting oversight of the executive branch during the term of Governor James E. Holshouser, Jr., a Republican elected in 1972. 259 That legislative oversight continued into the succeeding two terms of Governor James B. Hunt, Jr., a Democrat first elected in 1976. 260 Some of that legislative oversight violated the doctrine of separation of powers, as established in Wallace v. Bone 261 and Advisory Opinion in re Separation of Powers. 262 Under those opinions, both written during Governor Hunt's tenure, the General Assembly cannot constitutionally encroach upon the governor's duty to prepare and recommend a budget for legislative enactment. 263 Moreover, as the constitution provides, the "budget as enacted by the General Assembly shall be administered by the Governor." 264

Stronger challenges to the governor's executive power and tougher tests of the separation-of-powers doctrine awaited the [*2086] election of Governor Hunt's successor, Governor Martin, a Republican first elected in 1984. During his two terms, Governor Martin was involved in several significant cases. 265 The first of two such cases discussed in this Part, Martin v. Thornburg, 266 involved a conflict between the Governor and the Attorney General over the action of one of the Governor's

252 N.C. Const. art. III, 7(2).

253 See Act of July 14, 1971, ch. 864, 1971 N.C. Sess. Laws 1266 (codified at N.C. Gen. Stat. 143A-1, -245 (1994)).

254 See Act of May 14, 1973, ch. 476, 1973 N.C. Sess. Laws 576 (codified at N.C. Gen. Stat. 143B-1, -324.3 (1997)).

255 See N.C. Gen. Stat. 143A-4 (1994), 143B-4 (1997). 256 See id. 143A-11 (Cum. Supp. 1998), 143B-6 (1997). 257 See id. 143A-11 (Cum. Supp. 1998), 143B-6 (1997). 258 Id. 143B-9 (1997). 259 See Ran Coble, Special Provisions in Budget Bills: A Pandora's Box for North Carolina Citizens 3, 5 (1986); Jack Betts, The Coming of Age of the N.C. General Assembly, 4 N.C. Insight, Dec. 1981, at 13, 15-16; Heath, supra note 202, at 19-23.

260 See Coble, supra note 259, at 5; Betts, supra note 259, at 15-16; Heath, supra note 202, at 19-23.

261 See supra notes 204-05 and accompanying text. 262 See supra note 203 and accompanying text.

263 The General Assembly created the Advisory Budget Commission in 1925. See N.C. Gen. Stat. 143-1 (1999). Separation-of-powers questions about the commission's functions, with its members including those of the General Assembly, were raised in 1980, at which time it continued to take direct action on budget requests; beginning in 1982, the commission began to make recommendations to the governor regarding budget requests. See Orth, supra note 202, at 38-43. See also Mercer Doty, The Advisory Budget Commission: Not as Simple as ABC, 44-47 (1980) (discussing the constitutional issues surrounding the commission).

264 N.C. Const. art. III, 5(3); Advisory Opinion in re Separation of Powers, 305 N.C. at 776, 295 S.E.2d at 594. 265 See Coble, supra note 19, at 687-88.

266 320 N.C. 533, 359 S.E.2d 472 (1987). 187/384 Page 26 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA appointed department heads. The second, Martin v. Melott, summarized above, 267 addressed the governor's power to appoint statutory officers. A third case, Stott v. Martin, 268 addressing the governor's ability to discharge certain state employees and replace them, is discussed in Part V. 269

As Governor Hunt explained in the context of Stott v. Martin, the governor's ability to effect any of his agenda depends largely on his ability to appoint and remove key subordinates: "When a governor first comes in, he's got to put his team into place quickly in order to get control of the government and be able to carry out the mandate that the people have given to do their will." 270 Because a newly elected governor takes office in January, just before the General Assembly convenes, he must promptly prepare a budget, which may differ from the preceding governor's proposed budget, for proposal to the General Assembly. 271 As Governor Hunt added, "You've really got to get in and hit the ground running … [and] put your team in immediately." 272 The governor's team must loyally represent him not only with the public, but also with members of the General Assembly and other government personnel. 273 Thus, to implement policies through the large state-government bureaucracy, the governor needs a level of employees exempt from civil service protection. 274 It was "essential," in Governor Hunt's view, to have [*2087] subordinates exempt from civil service protection, "so that the policy-making done by those exempt employees would be effective in guiding and leading the rank and file state employees who were not exempt." 275 To be an effective governor, Governor Hunt advised that the governor "bring in new people that you know are loyal or determine that others who may be in are loyal. You have to be absolutely satisfied that you've got a team in there to do the job." 276

B. The Governor, the Attorney General, and the Council of State

In 1985, Governor Hunt's newly elected successor, Governor Martin, and his appointee to head the Department of Administration proposed an administrative action requiring approval of the Council of State. The Governor soon confronted opposition by the Attorney General and the other elected members of the Council of State, resulting in Martin v. Thornburg. 277 In Thornburg, the Governor and his appointee commenced a declaratory judgment action against the Attorney General and other members of the Council of State to determine their respective rights and duties in connection with civil actions against the state and regarding the administrative action at issue, which involved leases executed on behalf of the state. 278 A state agency had leased certain office space, and, upon expiration of that lease, the Department of Administration, statutorily responsible for

267 See supra text accompanying notes 207-41.

268 725 F. Supp. 1365 (E.D.N.C. 1989) ("Stott I"), rev'd sub nom. Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990) ("Stott II"), on remand, Stott v. Martin, 783 F. Supp. 970 (E.D.N.C. 1992) ("Stott III"). 269 See infra notes 328-62 and accompanying text.

270 Deposition of James B. Hunt, Jr., at 23-24, Stott I, 725 F. Supp. 1365 (No. 85-818-CIV-5). The district court paraphrased Governor Hunt's testimony as follows: "There are at least four qualifications those key people must have. They must be loyal to the governor, responsive to his suggestions, effective in carrying out their duties, and committed to his program." Stott I, 725 F. Supp. at 1385.

271 Deposition of James B. Hunt, Jr., supra note 270, at 23. 272 Id. at 23-24. 273 Id. at 75, 82.

274 Id. at 78-81. At the time of Governor Hunt's testimony, the state had approximately 46,000 rank-and-file employees, and he had concluded that approximately 1500 should be designated as exempt. See id.

275 Id. 276 Id. at 80, 82, 87. See Beyle, supra note 55, at 33-37.

277 320 N.C. 533, 359 S.E.2d 472 (1987).

278 See id. at 535, 359 S.E.2d at 473. 188/384 Page 27 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA state leases subject to approval "of the Governor and Council of State," 279 recommended leasing other office space for the agency. 280 At a meeting of the Council, the Attorney General moved for, and the Council, in the absence of the Governor, unanimously approved the state's renegotiating a proposed lease for the former office space. 281 At a subsequent meeting of the Council, the Governor asserted that under the applicable statutes the Council was to approve or disapprove the Department's lease recommendation. 282 In the Governor's opinion, the Council could not initiate a new lease transaction or direct the Department to undertake one, and both the Governor and the Council must approve a department lease recommendation. 283 The Governor also announced that he did not [*2088] approve the proposal for the former office space or any negotiation for its lease. 284 Before the Governor and the Council could resolve their differences, the owner of the former office space commenced a civil action against the state alleging award of a contract for the office space; the Attorney General unilaterally appeared for the state in that action. 285 The Governor and his appointee then commenced their separate declaratory judgment action, resolved on appeal to the North Carolina Supreme Court in Martin v. Thornburg. 286 The appeal presented nine issues, but the court decided only three, declining to decide the others it described as "grave constitutional and statutory questions which may arise in the event of continued differences between the various executive officers of the State." 287

First, based on statutory interpretation and analogous authority, Thornburg held that no statute authorized the Council of State to require the Department of Administration to negotiate and enter into any lease other than the lease proposed by the Department to the Council for statutory approval. 288 Second, the court held that because the Department had presented the "lowest rental proposed" under the applicable statutory criteria, the Council's authority was limited to either approving or disapproving that proposal and that the Council's "further action" of directing the Department to negotiate and enter into a lease for the former office space "was therefore without statutory authorization." 289 Third, also on statutory grounds only, the court held that the Governor, represented by private counsel in the action, need not have the prior advice of the Attorney General to employ special counsel to represent the state and that the applicable statute "gives the Governor the unrestricted right to "employ such special counsel as he may deem proper or necessary.' " 290

Yielding only unsurprising statutory interpretations, Thornburg left open underlying constitutional questions about the Council collectively 291 and the Attorney General individually. Because of the [*2089] Governor's statutory right to employ special

279 N.C. Gen. Stat. 143-341(4)(d) (1999), 146-22 (Cum. Supp. 1998).

280 See Thornburg, 320 N.C. at 536, 359 S.E.2d at 473.

281 See id. at 536, 359 S.E.2d at 473.

282 See id. at 537, 359 S.E.2d at 475. 283 See id.

284 See id. at 537, 359 S.E.2d at 474-75.

285 See id. at 538, 359 S.E.2d at 475.

286 See id. at 535, 359 S.E.2d at 473.

287 Id. at 548, 359 S.E.2d at 480-81.

288 Id. at 541, 359 S.E.2d at 476-77.

289 Id. at 545, 359 S.E.2d at 479. But cf. Frye Reg. Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 46-47, 510 S.E.2d 159, 164 (1999) (holding that the governor's statutory power to approve an agency's statutorily mandated plan includes the power to amend the plan).

290 Thornburg, 320 N.C. at 548, 359 S.E.2d at 480 (quoting N.C. Gen. Stat. 147-17(a) (1993)).

291 See id. at 548, 359 S.E.2d at 480-81 (noting the Thornburg court's declination to address the underlying constitutional questions in the case). 189/384 Page 28 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA counsel to represent the state, the supreme court did not consider the Governor's argument that such authority arises constitutionally from the executive power. 292 It did, however, consider whether the Attorney General's statutory duty to appear for the state in any proceeding in which it is a party violates the constitutional provision that "the executive power of the State shall be vested in the Governor." 293 The court noted that the constitution does not prescribe the duties of the attorney general and that the statutorily prescribed duties include appearing for the state in actions and the common law power to prosecute actions for the state. 294 Although it either ignored or overlooked its earlier precedent for the attorney general's commencing an action based upon a legal determination by the governor, 295 the court did cite a then-recent court of appeals case illustrating the potential for conflict between the governor and the attorney general. 296 The underlying [*2090] issue is, of course, whether the governor or the attorney general determines the state's policy position in civil actions. 297 In Thornburg, the court stated without further explanation: "The independent executive offices of Governor and Attorney General with their differing functions and duties under the constitution create a clear potential for conflict." 298 In that case, however, the court found no such conflict because "the duty of the Attorney General to appear for and defend the State or its agencies in actions in

292 Id. at 548, 359 S.E.2d at 480. 293 N.C. Const. art. III, 1.

294 See Thornburg, 320 N.C. at 545, 359 S.E.2d at 479.

295 See State ex rel. Attorney General v. Knight, 169 N.C. 333, 85 S.E. 418 (1915). In Knight, decided prior to women's suffrage, the Governor had appointed a woman to be a notary public pursuant to a 1915 act authorizing him to appoint women as well as men to be notaries and declaring the position of notary not to be an "office"; he declined to appoint more than one woman until the courts determined the validity of the act. See id. at 334, 85 S.E. at 418-19. The Governor apparently determined that the act was unconstitutional and had the attorney general challenge it. The court agreed, holding that the position was an "office" and that, because the appointed woman could not vote, she could not hold the office. See id. at 353-54, 85 S.E. at 428. Of course, more recent precedent establishes that the governor himself has standing in a declaratory judgment action regarding statutes. See State ex rel. Hunt v. North Carolina Reinsurance Facility, 302 N.C. 274, 280-81, 275 S.E.2d 399, 400-01 (1981) (where both the Governor and commissioner of insurance were represented by the attorney general).

296 See Thornburg, 320 N.C. at 546, 359 S.E.2d at 480, citing Tice v. Department of Transp., 67 N.C. App. 48, 312 S.E.2d 241 (1984). In Tice, a case in which the attorney general was defending the department of transportation, the court of appeals held that the attorney general could not enter into a consent judgment with the plaintiff without the approval of the executive-department client. See id. at 49, 312 S.E.2d at 242. While recognizing that the attorney general has control in actions and appeals prosecuted for the state by him, citing State v. Thompson, 10 N.C. (3 Hawks) 613 (1825), the court concluded that when the attorney general was defending a state executive department headed by an appointee of the governor, the traditional attorney-client rule applied and that the client controlled the attorney general's action. See Tice, 67 N.C. App. at 51, 53-55, 312 S.E.2d at 243, 244-45. In supporting its conclusion, the court stated: The Governor is a constitutional officer elected by the qualified voters of the State. The executive power of the State is vested in him; and he has the duty to supervise the official conduct of all executive officers. The Attorney General is a constitutional officer elected independently of the Governor; is the head of the Department of Justice; and has the duty to supervise that Department's activities. The constitutional independence of these offices, and their differing functions and duties, create clear potential for conflict between their respective holders. In the event of such conflict, power in the Attorney General to resolve, without their consent, controversies involving agencies or departments under the supervision of the Governor, could be abused by exercise in a manner effectively derogative of the Governor's constitutional duties to exercise executive power and to supervise the official conduct of all executive officers.

Tice, 67 N.C. App. at 55, 312 S.E.2d at 245 (Whichard, J.) (citations omitted). Judge Whichard later became a North Carolina Supreme Court justice.

297 See, e.g., Republican Party of N.C. v. Martin, 980 F.2d 943, 946-47 (4th Cir.), cert. denied, 510 U.S. 828 (1993), on remand, 841 F. Supp. 722 (E.D.N.C. 1994), aff'd, 27 F.3d 563 (4th Cir. 1994) (unpublished opinion) (involving constitutional challenge to statewide election of superior court judges). For a recent example of potential conflict between the governor and the attorney general, see House Select Committee For Personnel Review Report, 1998 Sess. (N.C. 1998). That legislative committee found that the Governor's office entered into a $ 100,000 settlement-payment agreement with a state employee "with virtually no oversight by the Attorney General's office." Id. at 3-4. The committee recommended that the Governor's office not involve itself in legal settlements with any state employee not employed in the Governor's office absent a request from the attorney general. Id. at 8.

298 Thornburg, 320 N.C. at 546, 359 S.E.2d at 480. 190/384 Page 29 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA which the State may be a party or interested is not in derogation of or inconsistent with the executive power vested by the constitution in the Governor." 299 Whatever the potential meaning of those statements, their immediate import is clear: The court will resolve such conflicts on a case-by-case basis.

C. The Governor's Power to Appoint Officers

Such a "potential for conflict" as recognized in Thornburg 300 had also arisen in Martin v. Melott, 301 decided the same day as Thornburg. In Melott, the Attorney General opposed the Governor's contentions that certain statutory appointment provisions were unconstitutional. 302 The Attorney General prevailed, and Governor Martin's challenge under the constitutional appointments clause of statutory provisions for non-gubernatorial appointment of a statutory officer received no judicial support. The Melott three-justice plurality [*2091] opinion, 303 the two-justice concurring opinion, 304 and the single-justice dissenting opinion all rejected the Governor's appointments clause challenge. 305

The 1971 appointments clause provides, "The 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." 306 Each word and phrase in the clause had settled judicial construction, 307 and the phrase "not otherwise provided for" always "meant unless provided for by the Constitution itself." 308 The original 1868 clause redundantly added after "all officers" two phrases, "whose offices are established by this Constitution, or which shall be created by law." 309 The 1875 amendments, discussed above, 310 had eliminated the phrase "or which shall be created by law," or statutory officers, restricting "all officers" subject to the clause to those "whose offices are established by this Constitution," or constitutional officers. 311 Under the 1875 amendments to the appointments clause, the legislature again constitutionally controlled the filling of offices created by statute, as it had done before 1868. As explained by the supreme court in its last appointments case under that clause before adoption of the

299 Id.

300 Id.

301 320 N.C. 518, 359 S.E.2d 783 (1987) (plurality opinion).

302 See id. at 519-20, 359 S.E.2d at 785 (plurality opinion).

303 See id. at 520, 359 S.E.2d at 785 (plurality opinion). Justice Webb wrote the opinion and was joined by Justices Frye and Mitchell. See id. at 518, 520, 359 S.E.2d at 784-85.

304 See id. at 524, 359 S.E.2d at 787 (Meyer, J., concurring in result). Justice Whichard joined in the opinion. See id. at 518, 359 S.E.2d at 784.

305 See id. at 528, 359 S.E.2d at 789 (Martin, J., dissenting).

306 N.C. Const. art. III, 5(8).

307 See Melott, 320 N.C. at 520-21, 359 S.E.2d at 785 (plurality opinion) (citing State ex rel. Salisbury v. Croom, 167 N.C. 223, 83 S.E. 354 (1914); Ewart v. Jones, 116 N.C. 570, 21 S.E. 787 (1895); and People ex rel. Cloud v. Wilson, 72 N.C. 155 (1875)). The Melott plurality did not find those prior interpretations binding. See Melott, 320 N.C. at 521, 359 S.E.2d at 785 (plurality opinion).

308 Croom, 167 N.C. at 226, 83 S.E. at 355. The Melott plurality did not find that prior interpretation binding. See Melott, 320 N.C. at 521, 359 S.E.2d at 785 (plurality opinion).

309 See id. at 521, 359 S.E.2d at 786 (plurality opinion). 310 See supra text accompanying notes 63-70.

311 Melott, 320 N.C. at 521-22, 359 S.E.2d at 785-86 (plurality opinion). 191/384 Page 30 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Constitution of 1971, all statutory officers were to be appointed as provided by the legislature. 312 The drafters of the 1971 appointments clause realized that the prior clause had been emasculated by the 1875 amendments and had become meaningless because no constitutional officers existed whose [*2092] appointments were not otherwise provided for in the constitution. 313 In their drafting, the authors first deleted the prior meaningless clause altogether, but then redrafted it by simply striking the phrase that formerly restricted "all officers" to constitutional officers. 314

Based on that history and precedents for constitutional interpretation, Governor Martin contended that the new 1971 appointments clause applied to the appointment of statutory officers whose appointments are not otherwise provided for in the constitution. 315 He argued that only the governor, with the advice and consent of the Senate under the appointments clause, could appoint the new director of the new statutorily created state agency. 316

The three-justice plurality glossed over the clause's convoluted history 317 and dismissed prior judicial construction of the controlling phrase "whose appointments are not otherwise provided for" as dictum or distinguishable. 318 The plurality ignored the early explanation of a justice who had been a delegate to the constitutional convention that first applied the language in North Carolina and who was an authority on the constitution: "To read the words as applying to the act of Assembly creating the office, would make them useless." 319 Instead, the plurality concluded, "We cannot say that the

312 Croom, 167 N.C. at 226, 83 S.E. at 355 (involving directorates of central state hospital; dispute between an appointee of a former governor and an appointee of a successor governor) (quoting State ex. rel. Cherry v. Burns, 124 N.C. 761, 761, 33 S.E. 136, 136 (1899)).

313 See Record on Appeal, Tr. 149-54, 168-71, Melott (No. 61PA87) (discussing Plaintiff's Exhibits 26, 28, and 29A). 314 See Record on Appeal, Tr. 92-113, Melott (No. 61PA87) (discussing Plaintiff's Exhibits 26, 28, 30, 31 and 38).

315 See Melott, 320 N.C. at 520-21, 359 S.E.2d at 77-85 (plurality opinion).

316 See id. at 520-21, 359 S.E.2d at 785 (plurality opinion).

317 A composite history of the appointments clause is described below. The full text of the original clause in the Constitution of 1868, article III, section 10, is shown. Brackets set out the text deleted by the 1875 amendments. Parentheses set out the text deleted by the 1971 "revision and amendment." The italicized text is the resulting Constitution of 1971, article III, section 5(8): Appointments. The Governor shall nominate (,) and by and with the advice and consent of a majority of the Senators (elect,) appoint [,] all officers (whose offices are established by this Constitution,) [or which shall be created by law,] (and) whose appointments are not otherwise provided for [, and no such officer shall be appointed or elected by the General Assembly]. N.C. Const. of 1971, art. III, 5(8); N.C. Const. of 1868, art. III, 10 (amended 1875); N.C. Const. of 1868, art. III, 10.

318 See Melott, 320 N.C. at 520-21, 359 S.E.2d at 785 (plurality opinion). The plurality acknowledged that "there is language to this effect in these cases," id. (plurality opinion) (referring to cases cited in supra note 307), but said "the language is not necessary to the holding in any of them." Id. at 20, 359 S.E.2d at 785 (plurality opinion).

319 Railroad v. Holden, 63 N.C. 410, 423 (1869) (Rodman, J.). See Journal of the Constitutional Convention of the State of North Carolina at its Session 1868, 483-84 (1868) (noting Justice Rodman's address to the North Carolina Constitutional Convention of 1868 on the subject of the changes to the executive power). The phrase "not otherwise provided for," used in the North Carolina Constitution of 1868, was used earlier by Madison, when it clearly meant "not otherwise provided for" in the Federal Constitution. See James Madison, Notes of Debates in the Federal Convention of 1787, 45-48, 120, 310 (Ohio U. Press ed. 1966). People ex rel. Nichols v. McKee reviewed the officers whose appointments were "otherwise provided for" in the constitution of 1868. 68 N.C. at 430-38. "The true test is, Where does the Constitution lodge the power of electing the various public agents of the government?" Trustees of the Univ. of N.C. v. McIver, 72 N.C 76, 85 (1875) (addressing the election of university trustees by the General Assembly pursuant to 1873 constitutional amendment). Under the Constitution of 1971, appointments "otherwise provided for" are: members of the State Board of Education (Art. IX, 4(1): "members appointed by the Governor, subject to confirmation by the General Assembly in joint session") (see also N.C. Gen. Stat. 115C-10 (1997) (describing appointment of the Board)); magistrates (Art. IV, 10: appointed by senior regular resident superior court judge from nomination submitted by clerk of court); trustees of the University of North Carolina and other institutions of higher education (Art. IX, 8: the General Assembly shall provide for their selection); officers of the Senate (Art. II, 14(1): the Senate elects); officers of the House (Art. II, 15: the House elects); officers of counties, cities, and towns (Art. VII, 1: the General Assembly shall provide). Elected officers are the governor (Art. III, 2(1)), lieutenant governor (id.), secretary of state (Art. III, 7(1)), auditor (id.), treasurer (id.), superintendent of public instruction (id.), attorney 192/384 Page 31 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

[*2093] phrase "whose appointments are not otherwise provided for' has such a well settled judicial construction that we must use it in this case." 320 Thus, under the plurality opinion, the General Assembly could provide otherwise by statute for the appointment of the statutory officer at issue. 321

The plurality correctly noted that the revisers of the constitution could have proposed adding to the phrase "otherwise provided for" the restrictive phrase "in the Constitution." The plurality concluded that because the revisers made no such proposal "it is only reasonable to conclude they intended to increase the Governor's power from making appointments of constitutional officers to all officers whose appointments are not otherwise provided for." 322 Obviously confusing or obfuscating, that statement ignores the effect of the plurality's illogical interpretation of the appointments clause, expressed as the following fallacious syllogism: A, the 1875 appointments clause was meaningless; B, the revisers deleted the meaningless clause in their draft and then re-drafted it into a new clause; therefore C, the new amended clause as adopted is virtually [*2094] meaningless. 323

The two-justice concurring opinion inexplicably failed to interpret the appointments clause, but implicitly agreed with the plurality's interpretation of it. 324 The lone dissenter, on the separation-of-powers grounds discussed above, agreed with the plurality regarding the appointments clause, but without elaboration. On the meaning of the appointments clause, the dissenter was satisfied with "a few preliminary observations," including a simple formulation and a summary conclusion. 325

Thus, six justices interpreted the appointments clause to mean, in effect, that without an explicit constitutional provision to the contrary, the General Assembly may provide for the appointment of statutory officers, and only if it makes no statutory provision for the appointment of a statutory officer does the governor's appointment power under the appointments clause

general (id.), commissioner of agriculture (id.), commissioner of labor (id.), commissioner of insurance (id.), justices of the supreme court (Art. IV, 16), judges of the court of appeals (id.), regular judges of superior court (id.), clerk of superior court (Art. IV, 9(3)), district attorneys (Art. IV, 18(1)), and sheriffs (Art. VII, 2).

320 Melott, 320 N.C. at 521, 359 S.E.2d at 785 (plurality opinion) (quoting N.C. Const. art. III, 5(8)).

321 See id. at 521-22, 359 S.E.2d at 785-86.

322 Id. at 522, 359 S.E.2d at 785. 323 See Record on Appeal, Tr. 92, 149-50, 168-70, Melott (No. 61PA87) (referencing Plaintiff's Exhibit 26). A basic editorial rule of the Constitution Study Commission of 1968 was to omit "provisions that we deemed to be legislative in nature and therefore inappropriate to the constitution." 1968 Report, supra note 100, at 29; see also Sanders, supra note 122, at 91 (noting that the Commission omitted legislative provisions); Record on Appeal, Tr. 125-27, Melott (No. 61PA87) (same). Contradicting those earlier writings, their author later proffered an explanation that the new appointments clause "provided a means for the filling of offices constitutionally or statutorily created for which no other provision was made by Constitution or statute to fill." Record on Appeal, Tr. 153, Melott (No. 61PA87) (stating the testimony of John L. Sanders). Of course, there are no such constitutional offices, and should there be any such statutory offices, the new appointments clause would be rendered merely "legislative in nature." Mr. Sanders had apparently never considered the appointments clause to be noteworthy; in his articles on constitutional history, he did not note it at all and apparently saw no significance in the adoption of the clause in 1868 or in its amendment in 1875. See Sanders, supra note 70 (making no mention of the significance of the appointments clause); Sanders, supra note 122 (same); Record on Appeal, Tr. 161-62, Melott (No. 61PA87) (same). He apparently once thought that after the 1875 amendments the appointments clause "was left substantially intact." Sanders, supra note 70, at 796-97; Report, supra note 100, at 106 (noting that John L. Sanders thought the appointments clause was left intact after the 1875 amendments). At an early stage in the Constitution Study Commission's work in 1968, when Mr. Sanders was assisting its subcommittee on the executive, Mr. Sanders recommended no change in the former clause although that subcommittee's substantive proposal was inconsistent with it and although Mr. Sanders says that he then knew that the former clause was meaningless. See Record on Appeal, Tr. 150, 167-68, Melott (No. 61PA87) (referencing Plaintiff's Exhibit 18). In fairness to Mr. Sanders, it is noted that only one earlier historian of the era of adoption of the original appointments clause noted the clause, and he noted only that "all nominations of the governor had to be confirmed by the Senate." Hamilton, supra note 47, at 249 (1906).

324 See Melott, 320 N.C. at 524, 359 S.E.2d at 787 (Meyer, J., concurring in result).

325 See id. at 528-29, 533, 359 S.E.2d at 789, 792 (Martin, J., dissenting). 193/384 Page 32 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA become effective. 326 Perhaps of limited precedential effect, the Martin v. Melott opinions may be [*2095] distinguished or disowned should another appointment challenge arise under different circumstances and confront the court with a new opportunity to give the appointments clause its plain meaning. 327 As a result of Martin v. Melott, however, the appointments clause now lies dormant, virtually meaningless, and the General Assembly, not the governor, constitutionally controls the appointment of state statutory officers.

IV. Executive Hiring and Firing of Employees

A. The Governor's Selection of Other Subordinates

As the Governor was losing the state battle for the power to appoint executive officers at the top of the state bureaucracy, three former state employees challenged, on federal constitutional grounds in federal district court, the governor's ability to influence the bureaucracy at lower levels. The three former employees had been exempt from protection under the State Personnel Act as holders of "policymaking positions" as designated earlier by Governor Hunt and, thus, were employees at will. 328 They were dismissed early after Governor Martin's 1985 incumbency, and they each filed civil actions against the Governor and the appointed department heads who had dismissed them. 329 In Stott v. Martin the three actions were consolidated, six other department heads appointed by the Governor were joined as defendants, and the proceedings were certified as a class action on behalf of approximately 130 other former employees dismissed in the Martin administration. 330 The class action became a political cause celebre. 331

The former employees alleged that they were discharged because of their political party affiliation and political activities, in violation of [*2096] their First Amendment rights, and premised their claims on the United States Supreme Court's Elrod v. Burns 332 and Branti v. Finkel 333 decisions. Elrod repudiated patronage-style discharges based solely on political party affiliation of certain lower-level public employees, concluding that the employees were protected from such discharges by the First Amendment. 334 The Court recognized, however, that for a state government to be responsive to the needs of the people, the elected officials and their higher-level appointees must have some subordinates also responsive to their political mandates

326 See supra note 323. 327 See Coble, supra note 19, at 687 (noting that "Melott's importance may be diminished somewhat, since it is only a plurality decision and it has been criticized as inconsistent with previous separation of powers decisions"); see also Winfree, supra note 207, at 1117 (criticizing Melott); Devlin, supra note 19, at 1246 & nn.141-44 (criticizing Melott).

328 N.C. Gen. Stat. 126-1, 126-5 (1999). 329 See Stott v. Martin, No. 85-818-CIV-5 (E.D.N.C. 1985); Register v. Martin, No. 86-650-CIV-5 (E.D.N.C. 1986); Cayton v. Martin, No. 86-683-CIV-5 (E.D.N.C. 1986).

330 See Stott I, 725 F. Supp. 1365, 1380-81 (E.D.N.C 1989); see also Martin H. Brinkley, Note, Despoiling the Spoils: Rutan v. Republican Party of Illinois, 69 N.C. L. Rev. 719, 737-39 (1991) (discussing Stott I).

331 See Beyle, supra note 55, at 34 (noting that the Stott I was "a pivotal case with considerable national interest because it is the first case to directly challenge a governor's power of removal").

332 427 U.S. 347 (1976) (plurality opinion) (holding it unconstitutional to discharge deputy sheriffs because of their political party affiliation).

333 445 U.S. 507 (1980) (holding it unconstitutional to discharge assistant public defenders because of their political party affiliation). For a survey of subsequent lower-court cases, see generally Susan Lorde Martin, A Decade of Branti Decisions: A Government Official's Guide to Patronage Dismissals, 39 Am. U. L. Rev. 11 (1989). For subsequent Supreme Court Elrod-Branti political affiliation decisions, see generally Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) (extending the Elrod-Branti principles from discharge cases to hiring and promotion cases), and O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (extending the Elrod-Branti principles from employees to independent contractors).

334 See Elrod, 427 U.S. at 350-51, 372-73. 194/384 Page 33 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA and, therefore, not constitutionally protected from discharge because of political affiliation. 335 For such unprotected subordinates, Elrod stated the determinative standards to be the confidential or policy-making nature of the subordinates' positions, but Branti subsequently expounded a justification of political affiliation for such subordinates where "party affiliation is an appropriate requirement for the effective performance of the public office involved." 336 Under those "skeletal teachings," a considerable body of case law had been decided. 337

The district court in Stott v. Martin, after class certification, ruled on motions for summary judgment and (1) dismissed the claims of fifty-five class members, (2) left sixty-three pending of which it concluded forty-six were protected from discharge for political reasons, and (3) deferred ruling on others. 338 On interlocutory appeal, the Fourth Circuit invalidated the class certification, 339 and on remand the district court dismissed the three initial claims on the merits, thereby ending the proceedings. 340

[*2097] Although the issues in Stott were matters of federal law, the claims arose from state action under the State Personnel Act. 341 The Act permitted the Governor to designate as exempt from civil service protection employees within his office and a limited number of employees in each of the nine departments headed by his appointees. 342 Governor Hunt had designated approximately 1500 state employees as exempt under the Act. 343 His successor, Governor Martin, established a primary goal of reducing the number of exempt positions. 344

Nevertheless, Governor Martin was a Republican following a Democrat, and department secretaries appointed by Governor Martin discharged some exempt employees left over from the Hunt administration. The district court had "found that the central issue in this case was whether the Martin administration engaged in a policy and practice of firing state government employees solely because of their political affiliation or activities." 345 The Fourth Circuit concluded, however, that in Elrod-Branti

335 See id. at 367-68, 372.

336 Branti, 445 U.S. at 518.

337 Jimenez Fuentes v. Torres Gatzambide, 807 F.2d 236, 240 (1st Cir. 1986) (en banc).

338 Stott I, 725 F. Supp. 1365, 1387-1437 (E.D.N.C. 1989).

339 Stott II, 916 F.2d 134, 143-46 (4th Cir. 1990).

340 Stott III, 783 F. Supp. 970, 993 (E.D.N.C. 1992).

341 See Stott I, 725 F. Supp. at 1380 (noting North Carolina's Personnel Act); see also Jenkins v. Medford, 119 F.3d 1156, 1162-64 (4th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 881 (1998) (noting that the statutory provisions mirror the constitutional standards).

342 See Stott II, 916 F.2d at 136-37, 142-43.

343 Id. at 137 n.2.

344 See id. at 138-39. The Fourth Circuit noted: Before us is a situation where Governor Martin was attempting to bring the North Carolina employment scheme into conformity with the civil employee statute by cutting down on the number of exempt positions extant in North Carolina. Unfortunately, Governor Martin was faced with the task of trimming exempt positions that under the statute most likely should never have been so designated. This we find to be bipartisan decision and not a decision based on the governor's affiliation to the Republican party.

Id. at 142 n.11.

345 Id. at 138. 195/384 Page 34 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA claims the "mere allegation of political patronage dismissal falls short of stating a cause of action capable of class treatment. The inquiry must focus on the claim of the individual." 346

For an Elrod-Branti inquiry, which requires difficult scrutiny, 347 the Fourth Circuit adopted a two-part test formulated by the First Circuit in its numerous decisions arising from the 1984 elections. The initial inquiry, derived from Branti, examines "whether the position at issue, no matter how policy-influencing or confidential it may be, relates to "partisan political interests … [or] concerns.' " 348 Then, if [*2098] partisan political interests are implicated by the position, the court must examine the position's particular responsibilities "to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement." 349 The Fourth Circuit reviewed numerous cases holding that employees in certain positions, such as a confidential secretary or attorney, are subject to removal based on political affiliation, as well as other cases holding that certain employees, such as road graders and bookkeepers, are not. 350 Those cases set the parameters for the district court in its individual inquiries on remand. 351

In reaching its decision, the Fourth Circuit recognized the importance of "political patronage as an accepted and necessary practice in democratic governance." 352 Agreeing that there can be " "a rational connection between shared ideology and job performance,' " which " "would exempt from protection most policymaking, and confidential employees,' " 353 the Fourth Circuit concluded that the Supreme Court had affirmed, in its subsequent Rutan decision, "the Elrod-Branti principle that "a government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high level employees on the basis of their political views.' " 354 Concluding that Stott exemplified that interpretation, the Fourth Circuit found in the statutory provisions for exemption from civil service protection presumptions of exceptions from Elrod-Branti protection and a rationale for allowing "the governor to employ top level state employees on an at-will basis, and to reposition these employees as he felt necessary in order to further the agenda of the administration." 355 For the Fourth Circuit, an Elrod-Branti determination "is whether a particular position is one that requires, as a qualification for its performance, political affiliation. If it does, then dismissal or demotion is within the bounds of the Constitution." 356

Stott remains controlling authority in the Fourth Circuit, as [*2099] emphasized recently in Jenkins v. Medford. 357 Although Jenkins did not involve gubernatorial patronage, the court's decision that a newly elected sheriff may lawfully dismiss deputy sheriffs who supported his opponent in the election emphasized electoral politics. As the Jenkins court explained, "The triumph of one candidate indicates voter approval of the candidate's espoused platform and general agreement with the candidate's

346 Id. at 141. 347 See id.

348 Id. at 141-42 (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc)).

349 Id. at 142 (quoting Jimenez Fuentes, 807 F.2d at 240). 350 See id. at 144-45.

351 See Stott III, 783 F. Supp. 970, 993 (E.D.N.C. 1992).

352 Stott II, 916 F.2d at 141 (citing Ecker v. Cohalan, 542 F. Supp. 896, 903 (E.D.N.Y. 1982)).

353 Id. at 142 (quoting Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988)).

354 Id. at 142 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 74 (1990)).

355 Id. at 142.

356 Id. at 143.

357 119 F.3d 1156 (4th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 881 (1998). 196/384 Page 35 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

"expressed political agenda.' " 358 In such situations, certainly applicable in gubernatorial elections, party affiliation or campaign activity "serves as a proxy for loyalty." 359 Noting that Branti itself recognized that party affiliation may be a proxy for loyalty and stating that Stott refined the Elrod-Branti inquiry, the Fourth Circuit observed that a governor may appropriately conclude that assistants such as speechwriters and communicators with the press and legislature should share his political beliefs and party affiliation. 360 Thus, in Fourth Circuit patronage cases, courts are to apply a Stott-type analysis to the specific position at issue to determine whether loyalty or its proxy, political party affiliation, "is an appropriate requirement for the job." 361 As Branti cautioned, however, "the ultimate inquiry is not whether the label "policymaker' or "confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 362

B. The Governor's Selection of Subordinates and the Courts

As Stott v. Martin illustrates, the governor's selection of subordinates, as well as state personnel policies and practices, are affected by certain federal laws, including the civil rights act prohibiting deprivation of citizens' rights under color of state law. 363 That act applies to the governor and other state executive officers, and they may be subject to prospective injunctive relief against violating those laws in appropriate circumstances. 364 Federal civil [*2100] rights claims can subject the governor to discovery, potential personal liability for damages, and prospective injunctive relief in his official capacity. As a result, the governor's hiring and firing of subordinates may be subject to scrutiny and control by federal courts.

In Stott, the district court subjected Governor Martin's personnel policies and practices to discovery, and the Governor was deposed before the district judge pursuant to a protective order. 365 Amid some controversy, other discovery occurred in the case but with no formal delineation of the scope of potential discovery of the state's executive. 366 Subsequently, in Republican Party of North Carolina v. Martin, 367 the district court established that potential discovery of the governor is indeed broad. 368 Republican Party involved a challenge to the constitutionality of a statute 369 that Governor Martin had advocated amending. 370 Although the Governor was only a nominal party in the action, 371 another party served him with a

358 Id. at 1162 (quoting Upton v. Thompson, 930 F.2d 1209, 1215 (7th Cir. 1991)). 359 Id. at 1164 & n.62.

360 See id. at 1164 n.62 (quoting Branti v. Finkel, 445 U.S. 507, 518 (1980)). 361 Id. at 1164.

362 O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 719 (1996) (quoting Branti, 445 U.S. at 518).

363 See Act of April 20, 1871, ch. 22, 1, 17 Stat. 13, 13-15 (1887) (codified at 42 U.S.C. 1983 (1994)).

364 See Kentucky v. Graham, 473 U.S. 159, 161-71 (1985) (involving a civil suit against a state official in his personal capacity stemming from a warrantless search); Ex Parte Young, 209 U.S. 123, 126-204 (1908) (addressing the Attorney General's being held in contempt for violating state laws); see also Corum v. University of N.C., 330 N.C. 761, 789, 413 S.E.2d 276, 293-94 (1992) (barring claims against state officials in their personal capacity when only monetary damages are sought).

365 See Stott I, 725 F. Supp. 1365 (E.D.N.C. 1989) (order dated May 14, 1987). 366 See id.

367 136 F.R.D. 421 (E.D.N.C. 1991), decided on appeal on other grounds, 980 F.2d 943 (4th Cir. 1992). 368 See Republican Party of N.C., No. 88-263-CIV-5-F, at 23 (E.D.N.C. Jan. 18, 1991) (order demanding compliance with subpoena); Republican Party of N.C., No. 88-263-CIV-5-F, at 4-5 (E.D.N.C. Nov. 1990) (order denying a motion for protective order and holding in abeyance a motion to quash subpoena).

369 See Republican Party of N.C., 980 F.2d at 946-48. 370 See I Addresses and Public Papers of Governor James G. Martin 35-36 (1992). 197/384 Page 36 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA subpoena that commanded him to appear at a deposition and to bring all documents related to the statute and to the plaintiffs' contention that it was unconstitutional. 372 Governor Martin moved to quash the subpoena and sought a protective order. 373 Although recognizing that a governor should not be compelled to testify at a deposition absent a clear showing that the discovery is essential to prevent prejudice or injustice to the party requesting it, the court found that "fairness dictates that [the other party] be allowed to depose Governor Martin with regard to his prospective testimony." 374 Thus, the court denied [*2101] the motion for a protective order and allowed the deposition, subject to specified procedures, including that it be held before the presiding district judge. 375 The court ordered that the motion to quash be held in abeyance pending examination of the documents in camera. It ordered that the documents be delivered to the court under seal, along with briefs discussing the privilege being claimed. 376 The Governor complied, waiving any claim of executive privilege, but continuing to claim that some documents were protected by the attorney-client privilege and the work-product doctrine. After in camera examination, the court disposed of the remaining claims. 377

371 See Republican Party of N.C., 980 F.2d at 946 n.2.

372 See Subpoena Duces Tecum, Republican Party of N.C., No. 88-263-CIV-5-F (E.D.N.C. Mar. 14, 1990). 373 See Motion to Quash Subpoena Pursuant to Rule 45(b) and for Protective Order Pursuant to Rule 26(c) at 4-5, Republican Party of N.C., No. 88-263-CIV-5 (E.D.N.C. Mar. 14, 1990).

374 Republican Party of N.C., No. 88-263-CIV-5-F, at 3-4 (E.D.N.C. Nov. 1990) (order denying a motion for protective order and holding in abeyance a motion to quash subpoena). The court cited only one case, Monti v. State, 563 A.2d 629, 631 (Vt. 1989), for the proposition. See Republican Party of N.C., 88-263-CIV-5-F, at 3; see also United States v. Morgan, 313 U.S. 409, 421-22 (1941) (protecting the Secretary of Agriculture from testifying about his exercise of discretion); Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir. 1982) (upholding the district court's requirement that the discovering party show "specific need" for a deposition of a state governor); Halperin v. Kissinger, 606 F.2d 1192, 1209-10 n.120 (D.C. Cir. 1979) (stating that where a showing of need prevails over a broad claim of privilege, the district court might require that discovery first be made of subordinates before sanctioning discovery that imposes on the time of high-level officials such as the secretary of state), aff'd, 452 U.S. 713 (1981). As the Supreme Court recently noted in denying temporary immunity for the President in a civil action arising out of alleged unofficial acts while he was a state governor prior to his presidency, "sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty." Clinton v. Jones, 520 U.S. 681, 704-05 (1997) (describing presidential responses by written interrogatories, tapes, depositions, and videotaped testimony). The district court has "broad discretion," and "potential burdens … are appropriate matters for the District Court to evaluate in its management of the case. The high respect that is owed to the office of the Chief Executive … is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery." Id. at 706-07.

375 See Republican Party of N.C., No. 88-263-CIV-5, at 4-5 (E.D.N.C. Nov. 7, 1990) (order denying a motion for protective order and holding in abeyance a motion to quash subpoena).

376 See id. at 5-6. The court added: "As to those documents for which executive privilege is claimed, the executive decision to which they relate and the date thereof shall specifically be identified." Id. at 5.

377 See Memorandum in Response to Order, Republican Party of N.C., No. 88-263-CIV-5 (E.D.N.C. May 14, 1990); Republican Party of N.C., No. 88-263-CIV-5, at 2-3 (E.D.N.C. Nov. 7, 1990) (order denying a motion for protective order and holding in abeyance a motion to quash subpoena). The court examined a 32-page list and 369 documents. See Republican Party of N.C., No. 88-263-CIV-5-F, at 2 (E.D.N.C. Jan. 18, 1991) (order demanding compliance with subpoena). In its analysis, the court applied the attorney-client privilege and the work- product doctrine "strictly" and "narrowly." Id. at 8, 16. The court cited Upjohn Co. v. United States, 449 U.S. 383 (1981), and lower-court cases for the attorney-client privilege, see Republican Party of N.C., No. 88-263-CIV-5-F, at 8-14 (E.D.N.C. Jan. 18, 1991) (order demanding compliance with subpoena), and it recognized the Hickman v. Taylor, 329 U.S. 495 (1947), origins and lower-court applications of the work- product doctrine, see Republican Party of N.C., No. 88-263-CIV-5-F, at 15-20 (E.D.N.C. Jan. 18, 1991) (order demanding compliance with subpoena). The court did not discuss the status of the Governor's counsel as state employees, and thus its order did not presage the recent rulings that a federal independent counsel may discover federally employed attorneys regarding discussions at the White House. See infra note 381. 198/384 Page 37 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

[*2102] The doctrine of executive privilege, which Governor Martin asserted and then waived, 378 has a long history and became widely known when the Supreme Court rejected President Nixon's claim of protection from subpoena of the infamous White House tape recordings of his conversations with his aides concerning the Watergate scandal. 379 Although most executive-privilege cases involve claims by the president or other federal officers, variations of the doctrine also apply to state officers. 380 While the doctrine continues to evolve at the presidential level amid some assertions and waivers of it in independent counsel investigations, 381 its application to the governor of North Carolina awaits future developments. 382

[*2103] Distinguished from executive privilege is executive immunity from damages liability. 383 The state, along with its governor and its other executive officers in their official capacities, are absolutely immune from federal liability for damages allegedly arising from any official acts. 384 Damage claims can be asserted against the governor and other executive officers in their individual capacities, however, for alleged deprivations of federal rights under color of state law. The executive officers are protected individually against such claims only by qualified immunity. 385 The Supreme Court has articulated executive officials' qualified immunity as "an immunity from suit rather than a mere defense to liability" that applies "in cases where the legal norms the officials are alleged to have violated were not clearly established at the time." 386

378 See Reply of Governor James G. Martin to Plaintiffs' and Intervenor's Responses at 6-7, Republican Party of N.C., No. 88-263-CIV-5 (E.D.N.C. June 15, 1990) (asserting executive privilege); Memorandum in Support of Motion to Quash Subpoena Pursuant to Rule 45(b) and for Protective Order Pursuant to Rule 26(c) at 3, Republican Party of N.C., No. 88-263-CIV-5, (E.D.N.C. May 14, 1990) (same).

379 See United States v. Nixon, 418 U.S. 683, 713 (1974).

380 See Centifanti v. Nix, 865 F.2d 1422, 1432 (3d Cir. 1989) (denying discovery of a state-agency letter reflecting "the deliberative process of government policymakers" as "protected by the predecisional governmental privilege").

381 See In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263, 1277-78 (D.C. Cir. 1998) (affirming, in the absence of an appeal on the issue of executive privilege, the district court's denial of a claim of governmental attorney-client privilege made by Deputy White House Counsel and Assistant to the President who were subject to subpoena to testify about possible criminal conduct by government officials and others); In re Sealed Case, 121 F.3d 729, 757-62 (D.C. Cir. 1997) (holding that executive privilege was insufficient to stymie production of documents of White House Counsel pertaining to an internal investigation of allegations against former Secretary of Agriculture Mike Espy when the Office of Independent Counsel had made a "sufficient showing of need"); In re Grand Jury Subpoena Duces Tecum, 112 F.3d. 910, 914, 924-26 (8th Cir. 1997) (holding, after a waiver of executive privilege, that attorney-client privilege and work-product doctrine did not protect documents of attorneys from the Office of Counsel to the President pertaining to meetings attended by them with the First Lady from discovery by the Office of Independent Counsel); see also Referral to the United States House of Representatives Pursuant to Title 28, United States Code, 595(c), reprinted in The Starr Report, The Findings of Independent Counsel Kenneth W. Starr on President Clinton and the Lewinsky Affair, at 206-09 (Public Affairs ed. 1998) (discussing President Clinton's assertions of executive privilege during the Monica Lewinsky investigation). For another case not involving executive privilege but rejecting an assertion of protective-function privilege, see In re Sealed Case, 148 F.3d 1073, 1079 (D.C. Cir. 1998). 382 In a recent legislative investigation of a personnel action by the governor's office, evidence was given by the governor's office, apparently without assertion of executive privilege. See House Select Committee For Personnel Review Report, supra note 297, at 3-4.

383 The President has absolute immunity from damages liability predicated on his official acts, see Nixon v. Fitzgerald, 457 U.S. 731, 753-54 (1982), but not his unofficial acts occurring prior to incumbency, see Clinton v. Jones, 520 U.S. 681, 684 (1997).

384 See Kentucky v. Graham, 473 U.S. 159, 165-68 (1985); Ex Parte Young, 209 U.S. 123, 148-49 (1908); John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History 136-52 (1987); see also Alden v. Maine, 119 S. Ct. 2240, 2266 (1999) (holding that a state's immunity from suit is a fundamental aspect of sovereignty preceding ratification of the Constitution and the Eleventh Amendment).

385 See Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974); McConnell v. Adams, 829 F.2d 1319, 1324-26 (4th Cir. 1987); Gibbons v. Bond, 523 F. Supp. 843, 853-54 (W.D. Mo. 1981), aff'd, 668 F.2d 967 (8th Cir. 1982).

386 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). Harlow is the leading qualified immunity case for executive officers. Although it was an action against former federal officials and not one against state officials, the Court made clear that the same standards of qualified immunity apply in either type of action. See Harlow, 457 U.S. at 818 & n.30; see also Johnson v. Fankell, 520 U.S. 911, 914 (1997) ("We have recognized a qualified immunity defense for both federal officials sued under the 199/384 Page 38 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Application of the qualified immunity standard can be problematic in the context of the governor's hiring and firing of subordinates. In the early stages of the Stott litigation, the district court denied the protection of qualified immunity to the Governor and three department heads in connection with the discharges of the [*2104] three initial plaintiffs. 387 The Fourth Circuit did not discuss qualified immunity when it reversed the district court's decision regarding class certification, but it vacated all other orders of the district court. 388 On remand, the district court dismissed the claims of the three named plaintiffs on the merits but declined to decide the issue of qualified immunity. 389

Meanwhile, the First Circuit decided numerous Elrod-Branti claims after the 1984 elections and held that the newly-elected officials were "at least reasonable in believing the law was not clearly established [and] that they [were] entitled to qualified immunity from suit" for dismissing employees of the former administration. 390 The First Circuit concluded that, while the application of the Elrod-Branti test might be clear in some cases, "in others it will be sufficiently fraught with uncertainty that an official could not be faulted for failing to apprehend." 391

Similarly, the Fourth Circuit had noted in 1984 that the law with respect to qualified immunity for the hiring decisions of incoming administrations "is still evolving and is by no means yet authoritatively settled in all its critical aspects." 392 In 1987, the circuit [*2105] held that qualified immunity applies in an Elrod-Branti case. 393 More recently, the Fourth Circuit has emphasized that "despite the [Supreme] Court's guidance lower courts have issued "conflicting and confusing' opinions." 394 implied cause of action … and state officials sued under 42 U.S.C. 1983."); Behrens v. Pelletier, 516 U.S. 299, 305-06 (1996) (describing the qualified immunity defense); Johnson v. Jones, 515 U.S. 304, 314 (1995) (discussing the assertion of qualified immunity in the context of an appeal). The Court recently stated in another context that "immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it.' " Clinton, 520 U.S. at 695 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Before that formulation of qualified immunity, the Court had rejected absolute immunity for a governor and other state officials presumed by the court below to have acted in good faith in ordering the state's national guard to suppress a student uprising on a state university campus. See Scheuer, 416 U.S. at 234-35 (1974).

387 See Stott I, 725 F. Supp 1365, 1441 (E.D.N.C. 1989) (noting the court's previous order denying qualified immunity to defendants). No immediate appeal was taken from that initial denial of qualified immunity; only later, after lengthy proceedings and extensive discovery had occurred and the other department heads appointed by the governor - joined as defendants in 1987 - had claimed qualified immunity, was an assertion made of an interlocutory right of appeal. See id. at 1441-45. The First Circuit had held that an interlocutory appeal is proper following a denial of summary judgment of qualified immunity against such a claim. See De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir. 1986). At this stage, the Stott I court recognized qualified immunity for five department heads against eleven class members' claims and dismissed two department heads as defendants, but the court denied qualified immunity against the remaining approximately 120 class members' claims and the three named plaintiffs' claims, leaving the Governor, seven then-present, and six former department heads as defendants. Stott I, 725 F. Supp. at 1442-46.

388 See Stott II, 916 F.2d at 146; see also Jenkins v. Medford, 119 F.3d 1156, 1165 (4th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 881 (1998) (dismissing a 1983 suit brought against a sheriff by deputies who were fired shortly after the sheriff's election and noting that the dismissal for failure to state a claim "makes it unnecessary for us to consider whether [the sheriff] is entitled to qualified immunity").

389 See Stott III, 783 F. Supp. 970, 993 (E.D.N.C. 1992).

390 De Abadia, 792 F.2d at 1193. 391 Id. For a survey of much of the patronage litigation, see generally Brinkley, supra note 330.

392 Jones v. Dodson, 727 F.2d 1329, 1333 (4th Cir. 1984). The Dodson holding on the Elrod-Branti claim asserted there, protecting a deputy sheriff from discharge, see id. at 1337-39, has since been disapproved by the Fourth Circuit, see Jenkins v. Medford, 119 F.3d 1156, 1164 (4th Cir. 1997) (en banc).

393 See McConnell v. Adams, 829 F.2d 1319, 1324-26 (4th Cir. 1987). As early as 1981, a district court had held that a Governor and a state department head were immune from damages for discharging an employee because of his political affiliation, since the court could not conclude that they "knew or reasonably should have known" that the discharge violated the employees' federal constitutional rights. See Gibbons v. Bond, 523 F. Supp. 843, 854 (W.D. Mo. 1981), aff'd, 668 F.2d 967 (8th Cir. 1982).

394 Jenkins, 119 F.3d at 1160 (quoting Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991)). 200/384 Page 39 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Thus, the district court's initial rejection of qualified immunity in Stott v. Martin, of limited precedential value in any event, should be viewed as clearly erroneous in light of the Fourth Circuit's decisions. 395

The seven years of litigation, extensive discovery of the Governor and nine principal departments of state government, and considerable expense involved in Stott illustrate the potential costs justifying qualified immunity from suit, including "distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service." 396 Arguably, the same principles that establish qualified immunity from damages claims for governors in their individual capacities extend to qualified immunity in their official capacities from injunction claims, but the courts have not yet recognized such an extension. 397 Absent [*2106] such an extension of qualified immunity principles, the governor may be subject to prospective injunctive relief in some circumstances regarding the hiring and firing of subordinates. The potential for such relief has significant implications. For instance, a broad injunction, like that sought by the Stott plaintiffs, would essentially involve judicial management of the personnel policies and practices of the governor and his appointed department heads. 398 In other circumstances, federal courts have ordered prospective injunctive relief, including on-going judicial supervision, for state-action appointments. 399

State separation-of-powers principles constrain the authority of state courts over executive actions, and state courts generally will not compel an executive act. 400 Thus, state courts should not interfere with the governor's authorized appointment or

395 See Stott II, 916 F.2d 134, 146 (4th Cir. 1990) (vacating the district court decision in Stott I, 725 F. Supp. 1365 (E.D.N.C. 1989)).

396 Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).

397 In its leading qualified-immunity case for executive officers, Mitchell v. Forsyth, 472 U.S. 511, 515 (1985), the Supreme Court recognized an approach to qualified immunity for government officials under which the "consequences" of standing trial must be considered to avoid subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery" in cases where the legal norms the officials are alleged to have violated were not clearly established at the time … Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.

Id. at 526 (quoting Harlow, 457 U.S. at 817-18). As the Fourth Circuit recently noted in an interlocutory appeal from a denial of a motion to dismiss, the defense of qualified immunity "exists to "give government officials a right, not merely to avoid "standing trial," but also to avoid the burdens of "such pretrial matters as discovery." ' " Jenkins, 119 F.3d at 1159 (quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell, 472 U.S. at 526)). Elrod-Branti cases, replete with such burdens and much uncertainty, seemingly provide a perfect opportunity for recognizing qualified immunity from injunction claims. Nevertheless, the Stott district court rejected an argument for qualified immunity from injunction made by a successor department head not even alleged to have committed any wrongful act. See Stott I, 725 F. Supp. 1365, 1380, 1440-41, 1446 (E.D.N.C. 1989); Memorandum in Support of Motion for Summary Judgment filed by Defendant Pope, at 24-28, Stott I, 725 F. Supp. 1365 (E.D.N.C. 1989) (Nos. 85-818-CIV-5, 86-650-CIV-5, 86-683-CIV-5).

398 See Stott II, 916 F.2d at 137 & n.4 (noting the Governor and individual department heads as named defendants).

399 See Mayor of Philadelphia v. Educational Equal. League, 415 U.S. 605, 622-23 (1974) (reversing a court-ordered supervision of a new mayor's appointments where the former mayor had discriminated on the basis of race in making appointments); see also McConnell v. Adams, 829 F.2d 1319, 1322 (4th Cir. 1987) (affirming court-ordered reappointment of officials not reappointed solely because of their political party affiliation).

400 See, e.g., Person v. Watts, 184 N.C. 499, 502, 115 S.E. 336, 339 (1922) (dismissing an action for mandamus against the revenue commissioner). Those principles are a matter of state law, and under the "dual sovereignty" of federalism, Printz v. United States, 521 U.S. 898, 918 (1997), the state may distribute its governmental powers among its branches independent of the federal constitutional principle of separation of powers. See State ex rel. Martin v. Melott, 320 N.C. 518, 524, 359 S.E.2d 783, 787 (1987) (plurality opinion). At the federal level, courts are reluctant to compel the executive, especially the president, to perform a discretionary act. See Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion). 201/384 Page 40 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA removal of an executive officer. 401 Judicial review in state court of executive actions may occur in other circumstances, 402 however, including those affecting state employment, as illustrated by two recent cases deciding whether the Governor had correctly designated state employees as [*2107] exempt under the State Personnel Act. 403

Thus, the potential exists for a federal or state court 404 to prevent a governor from firing certain subordinates belonging to an opposing political party, in effect locking political opponents into the bureaucracy. The potential also exists for a court to order a governor to hire a political opponent, in effect giving the opponent the keys to the bureaucracy. Fortunately, however, there is some recognition within the judiciary of the limited role that the courts should play in deciding constitutional claims involving public employment. 405

C. The Old Bureaucratic Model and New Dynamics

Although the Supreme Court rejected the firing of some lower-level public employees on the basis of political-party affiliation in Elrod 406 and Branti, 407 and then rejected hirings on that basis in Rutan, 408 the requirement that states have a republican form of government nevertheless remains. 409 The republican form of government gives voters the right to choose their own officers for [*2108] state government. 410 In order for such a government to be responsive to the people, the elected officials must have some subordinates who are responsive to their election platforms and political priorities. 411 Governor Hunt has

401 See State ex rel. Caldwell v. Wilson, 121 N.C. 323, 344, 28 S.E. 554, 556-57 (1897); James v. Hunt, 43 N.C. App. 109, 120-21, 258 S.E.2d 481, 488 (1979).

402 See Frye Regional Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 43, 510 S.E.2d 159, 162 (1999) (involving judicial review of the Governor's amendment to the state medical facilities plan and holding that the Governor had statutory authority to amend the plan).

403 See, e.g., Powell v. North Carolina Dep't of Transp., 347 N.C. 614, 625, 499 S.E.2d 180, 186 (1998) (upholding Governor Hunt's designation of the director of the North Carolina Highway Beautification Program as policymaking-exempt under the State Personnel Act); North Carolina Dep't of Transp. v. Hodge, 347 N.C. 602, 607, 499 S.E.2d 187, 190 (1998) (rejecting Governor Hunt's designation of departmental internal auditor as an exempt policymaking position under the State Personnel Act).

404 State courts have concurrent jurisdiction with federal courts over claims for deprivation of rights under color of state law pursuant to 42 U.S.C. 1983. See Crump v. Board of Educ., 326 N.C. 603, 614, 392 S.E.2d 579, 585 (1990).

405 See, e.g., Gregory v. Durham County Bd. of Educ., 591 F. Supp. 145, 156 (M.D.N.C. 1984). The Gregory court stated: Federal courts do not pass on the wisdom of the personnel actions challenged or even their fundamental fairness. Rather, the need to preserve the independence of public management and scarce judicial resources, among other considerations, restricts the courts' inquiry to whether the personnel actions qualify under stringent tests promulgated by the Supreme Court as constitutional violations. Id.

406 Elrod v. Burns, 427 U.S. 347, 372-73 (1976).

407 Branti v. Finkel, 445 U.S. 507, 519-20 (1980).

408 Rutan v. Republican Party of Ill., 497 U.S. 62, 65 (1990).

409 See U.S. Const. art. IV, 4. Questions arising under the Guarantee Clause have been regarded as non-justiciable political questions, their resolution resting instead with Congress. See Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849). But cf. New York v. United States, 505 U.S. 144, 185 (1992) (noting that commentators have "suggested that courts should address the merits of [Guarantee Clause] claims, at least in some circumstances" but stating that it "need not resolve this difficult question today"); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) (stating that the "authority of the people of the States to determine the qualifications of their government officials is, of course, not without limit" and noting that "our review of citizenship requirements under the political function exception is less exacting, but it is not absent").

410 See In re Duncan, 139 U.S. 449, 461 (1891).

411 See Jenkins v. Medford, 119 F.3d 1156, 1162 (4th Cir. 1997) (quoting Upton v. Thompson, 930 F.2d 1209, 1215 (7th Cir. 1989)). 202/384 Page 41 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA explained that the inability of the executive to select some loyal subordinates would result in "a rigid bureaucracy that would be completely ineffective in letting the people work their will much as you have in totalitarian societies." 412

As a result, when applying Elrod-Branti, the circuit courts of appeals have recognized certain underlying assumptions about the operation of government. First, Elrod and Branti seek to promote governmental efficiency by permitting decision-makers to mandate policies for implementation by ministerial employees. 413 In such a bureaucracy, an elected official must have loyal policy-making assistants. 414 Second, the courts have acknowledged that "representative government needs a certain amount of leeway for partisan selection of agents in order to work." 415 Accordingly, the Elrod-Branti "appropriateness" standard is a corollary to representative government, and a newly elected administration must have "significant facilitators of policy" who have "personal and partisan loyalty." 416 As one court has explained, loyal subordinates promote the goals of representative democracy, while their absence " "undercuts' such government." 417

Concerns about governmental efficiency and representative government extend beyond the political affiliation of public employees to their political activities. While political affiliation cases are controlled by Elrod-Branti standards, political activity cases are [*2109] controlled by the decisions in Pickering v. Board of Education 418 and Connick v. Meyers, 419 where the Supreme Court applied a balancing test for determining the permissibility of public employees' political activities. 420 The Pickering-Connick test recognizes the need for governmental efficiency by requiring "full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." 421 Citing a century-old case recognizing the legitimacy of promoting efficiency, integrity, and discipline in public service, 422 the Connick Court declared that " "the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.' " 423

412 Deposition of James B. Hunt, Jr., at 87, Stott I, 725 F. Supp. 1365 (E.D.N.C. 1989) (Nos. 85-818-CIV-5, 86-650-CIV-5, 86-683-CIV-5).

413 See Meeks v. Grimes, 779 F.2d 417, 422 (7th Cir. 1985).

414 See id. "As we must recognize, however, no structure can approach the old-fashioned textbook ideal in which bureaucrats merely carry out or execute policy directives chosen for them ...." James M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan 161 (1975). Moreover, "the authors of the United States Constitution … did not foresee the necessity or need of controlling the growth of self- government … The system of checks and balances, ultimately derivative from Montesquieu, has rarely been interpreted to have as one of its objectives the limiting of the growth of the government." Id. at 162.

415 Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986) (en banc). 416 Id.

417 Id. (quoting Elrod v. Burns, 427 U.S. 347, 367 (1976)).

418 391 U.S. 563 (1968).

419 461 U.S. 138 (1983).

420 See id. at 154 (holding that an assistant district attorney who circulated a questionnaire among other employees after a notice of change in case assignments was lawfully discharged for refusing to accept changes and that her communications concerned matters of private interest, not public concern); Pickering, 391 U.S. at 569, 673-75 (holding that a teacher who published criticism of school board policies was wrongfully discharged and that the teacher's interest in public comment must be balanced against the state's interest in promoting efficiency of its employees); see also Stephen Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 Ind. L.J. 43, 44-50 (1988) (describing the Pickering-Connick balancing test).

421 Connick, 461 U.S. at 150.

422 See id. at 150-51 (quoting Ex Parte Curtis, 106 U.S. 371, 373 (1882)).

423 Id. at 150 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring in part and concurring in the result in part)). 203/384 Page 42 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

Nevertheless, the Court long ago rejected Justice Holmes' famous dictum about a public employee's having "a constitutional right to talk politics," but no constitutional right to be a public employee. 424 Public employees have First Amendment protection under the Court's "modern "unconstitutional conditions' doctrine." 425 This doctrine protects against dismissal for refusing to take an oath regarding political affiliation, 426 for publicly or privately criticizing a governmental employer's policies, 427 for expressing hostility prominent political figures (certainly including a governor), 428 for [*2110] other expressive activities, 429 and for making or not making political contributions. 430

Thus, under the Pickering-Connick balancing test, if "a matter of public concern was implicated [by an employee's political activities] the court must consider whether the employee's interest in the speech was outweighed by the employer's "interest in the effective and efficient fulfillment of its responsibilities to the public.' " 431 As the Fifth Circuit concluded, the government has an interest in providing elected officials with "the power to implement policy for which they must answer to the voters. In more familiar language, knowing that the buck stops, and where, is a substantial government interest." 432

In North Carolina state government, the bureaucratic buck supposedly stops with the governor. Under this bureaucratic model, the governor has much power to implement policies through subordinates, subject to the federal constitutional constraints discussed above and the civil service protection provided state employees under the State Personnel Act. 433 Nevertheless, as state government continues to grow both in budget and bureaucracy, 434 some commentators question the governor's ability to manage this extensive bureaucracy effectively, and they advocate a smaller state government that is more effective and

424 Board of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892)).

425 Id.

426 See Keyishian v. Board of Regents, 385 U.S. 589, 608-10 (1967) (holding that a state university could not require a faculty member to certify that he was not a Communist).

427 See Mt. Healthy City Sch. Dist. Bd. of Educ. V. Doyle, 429 U.S. 274, 281-87 (1977) (holding that an untenured teacher could not be discharged because he complained to a radio station about school dress and appearance requirements, but that the public employer may offer proof that it would have discharged him in any event because of altercation with another teacher and for making obscene gestures to students).

428 See Rankin v. McPherson, 483 U.S. 378, 381, 392 (1987) (holding that the discharge of a deputy constable who, upon learning of the assassination attempt on President Reagan, remarked to a co-worker, "if they go for him again, I hope they get him," was unconstitutional).

429 See United States v. Treasury Employees Union, 513 U.S. 454, 470 (1995) (holding that a law forbidding government employees from accepting honoraria "imposes the kind of burden that abridges speech under the First Amendment").

430 See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 (1977) (holding that government employment cannot be conditioned on making or not making financial contributions to particular causes).

431 Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987) (quoting Connick v. Meyers, 461 U.S. 138, 150 (1983)); see also Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996) ("The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern."); Boring v. Buncombe County Bd. of Educ., 136 F.3d. 364, 368 (4th Cir. 1998), cert. denied, 119 S. Ct. 47 (1998) (holding that a public school drama teacher had no First Amendment rights in selecting a particular play because such a decision "does not present a matter of public concern and is nothing more than an ordinary employment dispute").

432 Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir. 1983).

433 See N.C. Gen. Stat. 126-1 to -90 (1999). 434 See Harlan E. Boyles, Keeper of the Public Purse 4-6 (1994); John Hood & Don Carrington, Changing Course II: An Alternative Budget for North Carolina 3 (1997); Michael Lowrey, Feeding at the Trough: Why North Carolina State Taxes and Spending Keep Growing, Carolina J., June/July 1998, at 17. 204/384 Page 43 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA efficient. 435 Several recent [*2111] events have given momentum to advocates for reduction and reform of government. First, the elected Secretary of State resigned in 1996 following an auditor's report of irregularities and mismanagement in his office. 436 Soon thereafter, another high-level official, the appointed State Motor Vehicles Commissioner, resigned amid charges of irregularities and mismanagement. 437 After the Commissioner's resignation, a legislative committee investigated the Department of Motor Vehicles and the Governor's Office because of a settlement payment by the Governor's Office to a former department employee. 438 In addition, the former division director who resigned has pled guilty to a misdemeanor in connection with an earlier investigation of the employee's activities. 439 Displeased with such incidents, the 1997 session of the General Assembly amended the State Personnel Act. 440

D. The Bureaucratic Rank and File: Patronage and Personnel Act Reform

The State Personnel Act was enacted in 1949 441 and was amended several times before the 1997 amendments. 442 Its primary purpose [*2112] remains "to establish for the government of the State a system of personnel administration under the Governor, based on accepted principles of personnel administration and applying the best methods as evolved in government and industry." 443 The Act defines career state employees, 444 establishes the State Personnel Commission appointed by the governor, 445 and establishes the Office of State Personnel and a state personnel director who is appointed by the governor and under the supervision of the Commission. 446 Subject to the governor's approval, the Act empowers the Commission to establish policies and rules governing position classification plans, compensation plans, position qualifications, and other employment terms, including "appointment, promotion, transfer, demotion and suspension of employees" and "separation of

435 See, e.g., John Locke Foundation, Briefing Paper No. 3, Reorganizing State Government 2 (1996). 436 See Twenty Months of Scandal, News & Observer (Raleigh, N.C.), Dec. 7, 1997, at 25A.

437 See id. 438 See House Select Committee For Personnel Review Report, supra note 297, at 3-6. 439 See Twenty Months of Scandal, supra note 436, at 25A.

440 See Act of Aug. 28, 1997, ch. 520, 1-6, 1997 N.C. Sess. Laws 2324, 2324-35 (amending N.C. Gen. Stat. 126-14.2, 126-14.4, 126-5, 126- 34.1, 126-84, 126-85); Act of July 21, 1997, ch. 349, 1-4, 1997 N.C. Sess. Laws 858, 858-62 (amending N.C. Gen. Stat. 126-1, 126-3, 126- 4).

441 See Act of Apr. 1, 1949, ch 718, 1-8, 1949 N.C. Sess. Laws 747, 747-57; see also Act of May 20, 1965, ch. 640, 1-4, 1965 N.C. Sess. Laws 708, 708-13 (abolishing the Merit System Council and the State Personnel Council and establishing a State Personnel Board). "During the 20th century, monumental evolutionary changes occurred with respect to personnel management systems affecting North Carolina's State employees. These changes include milestones such as the adoption of the State Personnel Act … in 1949, and the 1965 establishment of a unified personnel system and the State Personnel Board." House Select Committee For Personnel Review Report, supra note 297, at 15. That legislative committee has recommended creation of a Blue Ribbon Advisory Commission on the 21st Century Vision of the State's Workforce to review the state personnel system and to recommend appropriate legislation for reforming it. See id. at 15-16. Civil service protection began at the federal level with the Civil Service (Pendleton) Act, ch. 27, 22 Stat. 403, 403-07 (1883). See generally Developments in the Law: Public Employment, 97 Harv. L. Rev. 1611, 1619-76 (1984) (describing the evolution of public employment statutes).

442 See, e.g., Act of June 18, 1975, ch. 667, 8-9, 1975 N.C. Sess. Laws 809, 810-11 (amending N.C. Gen. Stat. 126-5); see also North Carolina Dep't of Correction v. Hill, 313 N.C. 481, 486, 329 S.E.2d 377, 380 (1985) (noting that before 1975 the Act contained no provisions exempting policymaking positions from its application). 443 N.C. Gen. Stat. 126-1 (1999).

444 See id. 126-1.1. 445 See id. 126-2. Since 1976, those appointments are subject to confirmation by the General Assembly. See id. 446 See id. 126-3. 205/384 Page 44 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA employees." 447 A major substantive provision protects career state employees under the Act from adverse personnel actions, such as discharge or demotion, without "just cause." 448

The Act applies to all state employees not "exempt." 449 Except for provisions for equal opportunity 450 and privacy of employee records, 451 the Act explicitly exempts constitutional officers, officers and employees of the judiciary, officers and employees of the General Assembly, non-salaried members of boards, committees commissions, and councils, and numerous others, such as certain state university employees. 452 It similarly exempts employees of the Office of the Governor that the governor designates "in his discretion" 453 and extends similar exemption power to the lieutenant governor. 454 The Act also exempts from the "just cause" limitation one "confidential assistant and two confidential secretaries" for each elected or appointed department head as well as "one confidential secretary" for each chief deputy or chief administrative assistant. 455 Before the [*2113] 1997 amendments, the Act separately empowered the governor to designate a limited number of exempt "policymaking positions" within each of the nine departments headed by his appointees. 456 The Act extended similar exemption authority to the eight elected members of the Council of State who head departments. 457

Before and after the 1997 amendments, the governor and the lieutenant governor can control employment of subordinates in their offices, and the governor and the other Council of State members, now with one exception, 458 can control employment of "policymaking positions" in nine and eight departments respectively. In addition, each of those seventeen department heads can control employment of three "confidential" subordinates, and that control extends to one such subordinate for each department chief deputy and chief administrative assistant. 459 The exempt subordinates and policymakers are not entitled to the "just cause" civil service protection otherwise afforded under the Act. 460 Nor are they subject to the Act's prohibitions of certain political activities by state employees. 461 Thus, not only does the Act allow some patronage, it implicitly allows exempt employees to engage in some political activities and to be solicited for political contributions. 462

447 Id. 126-4.

448 See id. 126-35. 449 See id. 126-5(a)(1). 450 See id. 126-16 to 126-19.

451 See id. 126-22 to 126-30. 452 See id. 126-5(c1). 453 See id. 126-5(c1)(6). 454 See id. 126-5(c1)(7). 455 See id. 126-5(c)(2).

456 See N.C. Gen. Stat. 126-5(d)(1), 126-5(b) (1994) (amended 1997). Section 126-5(b) defines such a position as one "delegated with the authority to impose the final decision as to a settled course of action to be followed within a department, agency, or division." Id. 126-5(b)(3). 457 See id. 126-5(d)(1) (1994) (amended 1997).

458 Earlier, the superintendent of public instruction, a member of the Council of State, could designate "exempt policymaking positions," see id. 126-5(d)(1) (1994) (amended 1997), but under the 1997 amendments the state Board of Education may designate both new categories of "exempt positions" in the department of public instruction. See N.C. Gen. Stat. 126-5(d)(2) (1999).

459 See N.C. Gen. Stat. 126-5(c)(2) (1999); N.C. Gen. Stat. 126-5(c)(2) (1994).

460 See N.C. Gen. Stat. 126-35 (1999); N.C. Gen. Stat. 126.5 (1990).

461 See N.C. Gen. Stat. 126-13(a) (1999); N.C. Gen. Stat. 126-13(a) (1992).

462 See N.C. Gen. Stat. 126-14.1(a) (1999); N.C. Gen. Stat. 126-14.1(a) (1992). 206/384 Page 45 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

As publicly reported, Governor Hunt utilized a patronage system during his first two terms. 463 When he first took office in 1977, he followed Governor Holshouser, the first Republican governor this century. 464 In the Holshouser administration, there were only sixty- [*2114] eight employees designated as exempt, although other Holshouser supporters attained state employment in positions then covered by the Act. 465 After taking office, Governor Hunt designated 868 positions as exempt and, therefore, held by employees serving at will; as a result, many Holshouser administration employees were discharged by the Hunt administration. 466 There were approximately 1500 exempt positions when Governor Hunt left office in 1985. 467 Consistent with a goal of the Martin administration, that number was reduced, 468 only to increase again in Governor Hunt's next terms beginning in 1993. 469 Some of the Hunt administration's 1993 changes resulted in litigation, recently resolved by the state supreme court. 470 In 1997, apparently responding to some criticisms of his past personnel policies, Governor Hunt reduced the number of exempt positions from 575 to 99. 471 That reduction in exempt positions, and concomitant increase in protected positions, prompted criticism that Governor Hunt was attempting to force hundreds of his political appointees upon his successor through expanded civil service protections. 472 More significantly, however, Governor Hunt endorsed proposals to amend the State Personnel Act and reform the patronage system he once perfected. 473

The 1997 amendments changed the definitions of exempt positions and reduced their potential number. An "exempt position" now includes an "exempt policymaking position," which retains its earlier definition with the added limitation "that a loyalty to the Governor or other elected department head in their respective offices is reasonably necessary to implement the policies of their offices." 474 The amendments also included a new category of "exempt managerial positions," which are defined as posts having such essential "managerial or programmatic responsibility" that the application of just-cause limitations to discharge or demotion "would [*2115] cause undue disruption to the operations of the agency, department, institution, or division." 475 With the definitional change, "exempt policymaking positions" may be designated as exempt under the Act. Exempt employees have limited civil service protection under the Act, such as equal opportunity and privacy of their employee records, and may be discharged or demoted without just cause. 476 The newly defined "exempt managerial positions" also may be designated as

463 See, e.g., John Hood, Hunt Finds Religion on Patronage, Triangle Bus. J., July 11, 1997, at 63.

464 See id.; Heath, supra note 202, at 19. During the Republican governor's administration, Democrats dominated the General Assembly, and "there was a great hue and cry that the power and discretion of the governor must be checked with regard to" state employees. Deposition of James B. Hunt, Jr., at 65, Stott I, 725 F. Supp. 1365 (E.D.N.C. 1989) (Nos. 85-818-CIV-5, 86-650-CIV-5, 86-683-CIV-5). Major changes in the State Personnel Act resulted. See Act of June 18, 1975, ch. 667, 1-13, 1975 N.C. Sess. Laws 809-13 (amending N.C. Gen. Stat. 126-2 to 126-5).

465 See Hood, supra note 463, at 63. 466 See id.

467 See Stott II, 916 F.2d 134, 137 n.2 (4th Cir. 1990).

468 See id. at 142 n.11.

469 See Hood, supra note 463, at 63. 470 See supra note 403 and accompanying text. 471 See John Wagner, House Approves Patronage-Reform Measure, News & Observer (Raleigh, N.C.), Aug. 28, 1997, at 3A.

472 See id.

473 See Hood, supra note 463, at 63.

474 N.C. Gen. Stat. 126-5(b)(1) to 126-5(b)(3) (1999); see also Jones v. Dodson, 727 F.2d 1329, 1334-35 n.6 (4th Cir. 1984) (describing " "personal political loyalty' situations").

475 N.C. Gen. Stat. 126-5(b)(2) (1999). 476 Id. 126-5(c)(3). 207/384 Page 46 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA exempt under the Act. They are, however, covered by other provisions for employment policies, rules, and plans - not just those for equal opportunity and records privacy. 477 More significantly, as part of a "policy of nonpolitical hiring practices," 478 the "exempt management positions" are covered by new provisions that bar political hirings and promote open and fair competition for employment. 479 Thus, the holders of "exempt managerial" positions may be discharged or demoted regardless of just cause, but they may be hired only pursuant to the new limitations on political hirings and to requirements for open and fair competition for employment. 480

Under the new definitions, the governor may now designate "a total of one hundred exempt policymaking positions throughout" the nine departments headed by his appointees. 481 In addition, for the same departments, the governor may designate "exempt managerial positions in a number up to one percent (1%) of the total number of full-time positions in each" such department. 482 The eight elected department heads of the Council of State, with one exception, may also designate "exempt policymaking positions" and "exempt managerial positions" in their respective departments; each category may consist of twenty positions or one percent of the total number of full-time positions in the department, whichever is greater. 483

The new limitations on political hirings 484 and provisions for open [*2116] and fair competition for employment 485 are added to earlier provisions regarding the political activities of state employees. 486 The General Assembly has established state policies of "nonpolitical hiring" 487 and of hiring "from the pool of the most qualified persons." 488 The General Assembly has directed the State Personnel Commission to adopt rules or policies that assure procedures "that encourage open and fair competition" and "nonpolitical hiring practices." 489 The 1997 amendments also include penalties for violating the new limitations on political hiring. 490 Complaints of adverse employment decisions "because of political affiliation or political influence" may be made through the Office of Administrative Hearings, and its investigation, initial determination, and recommended decision precede a final decision by the State Personnel Commission. 491 Complementary amendments were made to the provisions for contested cases under the State Personnel Act. 492

477 Id. 126-5(c7). 478 Id. 126-14.3(8).

479 See id. 126-5(c7) (applying sections 126-14.2 (limiting political hirings) and 126-14.3 (requiring open and fair competition)). 480 See id. 126-5(c7) (citing the new provisions of sections 126-14.2 and 126-14.3). 481 Id. 126-5(d)(1). 482 Id.

483 See id. 126-5(d)(2). Regarding designations in the Department of Public Instruction after the 1997 amendments, see supra note 458. The 1997 amendments also amended provisions for the governor and the others to request that additional positions be designated as "exempt," with prescribed procedures for forwarding such requests to the General Assembly. See N.C. Gen. Stat. 126-5(d)(2a) (1999).

484 See id. 126-14.2. 485 See id. 126-14.3. 486 See id. 126-13, 126-14, 126-14.1.

487 Id. 126-14.3(8). 488 Id. 126-14.2(a). The General Assembly has mandated that "all State departments, agencies, and institutions shall select from the pool of the most qualified persons for State government employment without regard to political affiliation or political influence." Id. 126-14.2(b).

489 Id. 126-14.3(1), (8).

490 See id. 126-14.4. 491 Id. 492 See id. 126-34.1. 208/384 Page 47 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA

As a result of its investigation into the controversial settlement payment by the Governor's Office to a former Division of Motor Vehicles employee, 493 the General Assembly expanded its "whistle-blowing" 494 and anti-retaliation 495 protections for state employees to cover "reporting to public bodies about matters of public concern, including offering testimony to or testifying before appropriate legislative panels." 496 In light of revelations that some legislators had intervened with the executive branch on behalf of that employee, the General Assembly also declared it "unethical for a legislator to take, promise, or threaten any legislative action … for the purpose of influencing or in retaliation for any action regarding State employee hirings, promotions, grievances, or disciplinary actions subject to" the [*2117] State Personnel Act. 497

In another set of 1997 amendments to the State Personnel Act, the General Assembly expanded the Act's purpose and embraced the concept of decentralizing its administration. 498 The purpose of establishing "a system of personnel administration under the Governor" remains, but it is now accompanied by the collateral purpose of providing "for a decentralized system of personnel administration." 499 The powers and duties of the State Personnel Commission now include establishing policies and rules for delegation of personnel authority "through decentralization agreements with the heads of State agencies, departments, and institutions." 500 The Office of State Personnel, administered and supervised by an appointee of the governor and also subject to supervision by the Commission, now has expanded and specified responsibilities. 501 Those responsibilities include negotiating the newly authorized decentralization agreements for personnel administration. 502 Such agreements with executive-branch agencies must designate a person in the agency to be accountable for the agency's personnel actions. 503 Absent appropriate decentralization agreements, the Office of State Personnel is responsible for administering "centralized programs." 504 Under either a decentralized or centralized program, the head of the agency, department, or institution is ultimately responsible and accountable for compliance with State Personnel Commission policies and rules for their employees. 505

Although reflecting legislative disenchantment with some past patronage practices of the governor, the 1997 amendments nevertheless leave the governor with the power to control employment of significant subordinates, including those in his own office 506 and those in at least one hundred "exempt policymaking positions" in the nine departments headed by his appointees. 507 Just as before, the governor has no direct control of employment in the [*2118] eight departments headed by

493 See House Select Committee For Personnel Review Report, supra note 297, at 1.

494 See N.C. Gen. Stat. 126-84 (1999). 495 See id. 126-85.

496 Id. 126-84(b); see also id. 126-85(a1) ("No State employee shall retaliate against another State employee because the employee or a person acting on behalf of the employee reports or is about to report … any activity described in G.S. 126-84.").

497 Id. 120-86.1 (1998 Supp.); see also House Select Committee For Personnel Review Report, supra note 297, at 18 (quoting section 120- 86.1).

498 See Act of July 21, 1997, ch. 349, 1, 1997 N.C. Sess. Laws 858, 859. 499 N.C. Gen. Stat. 126-1 (1999). 500 Id. 126-4(18). 501 See id. 126-3(b) (establishing "the State Personnel Commission as the policy and rule-making body").

502 See id. 126-3(b)(4). 503 See id. 126-4(18)a. 504 See id. 126-3(b)(5).

505 See id. 126-1. 506 See id. 126-5(c1)(6). 507 See id. 126-5(d)(1). 209/384 Page 48 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA elected members of the Council of State. 508 Furthermore, despite a reported suggestion of depriving the governor of the power to appoint the state personnel director, 509 the 1997 amendments leave the appointment of that position and the appointment of the members of the State Personnel Commission with the governor. 510

V. THE FUTURE OF THE EXECUTIVE BUREAUCRACY

A. The Top of the Bureaucracy - The Future of the Appointment Power

The suggestion that the governor should not appoint the state personnel director illustrates the separation-of-powers problem surviving State ex rel. Martin v. Melott. Although the position is clearly in the executive branch, 511 under the Melott interpretation of the appointments clause, the General Assembly could constitutionally provide for appointment to the position by someone other than the governor, subject only to whatever separation-of-powers constraints survive Melott. 512 That question has been avoided for the time being because the General Assembly continued the statutory provision for appointment of the personnel director by the governor, 513 just as it has continued the provision for appointment by the governor of the heads of the nine departments not controlled by the elected members of the Council of State. 514

The suggestion of non-gubernatorial appointment of the state personnel director also illustrates the problem with the appointments clause as interpreted in Melott and illuminates the need to reconsider that interpretation. As explained above, Melott rendered the clause [*2119] virtually meaningless. 515 If the separation-of-powers clause is to be more than a mere proclamation, however, the appointments clause should not remain meaningless. Should an appropriate case arise, the state supreme court could give meaning to the clause in a corrective decision. 516 The court could also address the issue in an advisory opinion, if it considers a request for one. 517 Judicial correction may be unlikely, however, and a constitutional amendment may be necessary to give the appointments clause meaningful full effect. Although executive power would be

508 See id. 126-5(d)(2); infra notes 512-29 and accompanying text. 509 See Wagner, supra note 471, at 3A. Although that reported proposal was not adopted, another proposal has been made that membership of the State Personnel Commission be expanded from seven to nine members, including one appointed by the governor on the recommendation of the speaker of the house and one on the recommendation of the president pro tem of the senate. See House Select Committee For Personnel Review Report, supra note 297, at 14.

510 See N.C. Gen. Stat. 126-3(a), -2(b) (1999). Since 1976, appointments to the Commission are subject to confirmation by the General Assembly. See id. 511 See id. 126-3(a). 512 See supra notes 207-41 and accompanying text (discussing Melott).

513 See N.C. Gen. Stat. 126-3(a) (1999).

514 See id. 143B-9 (1994). 515 See supra note 323 and accompanying text.

516 Prior to Melott, the last appointments clause case decided by the supreme court was State ex rel. Salisbury v. Croom, 167 N.C. 223, 226, 83 S.E.2d 354, 354-55 (1914). But cf. North Carolina State Bar v. Frazier, 62 N.C. App. 172, 176-77, 302 S.E.2d 648, 651-52 (1983) (stating that legislative appointments did not violate separation of powers, but citing no case law for that statement). Should another appointments clause case arise, the supreme court has ample precedent to overrule Melott. See, e.g., Mial v. Ellington, 134 N.C. 131, 139, 46 S.E. 961, 963- 64 (1903). The Mial court recognized its duty to overrule Hoke v. Henderson, 15 N.C. (1 Dev.) 1 (1833), which had held that an office was a contract and which the court found "stands without support in reason and is opposed to the uniform, unbroken current of authority in both State and Federal courts," thereby creating a duty to overrule it in order to "place our jurisprudence in line with that of the other States and the Federal Government." Mial, 134 N.C. at 139, 156-57, 46 S.E. at 964, 969-70. "The people of the State could not and would not be prohibited and controlled in the management of their own institutions and their public policies by judge-made law, which was denied by all other courts, including the highest at Washington." Id. at 167, 46 S.E. at 973 (Clark, C.J., concurring).

517 See In re Response To Request for Advisory Opinion, 314 N.C. 679, 680, 335 S.E.2d 890, 891 (1985) (noting that, although the "North Carolina Constitution does not authorize the Supreme Court as a Court to issue advisory opinions," the individual justices will occasionally issue such opinions, which are not binding on the court, but which "may be persuasive authority for the points of law addressed"). 210/384 Page 49 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA enhanced by restoring the clause to a meaningful provision for gubernatorial appointment, few people are probably concerned enough to advocate a constitutional amendment. 518 Effective advocacy of a corrective amendment would require strong support in the General Assembly, which presumably is not overly concerned about enhancing the power of the governor. 519 Thus, as a discrete issue, amendment of the appointments clause is not likely, and the clause may remain virtually meaningless for the foreseeable future.

B. Unitary Executive Power - The Future of the "Short Ballot"

A meaningless appointments clause is not the state's only separation-of-powers problem, however, and the need for correction [*2120] is better understood in the context of the short ballot proposals. As discussed above, the voters have long elected eight members of the Council of State who head departments of the state government. 520 Such a fragmented structure, with the governor appointing nine statutorily authorized department heads and eight others being elected pursuant to the constitution, hardly constitutes a unitary executive. 521 Responsibility and accountability are diffused. 522

Proposals for a short ballot, eliminating the election of all but a few of those eight Council of State members and having any replacement positions filled by appointment, have abounded throughout the twentieth century. 523 A short ballot amendment should be adopted in order to promote greater responsibility and accountability throughout the executive branch bureaucracy. Where the cut should be made is debatable public policy, and practical [*2121] political considerations complicate the matter. 524 A serious study of the issue in 1968 concluded that elective independence was appropriate only for the auditor, treasurer, and attorney general. 525 Although executive officers, those three elected officials are presumably competent professionals

518 See Beyle & Dalton, supra note 109, at 10-11; cf. Guillory, supra note 139, at 42 (1988) (discussing prospects for the short ballot and quoting John L. Sanders, who said, " "[A] Governor is not likely to tear his shirt over it.' ").

519 See Beyle & Dalton, supra note 109, at 10-11.

520 See N.C. Const. art. III, 7(1); N.C. Gen. Stat. 143A-11 (Supp. 1998); N.C. Gen. Stat. 143B-6 (1997). 521 See Robin Dorff, Shorten the Ballot: Appointing the Council of State Would Ensure Accountability, Carolina J., Dec. 1992-Jan. 1993, at 12; Guillory, supra note 139, at 40.

522 See Dorff, supra note 521, at 13; Guillory, supra note 139, at 40.

523 See supra notes 85-91 and 130-33 and accompanying text; see also Steelman, supra note 75, at 412 (noting support for the short ballot earlier in the century by the influential newspaper editor Josephus Daniels and the reformist historian Joseph G. de Roulhac Hamilton); Record on Appeal, Plaintiff's Exhibit 19, at 10-13, State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987) (No. 61PA87) (consisting of a paper presented to the Constitution Study Commission of 1968 by political scientist Preston W. Edsall advocating a short ballot amendment to the constitution). The Constitution Study Commission of 1968 unsuccessfully proposed a short ballot amendment under which only the auditor, treasurer, and attorney general would be elected constitutional officers and under which the other five positions could be replaced by appointed statutory officers. See 1968 Report, supra note 100, at 47-49. Most recent attention to the subject of a short ballot has been confined to the single office of the superintendent of public instruction, one of the elected members of the Council of State, who also serves as the secretary and chief administrative officer of the State Board of Education created under the constitution. That focus results from the obvious interest in education policy and the concern that the state performs poorly in public education, and the proposals for an appointive position contemplate greater responsibility and accountability in what is a currently a truly Byzantine bureaucracy. See Guillory, supra note 139, at 41-42 (discussing Governor Martin's support for such a proposal in 1987 following the retirement of a superintendent). Recently, a public-policy foundation proposed a short ballot amendment as well as other executive reorganization permissible without an amendment. See John Locke Foundation, supra note 435, at 3-7. More recently, proposals for gubernatorial appointment have been focused on appellate judges. See Act to Amend the Constitution of North Carolina to Provide for Gubernatorial Appointment of Justices of the Supreme Court and Judges of the Court of Appeals and Retention by Vote of the People, S. 12, 1999 Sess. (N.C. 1999). That proposed constitutional amendment failed legislative approval for submission to the voters. See Rob Christensen, Who Killed Merit Plan for Judges?, News & Observer (Raleigh, N.C.), July 9, 1999, at 3A.

524 See Guillory, supra note 139, at 42 (noting that each elective Council of State member has his own political base and special-interest support, and quoting one member, who said, " "You take one off the ballot and then the question is which one's next.' ").

525 See supra note 130-33 and accompanying text. 211/384 Page 50 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA performing check-and-balance functions. 526 They are not charged constitutionally with taking "care that the laws be faithfully executed." 527 Only the governor is so charged. 528 For the governor to be responsible and accountable, the governor should appoint the other heads of state government departments. 529

Whether the governor's appointment of department heads and other state officers should be restricted by a requirement of Senate advice and consent, as contemplated in the current appointments clause, 530 or subject to confirmation by the General Assembly in joint session, 531 is also a debatable issue of public policy. 532 Political considerations complicate the potential resolution. 533 Again, just as on the issue of the short ballot, the 1968 study concluded that the constitution should be amended to provide for gubernatorial appointment of all department heads without any requirement for legislative consent or confirmation. 534 The General Assembly has implicitly agreed by providing for gubernatorial appointment of nine department heads without requiring consent or confirmation. 535 In [*2122] doing so, the General Assembly has provided a statutory model for gubernatorial appointment of the department heads over much of the executive bureaucracy. This model should be extended by constitutional amendment to all of the executive bureaucracy. 536

V. CONCLUSION

Simple civics lessons provide the model for fulfilling North Carolina's proclaimed separation of powers: With an already powerful legislature to enact the laws and with an independent judiciary to interpret them, the state needs a unitary executive -

526 See N.C. Const. art. III, 7(1)-(2); N.C. Gen. Stat. 143A-25 (prescribing duties of the auditor), -31 (prescribing duties of the treasurer), - 49.1 (prescribing duties of the attorney general) (1994). 527 N.C. Const. art. III, 5(4).

528 See id. 529 See, e.g., National Mun. League, Model State Constitution 72 (6th ed. 1968). 530 See N.C. Const. art. III, 5(8).

531 See id. art. IX, 4(1) (state board of education).

532 See N.C. Gen. Stat. 143B-9 (1997) (providing for gubernatorial appointment of non-elected department heads, and illustrating another public policy option). 533 The North Carolina Senate and House have had different views on the advisability of changing from elective to appointive offices. See Guillory, supra note 139, at 42 (noting that in 1987 the Senate passed an amendment calling for the appointment of the superintendent of public instruction while a House committee rejected the proposal); Christensen, supra note 523 (noting that in 1999, the Senate passed an amendment calling for the appointment of appellate judges while the House rejected the proposal).

534 See supra note 133 and accompanying text.

535 See N.C. Gen. Stat. 143B-9 (1997). The section provides: "The head of each principal State department, except those departments headed by popularly elected officers, shall be appointed by the Governor and serve at his pleasure." Id. Even if the appointments clause of the North Carolina Constitution of 1971, see N.C. Const. art. III, 5(8), were given the interpretation argued by Governor Martin and rejected by the court in Martin v. Melott, see supra notes 216-28 and accompanying text, the General Assembly can dispense with the necessity of Senate consent to gubernatorial appointments. See State ex rel. Howerton v. Tate, 68 N.C. 546, 551 (1873). But cf. State ex rel. Salisbury v. Croom, 167 N.C. 223, 227, 83 S.E. 354, 355 (1914) (emphasizing the Senate's role in the appointment process); University R.R. Co. v. Holden, 63 N.C. 410, 423-24 (1869) (Rodman, J., concurring) (finding no dispensation of consent).

536 Based upon N.C. Gen. Stat. 143B-9, see supra note 535, the constitutional provision for administrative departments within the executive branch, see N.C. Const. art. III, 11, and the history of the appointments clause, see note 317, a proposed amendment would read as follows: The head of each principal administrative department, except those departments headed by popularly elected officers [e.g., the auditor, treasurer, and attorney general], shall be appointed by the Governor and serve at his pleasure, as shall all subordinate officers of such appointed heads of department. The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers who are members of regulatory, quasi-judicial, and temporary agencies and all officers whose appointments are not otherwise provided for in this Constitution, and such officers shall serve at the Governor's pleasure [or, to authorize for-cause limitations on removal of such officers, may be removed by the Governor as by law is provided]. 212/384 Page 51 of 51 ARTICLE:A STUDY IN SEPARATION OF POWERS: EXECUTIVE POWER IN NORTH CAROLINA the governor, often acting through his appointed subordinate officers - to execute them. 537 A unitary executive can be achieved only through a short ballot amendment to the constitution. After nearly a century of unsuccessful advocacy of such reform, perhaps the twenty-first century will bring success. As part of that reform, the governor's power to appoint and remove his subordinate officers should be protected. Such reform would better enable the governor to "take care that the laws be faithfully executed." 538 Then, the powers that the people have delegated to their state government will truly "be forever separate and distinct from each other." 539

Copyright (c) 1999 North Carolina Law Review North Carolina Law Review

End of Document

537 See Calabresi & Prakash, supra note 179, at 544. 538 N.C. Const. art. III, 5(4). 539 Id. art. I, 6. 213/384 214/384 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

OCTOBER, 1983

Reporter 62 N.C.L. Rev. 1 *

Length: 13896 words

Author: BY JOHN V. ORTH +

+ Associate Professor, University of North Carolina School of Law. A.B. 1969, Oberlin; J.D. 1974, M.A. 1975, Ph.D. 1977, Harvard.

Highlight

In 1982 the North Carolina Supreme Court issued two opinions dealing with separation of powers in North Carolina state government. These opinions limit the power of the legislature to appoint its own members to agencies within the executive branch, and restrict the ability of the legislature to delegate legislative functions to a group of its members or to interfere with the budgetary management authority of the executive. Professor Orth challenges the basis for these opinions, examines considerations not addressed by the court, and suggests that the ultimate explanation may lie in public policy concerns. He concludes that public policy may not be served best by the results.

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

North Carolina Constitution, Art. 1, § 6

Text

[*1] Separation of powers is one of the fundamental principles of American constitutionalism on both the federal and state levels. Legislative, executive, and judicial powers are allocated to branches of government independent of each other. The purpose of this separation is the better preservation of the liberty of the citizen. To be effective, government must be endowed with various powers, but every power is subject to abuse. To limit the risk of abuse, the necessary powers of government are divided among three branches. Furthermore, the separation of powers is so contrived that in many cases one power restrains the abuse of another. The principle of restraining one power with another is known as checks and balances; it, too, is one of the fundamental principles of American constitutionalism.

Although separation of powers and the related principle of checks and balances underlie American constitutions, they have rarely figured as such in the important constitutional decisions rendered by American courts. Specific constitutional or statutory provisions have been most often at issue. 1 In early 1982, however, the North Carolina Supreme Court decided a case

1 See, e.g., Chadha v. Immigration & Naturalization Serv., 634 F.2d 408, 420 (9th Cir. 1980), aff'd, 103 S. Ct. 2764 (1983). Although the court of appeals invalidated a federal statute on the ground that it violated separation of powers, it admitted that it had found no prior case holding that "the Legislature has impermissibly invaded the prerogative of the Executive or the Judiciary absent a clause in the [Federal] Constitution which confers the power upon another branch with great specificity." Id. at 420. 215/384 Page 2 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. expressly [*2] concerned with separation of powers in state government, State ex rel. Wallace v. Bone. 2 A month later, the Justices issued Advisory Opinion in re Separation of Powers, 3 which reaffirmed Wallace.

This Article examines the legal arguments relied on in Wallace and the advisory opinion. Finding those arguments unpersuasive or incomplete, it reviews other considerations not mentioned by the court and observes that important questions concerning the appointments power remain unanswered. It suggests that the judicial pronouncements on separation of powers may be better explained in terms of public policy rather than legal arguments, but it questions whether public policy is well served by the results.

I. STATE EX REL. WALLACE v. BONE

Wallace was serving as a member of the State Environmental Management Commission (EMC) 4 by apointment of the Governor. 5 In 1980 the General Assembly increased the membership of the EMC from thirteen to seventeen and provided that, of the four additional members, two shall be members of the House of Representatives appointed by the Speaker of the House and two shall be members of the Senate appointed by the President of the Senate. 6 Wallace and another member of the EMC who also had been appointed by the Governor instituted an action in the nature of quo warranto 7 against Representative Bone and another who were appointed to the EMC by the Speaker. At the same time, two other members of the EMC appointed by the Governor brought an action for declaratory judgment against all four legislators appointed to the EMC. The issue presented by the actions, which were consolidated for trial and disposition, was whether the membership of defendants in the EMC at the same time they were serving in the legislature violated the separation of powers clause of the state constitution. The trial judge held [*3] that it did not, placing emphasis on the "clear minority position of the legislators on the Commission." 8 Reversing the judgment below, the North Carolina Supreme Court 9 unanimously held that the General Assembly lacks the constitutional authority to mandate the appointment of legislators to bodies in the executive branch. 10

2 304 N.C. 591, 286 S.E.2d 79 (1982).

3 305 N.C. 767, 295 S.E.2d 589 (1982).

4 The EMC was created in 1974. Reorganization of State Government Act, ch. 1262, § 19, 1973 N.C. Sess. Laws (2d Sess.) 380 (codified at N.C. GEN. STAT. § 143B-282 (1983)).

5 As originally constituted, the EMC had thirteen members appointed by the Governor from groups with certain vocational qualifications. Reorganization of State Government Act, ch. 1262, § 20, 1973 N.C. Sess. Laws (2d Sess.) 381 (codified at N.C. GEN. STAT. § 143B-283(a) (1978)).

6 Act Relating to the Authority of the Environmental Management Commission, ch. 1158, § 6, 1979 N.C. Sess. Laws (2d Sess.) 92 (codified at N.C. GEN. STAT. § 143B-283(d) (1983)) (amended 1983 to provide that "the General Assembly shall appoint four members, two upon the recommendation of the Speaker of the House of Representatives, and two upon the recommendation of the President of the Senate").

7 The royal writ quo warranto (by what warrant) was used in the Middle Ages to test claimed rights, especially to jurisdiction. D. SUTHERLAND, QUO WARRANTO PROCEEDINGS IN THE REIGN OF EDWARD I, 1278-1294 (1963). In the sixteenth century the writ was replaced by an information filed by the attorney general. 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 229-30 (7th ed. 1956). The writ of quo warranto and proceedings by information in the nature of quo warranto are abolished in North Carolina. N.C. GEN. STAT. § 1-514 (1969). Nonetheless, the action of quo warranto is still spoken of, although in fact what is involved is a civil action to try title to an office. Before a private person may bring such an action, he must secure leave from the Attorney General by providing satisfactory security to indemnify the state against all expenses accruing in consequence of the action. N.C. GEN. STAT. § 1-516 (1969).

8 State ex rel. Wallace v. Bone, Nos. 81CVS1191 & 81CVS1192, unpublished op. at 6 (Wake Co. Super. Ct. March 18, 1981).

9 Exercising the discretion authorized by N.C. GEN. STAT. § 7A-31 (1981), the supreme court had certified the case for review without a determination by the court of appeals. Wallace, 304 N.C. at 595, 286 S.E.2d at 81.

10 Wallace, 304 N.C. at 608, 286 S.E.2d at 88 (1982). The court did not consider the impact of its holding on the continued existence of the EMC. Presumably the Commission is permitted to function as originally constituted. See supra note 5. 216/384 Page 3 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

In reaching its decision, the court announced that it had considered "[1] the history of the principle of separation of powers in our state and nation, [2] the decisions of other jurisdictions in our nation respecting the principle, and [3] the specific provisions of our constitution and the statutes involved." 11

A. History of Separation of Powers

In its historical review, the court examined the language of the North Carolina and Federal Constitutions in light of some contemporary expressions of opinion. With regard to the state constitutional provision concerning separation of powers, the court also considered judicial opinions referring to the provision. A careful examination reveals, however, that the court's historical argument is seriously flawed.

1. Constitutional Provisions

The principle of separation of powers has been explicitly proclaimed in each successive North Carolina Constitution with only slight variations in wording. 12 The first state constitution, adopted in 1776, declared "[t]hat the [*4] legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other." 13 In its opinion in Wallace, the court traced this declaration to instructions from the counties to their delegates to the North Carolina Provincial Congress that drafted the constitution. 14 It also observed that the present constitution, adopted in 1970, not only retains a

Nor did the court consider whether the official actions of the EMC taken during the service of the legislative members were valid. The court had earlier held that in the absence of a legally existing office there can be no de facto officer. Idol v. Street, 233 N.C. 730, 65 S.E.2d 313 (1951). Other courts, in similar cases, have held that officers appointed pursuant to statutes later declared invalid were nonetheless de facto officers during their time of service. See, e.g., Book v. State Office Bldg. Comm'n, 238 Ind. 120, 169, 149 N.E.2d 273, 298 (1958); State ex rel. Schneider v. Bennett, 219 Kan. 285, 301, 547 P.2d 786, 800 (1976). In response to the holding in Wallace major changes were made in the operation of state government. Separation of Powers Act of 1982, ch. 1191, 1981 N.C. Sess. Laws (Reg Sess.) 1982 (codified in scattered sections of N.C. GEN. STAT.). Further legislation may be anticipated, restoring nondelegable legislative powers to the General Assembly and conditioning the exercise of certain executive powers on non-binding consultation with a legislative committee, the Advisory Budget Commission. LEGISLATIVE RESEARCH COMM'N, SEPARATION OF POWERS: REPORT TO THE 1983 GENERAL ASSEMBLY OF NORTH CAROLINA 3-4 (1983).

11 Wallace, 304 N.C. at 595, 286 S.E.2d at 81 (numbers added).

12 N.C. CONST. of 1776, Declaration of Rights, § 4: "That the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other." N.C. CONST. of 1868, art. I, § 8: "The legislative, executive and supreme judicial powers of the government ought to be forever separate and distinct from each other." N.C. CONST. of 1970, art. I, § 6: "The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other."

13 N.C. CONST. of 1776, Declaration of Rights, § 4. 14 Instructions to the Mecklenburg County delegation included the following: 4. That you shall endeavor that the form of Government shall set forth a bill of rights containing the rights of the people and of individuals which shall never be infringed in any future time by the law-making power or other derived powers in the State. 5. That you shall endeavor that the following maxims be substantially acknowledged in the Bills of Rights (viz): 1st. Political power is of two kinds, one principal and superior, the other derived and inferior. 2nd. The principal supreme power is possessed by the people at large, the derived and inferior power by servants which they employ. 6. That you shall endeavor that the Government shall be so formed that the derived inferior power shall be divided into three branches distinct from each other, viz: The power of making laws The power of executing laws and The power of Judging. 217/384 Page 4 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. separation of powers clause but also expressly allocates the "legislative power," the "executive power," and the "judicial power" to the respective branches of state government. 15

The United States Constitution of 1787, although it contains no explicit provision regarding separatin of powers comparable to the North Carolina declaration, clearly incorporates the principle. The three powers of government are allocated to independent branches. 16 To explain the Founding Fathers' fondness for separation of powers the court quoted from The Federalist:

[*5] In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. 17

The court also repeated a passage from George Washington's farewell address of 1796, warning against encroachment by one branch on the powers of another. 18

All the citations of historical authority in Wallace support these propositions: (1) the drafters of the federal and state constitutions intended to separate the powers of government and, (2) they expected the separated powers to check and balance one another. Both points may be conceded. The important question remaining, however, is this: What limit does the principle of separation of powers, in and of itself, impose on the power of the legislature?

9. The law making power shall be restrained in all future time from making any alteration in the form of Government. Instructions to the Orange County delegation included the following: Fourthly. We require that in framing the civil constitution the derived inferior power shall be divided into three branches, to wit: The power of making laws, the power of executing and the power of judging. Fifthly. That the power of making laws shall have authority to provide remedies for any evils which may arise in the community, subject to the limitations and restraints provided by the principal supreme power. Seventhly. That the executive power shall have authority to apply the remedies provided by the law makers in that manner only which the laws shall direct, and shall be entirely distinct from the power of making laws. Eighthly: That the judging power shall be entirely distinct from and independent of the law making and executive powers.

Ninthly: That no person shall be capable of acting in the exercise of any more than one of these branches at the same time lest they should fail of being the proper checks on each other and by their united influence become dangerous to any individual who might oppose the ambitious designs of the persons who might be employed in such power. Wallace, 304 N.C. at 596-98, 286 S.E.2d at 82-83 (quoting 10 COLONIAL RECORDS OF NORTH CAROLINA 870a, 870b, 870g, 870h (W. Saunders, ed. 1890)) (emphasis added by the Court).

For an investigation of the deeper roots of separation of powers see Sharpe, The Classical American Doctrine of the Separation of Powers, 2 U. CHI. L. REV. 385 (1935). 15 N.C. CONST. art. II, § 1; art. III, § 1; art. IV, § 1.

16 U.S. CONST. art. I, § 1; art. II, § 1; art. III, § 1.

17 304 N.C. at 598, 286 S.E.2d 83 (quoting THE FEDERALIST NO. 51, at 350-51 (J. Madison) (J. Cooke ed. 1961) (emphasis added by the court). The court attributed this Number of THE FEDERALIST to Alexander Hamilton, "one of the drafters of the federal constitution and keeper of copious notes." Id. There is persuasive evidence that Number 51, was actually written by James Madison. THE FEDERALIST xxvi-xxix (J. Cooke ed. 1961); Brant, Settling the Authorship of The Federalist, 67 AM. HIST. REV. 71, 71 (1961).

18 It is important, likewise, that the habit of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

Wallace, 304 N.C. at 599, 286 S.E.2d at 83 (quoting Book v. State Office Bldg. Comm'n, 238 Ind. 120, 162, 149 N.E.2d 273, 294 (1958)). 218/384 Page 5 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

The same author whose passage from The Federalist the court quoted in support of separation of powers had occasion in an earlier Number to comment on the actual assignment of powers in North Carolina:

If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom [separation of powers] has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct . . . The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department. 19

The same constitution, in other words, that mandated separation of powers [*6] also provided for the election by the General Assembly of the Governor, 20 the members of the Council of State, 21 the Attorney General, 22 the State Treasurer, 23 the State Secretary, 24 and all the judges. 25 This arrangement seems to have conformed to the wishes of the people of North Carolina. 26 With only one modification, 27 it endured for almost a century, until the upheaval of the Civil War led to the drafting of the constitution of 1868.

Thus the court's argument based on the history of the separation of powers clause is unpersuasive. While it is clear that North Carolina's Founding Fathers were committed to the principle of separation of powers, it is equally clear from a reading of the entire text of the constitution of 1776 that they failed to discern any violation of that principle in the predominance of the legislature over the other branches of government. 28

19 THE FEDERALIST NO. 47, at 327-30 (J. Madison) (J. Cooke ed. 1961). This Number, too, may be attributed to Madison. Id. at xxi. 20 N.C. CONST. of 1776, § 15.

21 Id. § 16. The Council of State, composed of seven members, advised the Governor in the execution of his office. Its consent was required before the Governor could take certain important actions.

22 Id. § 13.

23 Id. § 22.

24 Id. § 24.

25 Id. § 13. 26 Among the instructions to the Mecklenburg County delegation to the Provincial Congress are to be found the following: 16. You shall endeavour that all Treasurers and Secretaries for this State shall be appointed by the General Assembly. 17. You shall endeavour that all Judges of the Court of Equity, Judges of the Court of Appeals and Writs of Error and all Judges of the Superior Courts shall be appointed by the General Assembly and hold their office during one year. 10 COLONIAL RECORDS OF NORTH CAROLINA 870d (W. Saunders ed. 1890). This legislative predominance reflected an aversion to the executive supremacy of colonial days. H. LEFLER & A. NEWSOME, NORTH CAROLINA: THE HISTORY OF A SOUTHERN STATE 210 (3d ed. 1973).

27 The extensive amendments to the constitution made in 1835 first provided for the direct election of the Governor by the voters. N.C. Const. of 1776, amend. art. II, § 1 (1835).

28 Students of American constitutional history have observed a similar understanding of fundamental principles on the part of other drafters of early constitutions: The bitter rivalry between governors and assemblies in colonial times had instilled in the people a deep distrust of the executive, and the [first state] constitutions reflected this . . . . Under most of the state constitutions the governor was elected by the assembly and was intended to be its creature . . . . Even the appointive power, by long tradition an executive prerogative, was often drastically impaired by provisions for appointments by the legislature or council . . . . The ascendancy of legislature over executive was in curious contrast to another provision, concerning the separation of powers. Some of the constitutions specified the distinct existence of the three principal departments of government. 219/384 Page 6 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

[*7] 2. North Carolina Decisional Law

The state supreme court found Wallace to be a case of first impression. The court took the "absence of cases which have come to this court contending that a branch of our state government violated the separation of powers principle" to be an indication that "North Carolina, for more than 200 years, has strictly adhered to the principle of separation of powers." 29 The court cited only two cases, Bayard v. Singleton 30 and State v. Bell, 31 "in which members of the judiciary have expressed themselves on the principle." 32

Bayard v. Singleton is one of the most famous cases ever decided in North Carolina. Sitting at New Bern in 1787, the superior court held a statute void because contrary to the state constitution. 33 Decided at a time when the relation between constitution and statute was still unclear, Bayard has been hailed as the first reported case supporting what became another one of the fundamental principles of American constitutionalism, judicial review. 34

Since the principle of judicial review was not at issue in Wallace, the court referred not to the holding in Bayard but to some expressions by Judge Samuel Ashe that were clearly obiter dictum: 35

[A]t the time of our separation from Great Britain, we were thrown into a similar situation with a set of people shipwrecked and cast on a maroon's island -- without laws, without magistrates, without government, or any legal authority -- that being thus circumstanced, the people of this country, with a general union of sentiment, by their delegates, met in Congress, and formed that system or those fundamental principles comprised in the constitution, dividing the powers of government into separate and distinct branches, to wit: the legislative, the judicial and executive, and assigning to each, several and distinct powers, and prescribing their several limits and boundaries . . . . 36

This may be accepted as an unexceptionable statement of historical fact.

A. KELLY & W. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGIN AND DEVELOPMENT 91-92 (5th ed. 1976). [T]he framers of the [first state] constitutions accepted the doctrine of separation of powers, . . . . But, while they accepted the theory of separation of powers, they did not in practice establish such separation. The legislative bodies were not only made the dominant branch of government, but in many cases exercised administrative or executive functions. The legislatures appointed most of the officials in Virginia and the two Carolinas . . . . F. GREEN, CONSTITUTIONAL DEVELOPMENT OF THE SOUTH ATLANTIC STATES, 1776-1860, at 83 (1930).

29 Wallace, 304 N.C. at 599, 286 S.E.2d at 83-84.

30 1 N.C. (1 Mart.) 5 (1787).

31 184 N.C. 701, 115 S.E. 190 (1922).

32 Wallace, 304 N.C. at 599, 286 S.E.2d at 84.

33 Bayard, 1 N.C. (1 Mart.) at 7.

34 B. COXE, AN ESSAY ON JUDICIAL POWER AND UNCONSTITUTIONAL LEGISLATION 68 (1893); Biggs, The Power of the Judiciary Over Legislation, in 17 PROCEEDINGS OF NORTH CAROLINA BAR ASSOCIATION 5, 10 (1915); 1 R. CONNOR, NORTH CAROLINA: REBUILDING AN ANCIENT COMMONWEALTH, 1584-1925, at 396 (1929); W. POWELL, NORTH CAROLINA, A BICENTENNIAL HISTORY 85 (1977). See also A. KELLY & W. HARBISON, supra note 28, at 94.

35 With the liberty of the early reporters, Martin appended to Judge Ashe's comment the observation: "this he said without disclosing a single sentiment upon the cause of the proceeding, or the law introduced in support of it." 1 N.C. (1 Mart.) at 6. The court in Wallace recognized that Ashe had "deviated from the case under consideration." 304 N.C. at 599, 286 S.E.2d at 84.

36 Bayard, 1 N.C. (1 Mart.) at 6. 220/384 Page 7 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

The court was wrong, however, when it described this dictum as "[o]bviously referring to our national government." 37 The reference was to [*8] state government instead. The words were uttered at the May term 1786. 38 Although Bayard was not decided until the November term 1787, it was opened more than a year earlier. When Judge Ashe used the quoted language, the constitutional convention that was to draft the federal constitution had not even been called, let alone convened. 39 Once the chronology is established, the references become clear. The "country" that separated from Great Britain is North Carolina, not the United States. The "Congress" that established the government is the North Carolina Provincial Congress. 40 The "constitution, dividing the powers of government into separate and distinct branches" is the North Carolina Constitution of 1776. 41 As an observation on the state's first constitution, the dictum shows that a contemporary judge believed it embodied the principle of separation of powers despite the predominance of the legislature.

The second judicial expression on separation of powers quoted by the court in Wallace is from Judge W. P. Stacy's dissent in State v. Bell. 42 Judge Stacy was not dissenting from a holding expressly involving separation of powers; Bell was instead a case concerning the proper interpretation of a criminal statute. The majority had given what Judge Stacy viewed as a liberal interpretation, and he dissented principally on the ground that criminal statutes were to be construed strictly. Bolstering his argument about statutory construction, Judge Stacy stigmatized liberal interpretation as judicial legislation in violation of the principle of separation of powers. 43 In so doing, he joined the long line of judges who, usually in dissenting opinions, charge

37 Wallace, 304 N.C. at 599, 286 S.E.2d at 84.

38 Bayard, 1 N.C. (1 Mart.) at 5-6.

39 In September, 1786, the Annapolis Convention issued the call for the Constitutional Convention to meet in May, 1787. A. KELLY & W. HARBISON, supra note 28, at 106.

40 The Provincial Congress not only drafted the constitution of 1776, it also adopted it without submitting it to the people. The court in Wallace had earlier recognized this fact. 304 N.C. 596 n.2, 286 S.E.2d 82 n.2 (citing H. LEFLER & A. NEWSOME, supra note 26, at 221). It explains Ashe's otherwise curious reference: "the people . . . by their delegates, met in Congress, and formed that system . . . comprised in the constitution . . . ." 1 N.C. (1 Mart.) at 6. The federal constitution, drafted by the Constitutional Convention, was adopted by conventions of the several states. U.S. CONST. art. VII. 41 N.C. CONST. of 1776, Declaration of Rights, § 4.

42 184 N.C. 701, 719, 115 S.E. 190, 199 (1922) (Stacy, J., dissenting).

43 We must hew to the line and let the chips fall wherever they may. And though we may think the law ought to be otherwise, this should not blind our judgment to what it really is. The duty of legislation rests with another department of the Government. It is ours only to declare the law, not to make it. Moore v. Jones, 76 N.C. 189. The people of North Carolina have ordained in their Constitution (Art. I, § 8) that the legislative, executive, and supreme judicial powers of the Government should be and ought to remain forever separate and distinct from each other. Such is their expressed will, and from the earliest period in our history they have endeavored with sedulous care to guard this great principle of the separation of the powers. In this country those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate who executes them is not allowed to judge them. To another tribunal is given the authority to pass upon their validity and constitutionality, "to the end that it be a government of laws and not of men." From this unique political division results our elaborate system of checks and balances -- a complication and refinement which repudiates all hereditary tendencies and makes the law supreme. In short, it is one of the distinct American contributions to the science of government . . . .

Wallace, 304 N.C. at 600-01, 286 S.E.2d at 84 (quoting State v. Bell, 184 N.C. at 719, 115 S.E. at 199). In the passage quoted, the last five sentences are repeated almost verbatim from Judge Stacy's majority opinion in Long v. Watts, 183 N.C. 99, 103-04, 110 S.E. 765, 767 (1922). Compare the above with MASS. CONST. of 1780, part 1, art. 30: In the government of this Commonwealth,the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. 221/384 Page 8 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

[*9] judges who have reached a different conclusion with exceeding the limits of judicial power. 44 This forensic commonplace does nothing to better the understanding of separation of powers.

Notwithstanding the asserted absence of cases involving a separation of powers claim, the North Carolina Reports contain numerous such cases, some of them quite recent. 45 In particular, the delegation of legislative authority to administrative agencies has provoked several recent cases raising the constitutional issue. In 1978 the court observed:

Article I, section 6 of the North Carolina Constitution provides that the legislative, executive and judicial branches of government "ought to be forever separate and distinct from each other." Legislative power is vested in the General Assembly by Article II, section 1 of the Constitution. It is obvious that if interpreted literally the Constitution would absolutely preclude any delegation of legislative power. However, it has long been recognized by this Court that the problems which a modern legislature must confront are of such complexity that strict adherence to ideal notions of the non-delegation doctrine would unduly hamper the General Assembly in the exercise of its constitutionally vested powers. 46

Although the General Assembly may not delegate its supreme legislative power to an agency, it may constitutionally delegate a limited portion of its power over some specific subject matter if it prescribes adequate quiding [*10] standards. 47

Thus, the argument in favor of the result in Wallace based on North Carolina decisions is incomplete. In addition to the dictum and dissenting opinion cited by the court, there are cases on the delegation of legislative power that are relevant. They indicate that the principle of separation of powers has not been strictly adhered to; instead, reasonable exceptions have been made in consideration of the complex problems dealt with by modern government. At issue in Wallace was whether another exception should be carved out in favor of legislative members of administrative agencies.

B. Decisional Law of Other States and of the United States 48

The second factor considered by the court in reaching its decision in Wallace was foreign decisional law. Such law should be relevant only insofar as the litigated facts are similar and the judicial reasoning is persuasive. The North Carolina trial judge

44 For a striking statement of the same theme by a distinguished contemporary of Judge Stacy, see Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534 (1924) (Brandeis, J. dissenting) ("an exercise of the powers of a super-legislature -- not the performance of the constitutional function of judicial review").

45 See, e.g., In re The Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980) (statute delegating legislative power to Department of Natural Resources and Community Development not violative of separation of powers because adequate guiding standards provided); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978) (statute delegating legislative power to Coastal Resources Commission not violative of separation of powers because adequate guiding standards provided); Jernigan v. North Carolina, 279 N.C. 556, 184 S.E.2d 259 (1971) (statute granting judicial power to Board of Paroles not violative of separation of powers); State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970) (statute delegating legislative power to Authority not violative of separation of powers because sufficient legislative standards implicit); North Carolina Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965) (statute delegating legislative power to Authority not violative of separation of powers because sufficient guiding standards provided); Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940) (exercise of quasi-judicial and administrative functions by Housing Authority created under state law not violative of separation of powers).

46 Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. at 696-97, 249 S.E.2d at 410. N.C. CONST. of 1970, art. I, § 6 provides that the powers "shall be" forever separate and distinct from each other. The court in Adams is actually quoting the superseded N.C. CONST. of 1868, art. I, § 8. For the separation of powers clause in each successive North Carolina Constitution, see supra note 12.

47 In re The Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978); State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); North Carolina Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965); Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940).

48 As shown in a recent article, problems concerning separation of powers arise in countries other than the United States. Neuborne, Judicial Review and Separation of Powers in France and the United States, 57 N.Y.U. L. REV. 363 (1982). 222/384 Page 9 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. who found no violation of separation of powers was influenced by the reasoning in cases from South Carolina 49 and Kansas 50 as well as in one federal case. 51 The North Carolina Supreme Court rejected the state cases, finding that "South Carolina and Kansas have deviated from the separation of powers principle." 52 Instead, it preferred decisions from Indiana, 53 West Virginia, 54 Georgia, 55 and Colorado. 56 In addition, the supreme court cited four other decisions 57 and two advisory opinions; 58 It adverted briefly to one federal case. 59

1. Decisional Law of Other States

Neither the trial judge nor the supreme court quoted the constitutional [*11] provisions construed in the decisions from other states. Failure to compare the foreign constitutions with North Carolina's lessens the persuasiveness of these citations. In the following discussion, the separation of powers clause involved in each case will be set out first.

(a) South Carolina

In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other. 60

State ex rel. McLeod v. Edwards 61 was an original action in the South Carolina Supreme Court in which the Attorney General attacked the constitutionality of legislation creating the State Budget and Control Board. The Board was composed of the Governor, the State Treasurer, the Comptroller General, the Chairman of the Senate Finance Committee, and the Chairman of the House Ways and Means Committee. The Board was "an executive body dealing primarily with the fiscal affairs of the State government." 62 The legislation was challenged as violating the separation of powers clause set out above. 63 The court

49 State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977). See also Guidry v. Roberts, 335 So.2d 438 (La. 1976), which is to the same effect as McLeod, but not cited in Wallace.

50 State ex rel. Schneider v. Bennet, 219 Kan. 285, 547 P.2d 786 (1976). Although not cited by the North Carolina courts, an Advisory Opinion by the Supreme Court of Delaware relied extensively on Schneider. Opinion of the Justices, 380 A.2d 109 (Del. 1977).

51 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

52 Wallace, 304 N.C. at 604, 286 S.E.2d at 85.

53 Book v. State Office Bldg. Comm'n, 238 Ind. 120, 149 N.E. 2d 273 (1958).

54 State ex rel. State Bldg. Comm'n v. Bailey, 151 W. Va. 79, 150 S.E.2d 449 (1966).

55 Greer v. Georgia, 233 Ga. 667, 212 S.E.2d 836 (1975).

56 Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912).

57 Bradner v. Hammond, 553 P.2d 1 (Alaska 1976); Ahearn v. Bailey, 104 Ariz. 250, 451 P.2d 30 (1969); Township of Dearborn v. Dail, 334 Mich. 673, 55 N.W.2d 201 (1952); State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973).

58 In re Advisory Opinion to the Governor, 276 So. 2d 25 (Fla. 1973); In re Opinion of the Justices to the Governor, 369 Mass. 990, 341 N.E.2d 254 (1976).

59 O'Donoghue v. United States, 289 U.S. 516 (1933). 60 S.C. CONST. art. I, § 8.

61 269 S.C. 75, 236 S.E.2d 406 (1977).

62 Id. at 78, 236 S.E.2d at 406-07. 223/384 Page 10 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. noted that the constitutionality of the Board had been sustained in previous cases 64 against attacks alleging violation of the dual office holding provision 65 and the separation of powers clause; 66 it further noted that subsequent to those decisions the article of the state constitution containing the separation of powers clause had been rewritten but the language on that point had been retained unchanged. The court held that ratification of the rewritten article implied adoption of the prior judicial construction. 67 Explaining [*12] the prior interpretation, the court emphasized the facts that the legislators were in a minority on the Board and that their presence represented "a cooperative effort by making available to the executive department the special knowledge and expertise of the chairman [sic] of the two finance committees in the fiscal affairs of the State and the legislative process in general." 68

(b) Kansas

[No distinct separation of powers clause]

State ex rel. Schneider v. Bennett 69 was an action of quo warranto brought by the Attorney General to prevent legislators serving on the State Finance Council from exercising various powers conferred by statute. The Council was composed of the Governor, the President pro tempore of the Senate, the Speaker of the House of Representatives, the Chairman of the Senate Ways and Means Committee, the Chairman of the House Ways and Means Committee, the Majority Floor Leader of the Senate, the Minority Floor Leader of the Senate, the Majority Floor Leader of the House, and the Minority Floor Leader of the House. The Council was vested with a wide array of powers, 70 including supervision of the operations of the Department of

63 There was also a contention that the Board was an unconstitutional invasion of the executive power confided to the Governor by S.C. CONST. art. IV, § 1. The court rejected this argument, finding that the composition of the Board did not limit the Governor's powers. McLeod, 269 S.C. at 84, 236 S.E.2d at 409.

64 Mims v. McNair, 252 S.C. 64, 165 S.E.2d 355 (1969); Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967).

65 S.C. CONST. of 1895, art. II, § 2:

Every qualified elector shall be eligible to any office to be voted for, unless disqualified by age, as prescribed in this Constitution. But no person shall hold two offices of honor or profit at the same time: Provided, that any person holding another office may at the same time be an officer in the militia or a Notary Public.

The dual office holding provision now appears in S.C. CONST. art. II, § 5. See Harper v. Schooler, 258 S.C. 486, 189 S.E.2d 284 (1972).

66 S.C. CONST. of 1895, art. I, § 14 (now S.C. Const. art. I, § 8).

67 It is uncertain whether the holding in McLeod extends to administrative agencies other than the State Budget and Control Board. See Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947) (invalidating an act that established a board to supervise the erection and maintenance of an auditorium because the board included a state senator and representative).

Subsequent to the decision in McLeod the South Carolina Supreme Court held that delegation of legislative power to a portion of the legislature violates separation of powers. Aiken County Bd. of Educ. v. Knotts, 274 S.C. 144, 262 S.E.2d 14 (1980).

68 McLeod, 269 S.C. at 83, 236 S.E.2d at 409.

69 219 Kan. 285, 547 P.2d 786 (1976).

70 The court listed some of these powers as follows: (1) The power to fix or approve the compensation paid to state officers and employees; (2) Certain powers under the civil service act, such as the adoption of rules and regulations for carrying out the act, approval of assignment of positions in the civil service to classes, and the assignment of classes to salary ranges, approval of the pay plan containing a schedule of salary and wage ranges and steps, approval of terms upon which state agencies may furnish housing, food service and other employee maintenance to state officers and employees in the civil service, and the determination of the cost and value of such benefits; (3) The determination of appeals by state agencies from actions by the secretary of administration in the allotment of the general fund or special revenue funds when insufficient to cover appropriations from such funds; 224/384 Page 11 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

Administration, authority to make allocations from the State Emergency Fund and to borrow money for short terms on behalf of the state, and authority to transfer and expend state money. The legislation conferring these powers was challenged as violating separation of powers and as an unconstitutional delegation of legislative [*13] powers without adequate guidelines. Although the Kansas Constitution, like the United States Constitution, lacks an express provision mandating the separation of powers, the Kansas Supreme Court found the principle to be implicit in the state constitution. Nonetheless, the court was of the opinion that "individual members of the legislature may serve on administrative boards or commissions where such service falls in the realm of cooperation on the part of the legislature and there is no attempt to usurp functions of the executive department of the government." 71 After examining the particular duties involved, the court held the supervisory power over the Department of Administration was a violation of separation of powers, but it found no such violation with regard to the power to draw on the Emergency Fund and to borrow, since the latter actions could be taken only by unanimous vote of the Council, of which the Governor was a member. The powers to transfer and expend money were held to be unconstitutional as a delegation of legislative powers without adequate guidelines. 72

(c) Indiana

The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution provided. 73

Book v. State Office Building Commission 74 was a taxpayer's action to enjoin members of the Commission from proceeding further with the construction of a State Office Building. 75 The membership of the Commission included the Governor, the Lieutenant Governor, the members of the State Budget Committee, one member of the Senate appointed by the Lieutenant Governor, and one member of the House appointed by the Speaker. Since all the members of the State Budget Committee

(4) Determination of the amount, not less than 25 cents, to be credited by the secretary of corrections to inmates for employment; (5) Resolution of disputes between the director of architectural services and the head of a state agency over construction of buildings, major repairs, or improvements authorized by the legislature for the state agency; (6) Setting of limitations on payment of moving expenses of state employees; (7) Approval of rules and regulations governing operations of the department of administration and each of its divisions; (8) Determination of appeals by state agencies from decisions of the secretary of administration or director of computer services; (9) Approval of rules and regulations to carry out the uniform standard code for mobile homes and recreational vehicles; (10) Approval of the transfer by a state agency of a part of an appropriated item to any other item of its appropriation.

Id. at 297-98, 547 P.2d at 797.

71 Id. at 290, 547 P.2d at 792, quoted with disapproval in Wallace, 304 N.C. at 606, 286 S.E.2d at 87. For a subsequent Kansas decision finding no usurpation, see Parcell v. Kansas, 228 Kan. 794, 620 P.2d 834 (1980) (majority of members of Governmental Ethics Comm'n appointed by legislative leadership).

72 In a subsequent case, with the same caption as the principal case, various fiscal powers of the State Finance Council were held not to violate separation of powers. State ex rel. Schneider v. Bennett, 222 Kan. 11, 564 P.2d 1281 (1977).

73 IND. CONST. art. III, § 1.

74 238 Ind. 120, 149 N.E.2d 273 (1958). 75 The Court described the duties of the State Office Building Commission as follows: [T]o acquire a site within the City of Indianapolis, Indiana, and to construct and erect thereon with all necessary equipment, a State Office Building suitable and adequate to house the offices of the various departments and agencies of the State Government . . . . to issue and sell interest bearing State Office Building revenue debentures, and . . . to enter into appropriate agreements with the various State departments and agencies for the use and occupancy of such building.

Id. at 131, 149 N.E.2d at 279. 225/384 Page 12 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. except the Budget Director were also members of the General Assembly, legislators constituted a majority of the Commission. The legislation creating the Commission was challenged as violating various provisions of the Indiana Constitution, including the dual [*14] office holding provision 76 and the separation of powers clause set out above. The Indiana Supreme Court rejected the claim of unconstitutional dual office holding because the provision applies to "lucrative" offices and the Commissioners receive only reimbursement of expenses. But the court held that the presence of legislators on a commission with executive of administrative duties violated separation of powers.

(d) West Virginia

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature. 77

State ex rel. State Building Commission v. Bailey 78 was an original action in the Supreme Court of West Virginia for a writ of mandamus to require the Secretary of State to validate a bond certificate issued on the order of the State Building Commission. The Secretary of State had refused on the ground that the Commission included legislators in violation of the state constitution's separation of powers clause. The Commission was composed of the Governor, the Attorney General, the Treasurer, the Auditor, the Commissioner of Agriculture, the Secretary of State, the President of the Senate, the Speaker of the House, the Minority Leader of the Senate, and the Minority Leader of the House. The Commission was "to provide for the construction of buildings for specified purposes and to provide for the payment of the designated projects by the issuance and sale of the bonds authorized by the statute." 79 Relying heavily on Book, the court found the membership of legislators to be unconstitutional but upheld the constitutionality of the Commission stripped of the legislative members and issued the writ.

(e) Georgia

The legislative, judicial and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided. 80

[*15] Greer v. State 81 was an action challenging the constitutionality of the legislation creating the World Congress Center Authority. The governing body of the Authority consisted of twenty members, six of whom were also members of the General Assembly. The Authority was "to plan, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage" the Center. 82 Quoting from Bailey, the Georgia Supreme Court held that the membership of legislators on an executive Authority violated the separation of powers clause set out above.

(f) Colorado

76 IND. CONST. art. II, § 9:

Effect of holding lucrative offices. No person holding a lucrative office or appointment under the United States or under this State, shall be eligible to a seat in the General Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constitution expressly permitted: Provided, that offices in the militia to which there is attached no annual salary, and the office of Deputy Postmaster where the compensation does not exceed ninety dollars per annum, shall not be deemed lucrative: And provided, also, that counties containing less than one thousand polls, may confer the office of Clerk, Recorder, and Auditor, or any two of said offices, upon the same person.

77 W. VA. CONST. art. V, § 1.

78 151 W. Va. 79, 150 S.E.2d 449 (1966).

79 Id. at 83, 150 S.E.2d at 452. 80 GA. CONST. art. I, § 2, P3.

81 233 Ga. 667, 212 S.E.2d 836 (1975).

82 Id. at 667, 212 S.E.2d at 837. 226/384 Page 13 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted. 83

Stockman v. Leddy 84 was an action in mandamus to compel the State Auditor to pay for services rendered to a joint legislative committee. The Auditor questioned the constitutionality of the committee which was empowered to conduct an investigation and to take action to protect the State's property. The Colorado Supreme Court found the legislation an attempt to confer executive power on a small group of legislators and held it unconstitutional under the separation of powers clause.

2. Federal Decisional Law

Although the United States Constitution contains no distinct separation of powers clause, it has been recognized from the beginning as an embodiment of that principle. 85 Because constitutional litigation in the first century of the Republic rarely raised the abstract issue of separation of powers but concerned instead the interpretation of specific provisions, little decisional law accumulated on the point. Not until the advent of the administrative agency with quasi-legislative and quasi-judicial powers was the United States Supreme Court forced to confront the issue. The Interstate Commerce Commission (ICC), created in 1887, was the first permanent administrative agency, and the cases involving the ICC during the first three decades of its existence reveal a cautious acceptance of this departure from the principle of separation of [*16] powers. 86

Nonetheless, the Court has periodically reaffirmed the principle, as in 1933 in O'Donoghue v. United States, 87 an opinion quoted by the North Carolina Supreme Court in Wallace. 88 In 1976, however, in Nixon v. Administrator of General Services 89 the United States Supreme Court adopted with explicit reference to O'Donoghue a "more pragmatic, flexible approach" 90 and rejected an "archaic view of the separation of powers as requiring three airtight departments of government." 91 In

83 COLO. CONST. art. III.

84 55 Colo. 24, 129 P. 220 (1912).

85 THE FEDERALIST Nos. 47 & 48 (J. Madison). A decade ago Arthur Selwyn Miller challenged the conventional wisdom that the drafters of the federal constitution separated the powers of government to reduce temptations for erring mortals; instead, Miller argued, the Founding Fathers were seeking greater efficiency in government. Miller, An Inquiry into the Relevance of the Intentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of Separation of Powers, 27 ARK. L. REV. 583 (1973).

86 United States v. Atchison, T. & S.F.R.R., 234 U.S. 476 (1914) (statute granting rate-fixing power to ICC not unconstitutional delegation of legislative authority); Interstate Commerce Comm'n v. Chicago, R.I. & Pac. Ry., 218 U.S. 88 (1910) (rate-fixing order not beyond power of ICC); Interstate Commerce Comm'n v. Illinois Cent. R.R., 215 U.S. 452 (1910) (narrow scope of review of ICC orders); Illinois Cent. R.R. v. Interstate Commerce Comm'n, 206 U.S. 441 (1907) (no de novo investigation of facts on appeal from ICC order); Interstate Commerce Comm'n v. Alabama Midland Ry., 168 U.S. 144 (1897) (judicial review of facts upon which ICC orders were based not prohibited by statute); Interstate Commerce Comm'n v. Cincinnati, N.O. & Tex. Pac. Ry., 167 U.S. 479, 501 (1897) (power granted to ICC "partly judicial, partly executive and administrative, but not legislative"); Cincinnati, N.O. & Tex. Pac. Ry. v. Interstate Commerce Comm'n, 162 U.S. 184 (1896) (ICC not empowered to fix rates).

87 289 U.S. 516, 551 (1933) (statute reducing salaries and pensions of judges not applicable to judges of District of Columbia courts).

88 304 N.C. at 604, 286 S.E.2d at 86 (quoting O'Donahue, 289 U.S. at 530): "This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, Springer v. Philippine Islands, 277 U.S. 189, 201, namely, to preclude a commingling of these essentially different powers of government in the same hands."

89 433 U.S. 425, 441-46 (1976) (statute directing Administrator to take custody of presidential materials not violative of separation of powers).

90 Id. at 442. See also United States v. Nixon, 418 U.S. 683, 711-12 (1974).

91 Administrator of General Services, 433 U.S. at 443 (quoting Nixon v. Administrator of Gen. Serv., 408 F.Supp. 321, 342 (D.D.C. 1976)). 227/384 Page 14 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. formulating a test for the violation of the principle of separation of powers, the Court declared that the "proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions." 92 Even if there is potential for disruption, separation of powers is not necessarily violated because the Court must then determine "whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." 93

3. Conclusions

The review of foreign decisional law permits few firm conclusions. Federal authority is certainly more permissive than the North Carolina Supreme Court recognized. State decisions are divided, although a majority of state courts did find violations of separation of powers in somewhat similar circumstances. The persuasiveness of the state decisions is weakened, however, by the dissimilarity of the various constitutions. All the constitutional provisions expressly requiring separation of powers include a clause similar to that in the South Carolina Constitution: "and no person or persons exercising the functions [*17] of one of said departments shall assume or discharge the duties of any other." 94 At issue in Wallace was whether the North Carolina Constitution, which lacks such a clause, should be interpreted to include it by implication. To assume as much and then to cite as support decisions interpreting constitutions containing the clause was to commit the logical fallacy known as petitio principii, in which what is to be proved is implicitly taken for granted.

The persuasiveness of the state decisions finding violations of separation of powers is further weakened because the functions of many of the challenged bodies were exclusively exective. Three of the decisions 95 involved commissions to construct state buildings, a function not related to rule-making. In these cases the invasion of executive power was clear. The less executive the functions, however, the less clear would be the violation of separation of powers.

C. Statutory Duties of the EMC

In addition to history and precedent the court in Wallace considered the specific provisions of the statutes involved. "It is crystal clear to us," announced the Justices, "that the duties of the EMC are administrative or executive in character and have no relation to the function of the legislative branch of government, which is to make laws." 96 In support of this conclusion the court reviewed some of the duties imposed on the EMC by statute. Quoting the legislation creating the EMC, the court discerned the purpose it was meant to serve: "There is hereby created the Environmental Management Commission of the Department of Natural Resources and Community Development with the power and duty to promulgate rules and regulations to be followed in the protection, preservation, and enhancement of the water and air resources of the State." 97

92 Id.

93 Id. For an argument that this standard should be generalized, see Note, Fallen Angels, Separation of Powers, and the Saturday Night Massacre: An Examination of the Practical, Constitutional, and Political Tensions in the Special Prosecutor Provisions of the Ethics in Government Act, 49 BROOKLYN L. REV. 113 (1982).

94 S.C. CONST. art. 1, § 8.

95 Book v. State Office Bldg. Comm'n, 238 Ind. 120, 149 N.E.2d 273 (1958); State ex rel. State Bldg. Comm'n v. Bailey, 151 W. Va. 79, 150 S.E.2d 449 (1966); Greer v. State, 233 Ga. 667, 212 S.E.2d 836 (1975).

96 Wallace, 304 N.C. at 608, 286 S.E.2d at 88. The trial judge had come to a different conclusion. Among the "findings of fact" he listed: "3. The Environmental Management Commission is a quasi-independent State regulatory agency, a part of the executive branch whose functions include, but are not limited to, quasi-legislative and quasi-judicial powers and duties as generally enumerated in G.S. 143 B-282. See also G.S. 143-215.3 and .4." State ex rel. Wallace v. Bone, Nos. 81CVS1191 & 81CVS1192, unpublished op. at 2 (Wake Co. Super. Ct. March 18, 1981).

The parties had previously agreed to a pre-trial order containing the following undisputed fact: "1. The Environmental Management Commission is a quasi-independent regulatory agency of the State with quasi-legislative and quasi-judicial powers and duties as enumerated in G.S. 143 B-282." Wallace, 304 N.C. at 593, 286 S.E.2d at 80.

97 304 N.C. at 607, 286 S.E.2d at 88 (quoting N.C. GEN. STAT. § 143 B-282 (1978)) (emphasis added by author). 228/384 Page 15 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

There can be no question that the EMC is organizationally within the executive branch of state government. It is part of an executive department. Until 1979 the Governor appointed and the members of the EMC; even under the legislation declared invalid in Wallace, the Governor would have appointed [*18] a majority of the members. Furthermore, the EMC has duties that commonly belong to the executive branch in modern administration. Among other things, it is empowered pursuant to statutes: 98 to grant permits with regard to controlling sources of air and water pollution; 99 to issue special orders to any person whom it finds responsible for water or air pollution; 100 to conduct investigations or direct that investigations be conducted; 101 to conduct public hearings, institute actions in superior court, and agree upon settlements; 102 to review local air pollution control programs; 103 to declare an emergency when it finds a generalized dangerous condition of water or air pollution; 104 to grant permits for water use within capacity use areas; 105 to approve all applications for dam construction; 106 to supervise the maintenance of dams; 107 and to have jurisdiction over oil pollution. 108

As the court recognized, the EMC has other duties as well. It is empowered "to establish standards and adopt rules and regulations" 109 for air quality standards, emission control standards, and classifications for air contaminant sources; 110 for water quality standards and classifications; 111 for reporting on water and air quality; 112 for capacity use areas; 113 for the issuance of permits for water use within capacity use areas; 114 for protection from oil pollution. 115 The power to issue rules with the effect of law is today recognized as quasi-legislative, although the supreme court denied that characterization in Wallace.

98 N.C. GEN. STAT. § 143B-282(1) (1983). In the exercise of these powers the EMC is limited by N.C. GEN. STAT. § 143-215.9 (1983).

99 Id. §§ 143-215.1 & 143-215.108.

100 Id. §§ 143-215.2(b) & 143-215.110.

101 Id. §§ 143-215.3, 143-215.19, 143-215.108(b)(5).

102 Id. § 143-215.3.

103 Id. § 143-215.311 & 143-215.112.

104 Id. § 143-215.312.

105 Id. § 143-215.15.

106 Id. § 143-215.28.

107 Id. § 143-215.31.

108 Id. §§ 143-215.75 to 143-215.102. In its opinion the Court misreads the statute as providing the EMC jurisdiction over "all" pollution, rather than "oil" pollution. Wallace, 304 N.C. at 607, 286 S.E.2d at 88.

109 N.C. Gen. Stat. § 143B-282(2) (1983).

110 Id. § 143-215.107.

111 Id. §§ 143-214.1 & 143-215.

112 Id. § 143-215.68.

113 Id. § 143-214.14.

114 Id. § 143-215.20.

115 Id. §§ 143-215.75 to 143-215.102. 229/384 Page 16 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

Unmentioned in Wallace were the powers of the EMC to conduct hearings, receive evidence, and hand down decisions with the effect of court orders; powers usually recognized as quasi-judicial. The EMC is empowered to designate hearing officers 116 and conduct public hearings, 117 after notice, 118 at [*19] which oaths may be administered, 119 and of which a complete record must be kept by a reporter. 120 The hearings "follow generally the procedures applicable in civil actions in the superior court insofar as practicable, including rules and procedures with regard to the taking and use of depositions, the making and use of stipulations, and the entering onto of agreed settlements and consent orders." 121 Subpoenas and subpoenas duces tecum may be issued, and state officers are directed to follow the same procedures with regard to them "as if issued by a court of record." 122 Enforcement procedures include, in addition to criminal penalties 123 and injunctive relief 124 ordered by a court, civil penalties up to $ 10,000 assessed by the EMC itself. 125

It is difficult to escape the conclusion that the EMC is an administrative agency with quasi-legislative and quasi-judicial powers. As the North Carolina Supreme Court has recognized, administrative agencies are incompatible with strict adherence to separation of powers. 126 Nonetheless, they are constitutional as long as adequate guiding standards are provided. 127 It may be presumed that the EMC is constitutional even though its duties do have a relation to the function of the legislative branch because adequate statutory guidelines are present. By not recognizing the quasi-legislative and quasi-judicial character of the EMC, the Wallace court failed to address the more important issue of whether the General Assembly may appoint legislators to serve on these otherwise constitutional agencies.

II. ADVISORY OPINION IN RE SEPARATION OF POWERS

Within days of the decision in Wallace, the Governor, Lieutenant Governor, and Speaker of the House of Representatives requested an advisory opinion from the Justices of the Supreme Court 128 about the constitutionality in light of Wallace of two

116 Id. § 143-215.4(e).

117 Id. § 143-215.4(d)(2).

118 Id. § 143-215.4(d)(1).

119 Id. § 143-215.4(d)(2).

120 Id. § 143-215.4(d)(3).

121 Id. § 143-215.4(d)(4).

122 Id. § 143-215.4(d)(5).

123 Id. § 143-215.6(b).

124 Id. § 143-215.6(c).

125 Id. § 143-215.6(a).

126 Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 696-97, 249 S.E.2d 402, 410-11 (1978). See supra text accompanying note 46.

127 In re The Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978); State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); North Carolina Turnpike Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965); Cox v. City of Knston, 217 N.C. 391, 8 S.E.2d 252 (1940).

128 The Advisory Opinion has been defined as: [A]n opinion rendered by the highest judicial officers in the state, acting as individuals and not in a judicial capacity, in response to a request for information as to the state of the law or counsel as to the constitutionality of proposed action, coming from the legislative or executive branches of the government. 230/384 Page 17 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. statutes enacted in 1981. The first statute related to [*20] transfers within the state budget; 129 the second related to federal block grants. 130

The General Assembly is, of course, responsible for enacting the state budget. No revenue may be raised or state money expended except pursuant to an act of the legislature. 131 Since 1929, however, the Governor in his capacity as Director of the Budget 132 has been authorized to permit "[t]ransfers or changes as between objects and items" in the appropriations for the various spending agencies of the state. 133 In 1981 the General Assembly restricted that authorization by enacting the following statute:

[N]o requested transfer or change from a program line item may be made if the total amount transferred from that line item during the fiscal year would be more than ten percent (10%) of the amount appropriated for that program line item for that fiscal year, unless the Joint Legislative Commission on Governmental Operations has given its prior approval for that transfer. This restriction applies to all State departments with a total General Fund appropriation of at least fifty million dollars ($ 50,000,000). All other departments shall apply the ten percent (10%) limitation to the summary by object line items. No transfers or changes, regardless of amount, from salary funds may be made without the prior approval of the Joint Legislative Commission on Governmental Operations. The Commission must take action within 40 days of receiving a request for approval from the Office of State Budget and Management. Transfers or changes within the Medicaid program are exempt from this subsection. 134

The Joint Legislative Commission on Governmental Operations was established in 1975 to provide for "the continuing review of operations of State government." 135 It is composed of the President of the Senate, the Speaker of the House, and twelve other members of the General Assembly. 136 The first challenged statute, in other words, gave a commission of legislators power [*21] over budget transfers (of the specified magnitude) proposed to be made by the Governor.

For years the state has received, in addition to its tax revenues, money from various federal programs. 137 After the enactment of the fiscal 1981-83 state budget, the federal government changed the structure of federal programs and offered the several

Edsall, The Advisory Opinion in North Carolina, 27 N.C.L. REV. 297, 297 (1949) (quoting A. Ellingwood).

The judges of only a small minority of American states give advisory opinions; of those that do, most are acting pursuant to authorization in the state constitution or a state statute. Id. at 299 n.4. Perhaps alone, the justices of the North Carolina Supreme Court render advisory opinions without express constitutional or statutory authority. Id. at 329. The federal judiciary have never offered advisory opinions. Ironically for present purposes, the precedent was set in 1793 when the Justices of the U.S. Supreme Court declined to answer President George Washington's questions out of regard for separation of powers. P. BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM, CORRESPONDENCE OF THE JUSTICES 64-66 (2d ed. 1973).

129 Act of Oct. 10, 1981, ch. 1127, § 82, 1981 Sess. Laws (Reg. Sess.) 1654 (codified at N.C. GEN. STAT. § 143-23(b) (1983)).

130 Act of Oct. 10, 1981, ch. 1127, § 63, 1981 Sess. Laws (Reg. Sess.) 1651-52 (codified at N.C. Gen. Stat. §§ 120-84.1 to 120-84.5) (Supp. 1981)).

131 N.C. CONST. art. II, § 23; art. V, § 7(1).

132 N.C. GEN. STAT. § 143-2 (Cum. Supp. 1981). See also N.C. CONST art. III, § 5(3).

133 Act of March 7, 1929, ch. 100, § 24, 1929 Sess. Laws 84-85 (codified at N.C. GEN. STAT. § 143-23(a) (Cum. Supp. 1981)). 134 Act of Oct. 10, 1981, ch. 1127, § 82, 1981 Sess. Laws (Reg. Sess.) 1654 (codified at N.C. GEN. STAT. § 143-23(b) (Cum. Supp. 1981)).

135 An Act to Provide for Continuing Review of Governmental Operations by the General Assemply, ch. 490, 1975 Sess. Laws (1st Sess.) 498 (codified at N.C. GEN. STAT. §§ 120-71 to 120-79 (1981 & Supp. 1981)).

136 N.C. GEN. STAT. § 120-74 (Supp. 1981).

137 See Act of May 11, 1935, ch. 479, § 2 1935 Sess. Laws (Reg. Sess.) 848 (codified at N.C. GEN. STAT. § 143-164 (1978)). 231/384 Page 18 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. states funds in the form of block grants. 138 The North Carolina General Assembly responded by enacting a statute the declared that "all federal block grant funds . . . shall be received by the General Assembly." 139 Then, by the second challenged statute, the legislature created a Joint Legislative Committee to Review Federal Block Grant Funds composed of twelve legislators. That statute also provided the following:

(a) After federal block grant funds have been accepted by the General Assembly, the Director of the Budget shall propose administration and use of those funds. All proposals shall be submitted to the Committee, or to the General Assembly if it is in session, for its prior approval.

(b) None of the following actions with regard to State use of federal block grant funds may be taken without the prior approval of the Committee or of the General Assembly if it is in session:

(1) acceptance of federal block grants,

(2) determination of pro rata reduction procedures and amounts for State programs,

(3) determination of distribution formulas,

(4) transfer of funds between block grants,

(5) intradepartmental transfer of block grant funds,

(6) encumbrance of anticipated block grant funds,

(7) adoption of departmental rules relating to federal block grant funds,

(8) contracting between State departments involving block grant funds, and

(9) any other final action affecting acceptance or use of federal block grant funds.

The Committee shall take action within 40 days of receiving a request for approval from the Office of State Budget and Management. 140 The second challenged statute, in other words, gave a committee of legislatiors (during the recess of the General Assemby) power over actions proposed to be taken by the Governor with respect to the administration of federal block grant funds.

In the advisory opinion the Justices advised the Governor, Lieutenant [*22] Governor, and Speaker of the House that the two statutes are unconstitutional. 141 For the history and meaning of separation of powers in North Carolina they principally relied on Wallace. "For the sake of brevity," the Justices said, "we will not restate all that we said in that opinion." 142 Summarizing Wallace, the Justices declared:

[t]he principle of separation of powers was clearly in the minds of the framers of our Constitution; and . . . the people of North Carolina, by specifically including a separation of powers provision in the original Constitution adopted in 1776, and readopting the provision in 1868 and 1970, are firmly and explicitly committed to the principle. 143

138 Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, 1981 U.S. CONG. & AD. NEWS (95 Stat.) 357 (codified in scattered sections of U.S.C.).

139 Act of Oct. 10, 1981, ch. 1127, § 62, 1981 Sess. Laws (1st Sess.) 1651. 140 Act of Oct. 10, 1981, ch. 1127, § 63, 1981 Sess. Laws 1651-52 (codified at N.C. GEN STAT. §§ 120-84.5 (Supp. 1981)).

141 Advisory Opinion, 305 N.C. at 780-81, 295 S.E.2d at 596.

142 Id. at 773, 295 S.E.2d at 592.

143 Id. at 773-74, 295 S.E.2d at 592. 232/384 Page 19 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

They also quoted from Wallace that "the duties of the EMC are administrative or executive in character and have no relation to the function of the legislative branch of government which is to make laws." 144 In addition, they noted that another constitutional provision relative to the respective powers of the branches, not germane in Wallace, was implicated by the statutes at issue:

The Governor shall prepare and recommend to the General Assembly a comprehensive budget of the anticipated revenue and proposed expenditures of the State for the ensuing fiscal period. The budget as enacted by the General Assembly shall be administered by the Governor. 145

In the opinion of the Justices, the power over budget transfers vested in a commission of legislators by the first challenged statute "exceeds [the power] . . . given to the legislative branch by Article II of the Constitution." 146 They also thought the statute violated the principle of separation of powers by encroaching on the Governor's duty to administer the budget. The court thought the second challenged statute, involving federal block grants, violated the principle of separation of powers insofar as it delegated legislative power to, or conferred executive power on, a committee of legislators. 147

Although the advisory opinion relies principally on Wallace, the issues raised by the legislative-executive interaction in the budgetary process are unlike the issue in that case. Wallace involved the membership of legislators on an executive branch commission. Although the premise has been questioned in this Article, the court decided that case on the assumption that the EMC [*23] performed no legislative functions. The commissions in question in the advisory opinion, one the other hand, were authorized to exercise powers that are indubitably legislative. There can be no doubt that the General Assembly can deny the Governor authority to make budgetary transfers. The first issue for the Justices was whether that power could be delegated to a commission of legislators. Citing Wallace and the principle of separation of powers, they resolved that issue in the negative. Delegation of power does not, however, necessarily implicate the principle of separation of powers. When a legislature delegates its plenary power to a group of its members a constitutional issue is raised. Only if that delegation is made to a coordinate branch of government, however, is the issue one involving separation of powers. 148

The second issue in the advisory opinion did raise a genuine separation of powers problem. In the view of the Justices, the General Assembly had invaded the prerogative of the Governor. But that issue too could have been resolved without referring to the general principle of separation of powers. The North Carolina Constitution specifically charges the Governor with the duty of administering the "budget as enacted by the General Assembly." 149 In this area the general mandate of separation of powers in given concrete expression in another part of the constitution.

144 Id. at 775, 295 S.E.2d at 593 (quoting Wallace, 304 N.C. at 608, 289 S.E.2d at 88). 145 N.C. CONST. art. III, § 5(3).

146 Advisory Opinion, 305 N.C. at 776, 295 S.E.2d at 594.

147 Although their opinion was not requested on the matter, the Justices also questioned whether the General Assembly could provide for the receipt of block grant funds on the ground that there is "nothing in the Constitution that authorizes the legislative branch actually to receive funds." Id. at 779, 295 S.E.2d at 595 (emphasis in original). On the other hand, there is nothing in the Constitution about any branch receiving funds. The role, however, seems closer to the constitutional duties of the General Assembly than to those of other branches. If the power of the purse is to be retained by the legislature, the executive should not be endowed with any funds not approved by the legislature.

148 It has recently been argued that cases of improper delegation of legislative authority to groups of legislators do implicate the principle of separation of powers: Separation analysis is as proper as analysis based on violation of the specific enactment provisions of a constitution in cases of a legislature's granting of power exercisable only by the whole body to a smaller group of legislators. The primary "enactment clause" ground given for striking down such statutes is that they deprive the chief executive of the ability to exercise his veto authority. Since the veto is an executive prerogative, the legislature has violated the essential separation between the branches.

Powers, Separation of Powers: The Unconstitutionality of the Arkansas Legislative Council, 36 ARK. L. REV. 124, 126 n.13 (1982).

Assuming arguendo the correctness of this view, it is inapposite in North Carolina where the Governor lacks the veto.

149 N.C. CONST. art. III, § 5(3). 233/384 Page 20 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

III. CONSIDERATIONS NOT MENTIONED BY THE COURT

Based on its understanding of the history of the principle of separation of powers in North Carolina and encouraged by its perception of strict adherence to that principle by other states, the North Carolina Supreme Court in Wallace held unconstitutional the statute adding legislative members to the EMC. Ostensibly relying on Wallace, the Justices then advised the state's leaders that two fiscal statutes were unconstitutional. Each premise of the court's opinion in Wallace has been challenged. Before a conclusion may be drawn about the value of the decision, however, it is necessary to consider several factors not mentioned by the court.

A. Constitutional Considerations

Challenges in other states to the composition of bodies comparable to the EMC have included charges of violation of the dual office holding provisions [*24] of the respective constitutions. 150 And recent federal litigation has implicated the appointments clause in a similar situation. 151

1. Dual Office Holding

It may be contended that the proper issue in Wallace was not separation of powers per se, but the separation of personnel. The desire to prevent the concentration of power in the hands of one person or of a few persons is as old as the principle of separation of powers itself. 152 To prevent the accumulation of offices, each successive constitution of North Carolina has contained a provision against holding more than one office. 153 In pertinent part the provision [*25] of the 1970 constitution

150 Harper v. Schooler, 258 S.C. 486, 189 S.E.2d 284 (1972), cited in State ex rel. McLeod v. Edwards, 269 S.C. 75, 76, 236 S.E.2d 406, 407 (1977) (see supra text accompanying note 65); Book v. State Office Bldg. Comm'n, 238 Ind. 120, 149 N.E.2d 273 (1958) (see supra text accompanying note 76).

151 Buckley v. Valeo, 424 U.S. 1 (1976). 152 Instructions to the Orange County delegation to the 1776 N.C. Provincial Congress included the following: That no person shall be capable of acting in the exercise of any more than one of these branches [of government] at the same time lest they should fail of being the proper checks on each other and by their united influence become dangerous to any individual who might oppose the ambitious designs of the persons who might be employed in such power.

10 COLONIAL RECORDS OF NORTH CAROLINA 870h (W. Saunders ed. 1890), quoted in Wallace, 304 N.C. at 597-98, 286 S.E.2d at 83. See supra note 14.

The historian of the early constitutions of the Southeastern states observed that they "distinguished between a union or separation of powers organically and personally, for they not only created separate organs for the departments of government but also prohibited the personnel of any one of the departments from exercising the powers belonging to another." F. GREEN, supra note 28, at 83.

153 N.C. CONST. of 1776: XXVIII. That no member of the Council of State shall have a seat, either in the Senate, or House of Commons. XXIX. That no Judge of the Supreme Court of Law or Equity, or Judge of Admiralty, shall have a seat in the Senate, House of Commons, or Council of State. XXX. That no Secretary of this State, Attorney-General, or Clerk of any Court of record, shall have a seat in the Senate, House of Commons, or Council of State.

XXXV. That no person in the State shall hold more than one lucrative office, at any one time: -- Provided, That no appointment in the militia, or the office of a Justice of the Peace, shall be considered as a lucrative office. N.C. CONST. of 1776 art. IV, § 4 (amend. 1835):

No person who shall hold any office or place of trust or profit under the United States, or any department thereof, or under this State, or any other State or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a 234/384 Page 21 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. states: "No person shall hold concurrently . . . any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law." 154 Using the principle that the specific ought to be preferred over the general, it could be argued that the dual office holding provision encompasses separation of powers insofar as it refers to personnel. If that argument were accepted, then the appointing of legislators to the EMC would be constitutional and Wallace would be wrongly decided.

2. Appointments Clause

Also arguably relevant to the issue in Wallace is the executive's appointment power. The appointments clause of the federal constitution 155 was recently relied upon by the United States Supreme Court in Buckley v. Valeo 156 to invalidate a Federal Election Commission that included two members appointed by the Speaker of the House and two members appointed by the President pro tempore of the Senate. 157 By the current Constitution of North Carolina the Governor is likewise empowered to make appointments to the executive branch: "the 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." 158 In contrast to the interpretation of the federal constitution, however, the corresponding section of the North Carolina Constitution of 1868, as amended, 159 was interpreted to mean that the Governor's appointment power could validly be subjected to legislative provision. 160 There was

seat in either house of the general assembly: Provided, That nothing herein contained shall extend to officers in the militia or justices of the peace. N.C. CONST. of 1868, art. XIV, § 7:

No person shall hold more than one lucrative office under the State at the same time: Providid, That officers in the militia, justices of the peace, commissioners of public charities, and commissioners appointed for special purposes shall not be considered officers within the meaning of this section. N.C. CONST. of 1970, art. VI, § 9:

(1) Prohibitions. It is salutary that the responsibilities of self-government be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual be avoided. Therefore, no person who holds any office or place of trust or profit under the United States or any department thereof, or under any other state or government, shall be eligible to hold any office in this State that is filled by election by the people. No person shall hold concurrently any two offices in this State that are filled by election of the people. No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law.

(2) Exceptions. The provisions of this Section shall not prohibit any officer of the military forces of the State or of the United States not on active duty for an extensive period of time, any notary public, or any delegate to a Convention of the People from holding concurrently another office or place of trust or profit under this State or the United States or any department thereof.

154 N.C. CONST. art. VI, § 9.

155 U.S. CONST. art. II, § 2, cl. 2: He [the President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presidents alone, in the Courts of Law, or in the Heads of Departments.

156 424 U.S. 1, 126 (1976).

157 The Speaker and President pro tempore were to make their appointments upon the recommendations of the majority and minority leaders of the respective chambers. Neither could appoint two members of the same political party. Appointments had to be confirmed by both Houses of Congress. Id. at 113.

158 N.C. CONST. art. III, § 5 (8). 159 N.C. CONST. of 1868, art. III, § 10 (1875).

160 State ex rel. Salisbury v. Croom, 167 N.C. 223, 83 S.E. 354 (1914). 235/384 Page 22 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA. also authority under the 1868 constitution, as amended, [*26] that the General Assembly possessed the power to fill executive offices created by statute. 161 Until the North Carolina Supreme Court provides an authoritative interpretation of the present appointments clause, it must be assumed that it means what the previous clause was held to mean. If that assumption is correct, a statute providing for the appointment by the legislature of members of administrative agencies like the EMC would not be violative of the appointments clause. Wallace, it has been observed, only excludes legislators from service on such bodies. Legislative appointees, even if they are not legislators, may well believe their chief loyalty to be to the General Assembly rather than to the Governor.

If the appointments clause of the current North Carolina Constitution were given the same construction as the analogous clause of the federal constitution, however, the issue in Wallace would have shifted dramatically. Rather than centering on the permissibility of legislators' serving on administrative agencies, the issue would have been whether the General Assembly could appoint any members, whether legislators or not, to an executive branch body. By analogy to Buckley, the answer would have been in the negative. 162

B. Other Considerations

Judicial interpretation of the constitution may involve considerations of public policy. These considerations may be openly expressed or merely implied. There are hints in Wallace that the court was concerned about implications of the legislative actions that were before it for review. First, the court may have been concerned about the implications for the executive branch. In the course of reviewing the state's commitment to separation of powers, the court referred to the lack of an executive veto: "ours is one of the few states, if not the only state, in the Union that does not provide its governor with the power to veto enactments of the legislature." 163 The implication might be that a contrary result in Wallace would imperil the integrity of the office of the Governor. If the General Assembly could constitutionally provide for the appointment of legislators to administrative agencies, then something akin to parliamentary government 164 could result. The Joint Legislative Committee [*27] to Review Federal Block Grant Funds makes clear that this would not be a mere argumentum ad horrendum. 165

Second, the court may even have been concerned about the integrity of the judicial branch. For purposes of its argument about the architecture of separation of powers, it is understandable why the court would mention that the judicial power is vested in the third branch. It is less understandable why the court quoted the entire text of article IV, section 1:

161 State ex rel. Cherry v. Burns, 124 N.C. 761, 33 S.E. 136 (1899); Cunningham v. Sprinkle, 124 N.C. 638, 33 S.E. 138 (1899); State Prison v. Day, 124 N.C. 362, 32 S.E. 748 (1899); State ex rel Ewart v. Jones, 116 N.C. 570, 21 S.E. 787 (1895). See also State ex rel. Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265 (1941). Counsel for plaintiff in Wallace conceded that "[u]nder North Carolina constitutional law, the legislature may amend the statutes establishing the [EMC] to provide for the legislative branch to appoint any or all of the [EMC's] members . . . . It may not, however, appoint its own members to sit on the [EMC]." Plantiff Appellants' Brief at 22, State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982).

162 The Governor had himself appointed legislators to 45 positions on 32 bodies similar to the EMC. Orth, Separation of Powers: An Old Doctrine Triggers a New Crisis, 5 N.C. INSIGHT, No. 1, 36, 38 (May 1982). After the decision in Wallace, the Attorney General advised all legislators, "regardless of how or by whom appointed," to resign their appointments. Id. A decision based on the appointments clause rather than on the principle of separation of powers would have permitted the Governor to name legislators to executive branch bodies.

163 Wallace, 304 N.C. at 599, 286 S.E.2d at 83.

164 In a parlinamentary government like Great Britain's executive power is exercised by a cabinet composed of members of the legislature who are individually and collectively responsible to the legislature. See W. Wilson, CONGREESSIONAL GOVERNMENT 95 (1885).

A distinguished group of Americans is currently considering the possibility of recommending that the leaders of Congress be allowed to serve in the Cabinet. Cutler & Dillon, Can We Improve Our Constitutional System?, Wall St. J., Feb. 15, 1983, at 32, col. 3. 165 Of course, unless the appointments clause of the North Carolina Constitution of 1970 is interpreted to prohibit it, the General Assembly could provide for the appointment of members of administrative agencies by the General Assembly -- as long as it appointed none of its own members. 236/384 Page 23 of 23 ARTICLE: "FOREVER SEPARATE AND DISTINCT": SEPARATION OF POWERS IN NORTH CAROLINA.

The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article. 166

Perhaps the court was concerned lest the increase of legislative power weaken the independence of the judiciary. In this connection it may be noted that the General Assembly in 1981 gave the Joint Legislative Commission on Governmental Operations control over the expenditure of funds for judicial personnel. 167 Concern about this development had been expressed in professional circles shortly before the decision in Wallace. 168

If the court in Wallace were shaping its interpretation of the separation of powers clause in response to these concerns, it may well have reasoned that the General Assembly already possessed adequate powers to perform its constitutional role. The legislature may create administrative agencies, add to or subtract from their powers, or eliminate them altogether. It may later any administrative rule unless vested rights have accrued. Without adding its own members to administrative agencies, it may nonetheless maintain close oversight. It may, of course, enact whatever budget seems appropriate. In the final analysis, the court may have been moved by these unexpressed considerations of what might be called constitutional morality rather than by the legal arguments it ostensibly relied on.

IV. CONCLUSION

The result in Wallace is not supported by the reasons given. Consequently, [*28] to the extent that it relies on Wallace, the advisory opinion is inadequately supported. The historical argument concerning separation of powers in North Carolina is based on a partial statement of the facts. The decisions of foreign courts are of questionable relevance. The duties of the EMC are not stated in full. The dual office holding provision of the state constitution is ignored. Even if Wallace is to be understood as premised on unexpressed considerations of public policy, it is doubtful that these considerations are adequately vindicated by the result. While under the current interpretation of the separation of powers clause, legislatory may not serve on administrative agencies, the appointments clause, as presently understood, does not preclude the legislature from appointing its own nominees to such bodies as long as they are not current members of the legislature.

Copyright (c) 1983 North Carolina Law Review North Carolina Law Review

End of Document

166 Wallace, 304 N.C. at 596, 286 S.E.2d at 82.

167 An Act to Authorize Additional Judicial Officials Throughout the State, to Increase Legal Counsel Fees and to Provide for Other Related Matters, Act of July 10, 1981, ch. 964, § 20, 1981 N.C. Sess. Laws (Reg. Sess.) 1491. But see N.C. GEN. STAT. 7A-102(a) (1981).

168 Snepp, A Closer Bench and Bar, 32 N.C.B.A. BARNOTES, No. 7, at 4 (Nov.-Dec., 1981). 237/384 238/384 Our Constitutions: An Historical Perspective

239/384 240/384 Prohibited secret political societies. Moved the legislative convening date from November of even-numbered years to January of odd- number ed year s. Fixed in the constitution for the first time the rate of legislat i ve compensat i on. Called for legislation establishing a state Department of Agriculture. Abandoned the simplicity and uniformity of the 1868 court system by giving the General Assembly the power to determine the jurisdiction of all courts below the Supreme Court and establish such courts inferior to the Supreme Court as it might see fit. Reduced t he Supr eme Cour t f r om f i ve t o t hr ee member s. Required Superior Court judges to rotate among all judicial districts of the state. Disqualified for voting persons guilty of certain crimes. Established a one-year residency requirement for voting. Requi r ed non-di scr i mi nat or y r aci al segr egat i on i n t he publ i c schools. Gave t he Gener al Assembl y f ul l power t o r evi se or abol i sh t he f orm and powers of county and township gover nment s. Simplified the procedure for constitutional amendment by providing that the General Assembly might, by act adopted by three-fifths of each house at one legislative session, submit an amendment to the voters of the state (thus eliminating the former requirement of enact ment by t wo successi ve sessi ons of the General Assembly).

241/384 Given the governor veto power. Given the power to make all rules of practice and procedure in the courts inferior to the Supreme Court to a judicial council composed of all the judges of the Supreme and Superior Courts. Required the creation of inferior courts by general laws only. Removed most of t he l i mi t at i ons on t he t axi ng power s of t he Gener al Assembl y. Required the General Assembly to provide for the organization and powers of local governments by general law only. Established an appointive state Board of Education with general supervision over the public school syst em. Established an enlightened policy of state responsibility for the maintenance of educational, charitable and reformatory institutions and programs.

Authorizing the classification of property for taxation. Strengthening the limitations upon public debt. Authorizing the General Assembly to enlarge the Supreme Court, divide the State into judicial divisions, increase the number of Superior Court judges and create a Department of Justice under the Attorney General. Enlarging the Council of State by three members. Creating a new, appointive State Board of Education with general supervision of the schools. Permitting women to serve as jurors. Transferring the governorãs power to assign judges to the Chief Justice of the Supreme Court and his parole power to a Board of Paroles. Permitting the waiver of indictment in non-capital cases. Raising the compensation of General Assembly members and authorizing legislative expense allowances. I ncr easi ng t he gener al pur pose pr oper t y t ax l evy l i mi t at i on and the maximum income tax rate.

242/384 Authorizing the closing of public schools on a local option basis and the payment of educational expense gr ant s i n cer t ai n cases.

243/384 Provided for the automatic decennial reapportionment of the House of Repr esent at i ves. Clarified the provisions for succession to elective state executive offices and disability determination. Authorized a reduction in the in-state residence period for vot er s f or Pr esi dent . Allowed increases in the compensation of elected state executive officers during their terms. Requi r ed t hat t he power of t he Gener al Assembl y t o cl assi f y and exempt property for taxation be exercised by it alone and only on a uniform, statewide basis.

244/384 245/384 246/384 Prohibited all forms of capitation or poll tax. Authorized the General Assembly to enact laws empowering counti es, cities and towns to establish special taxing districts less extensive in area than the entire county or city in order to finance the provision within those special districts of a higher level of governmental service than that available in the unit at large, either by supplementing existing services or providing services not otherwise available. This provision eliminated the previous necessity of creating a new, independent governmental unit to accomplish the same result. Provided that the General Assembly, acting on a uniform, statewide basis, should make the final determination of whether voters must approve the levy of property taxes or the borrowing of money to finance particular activities of local government. For a century, the constitution had required that the levying of taxes and the borrowing of money by local government be approved by a vote of the people of the unit, unless the money was to be used for a ànecessary expense.á The j udi ci ar y, not t he Gener al Assembly, was the final arbiter of what was a ànecessary expense,á and t he Supr eme Cour t t ended t o take a rather restrictive view of necessity. The determination of what types of public expenditures should require voter approval and what types should be made by a governing board on its own authority was f ound by t he Gener al Assembl y t o be a l egi sl at i ve and not a judicial matter. The Finance Amendment hewed to this finding.

247/384 Authorized state and local government units to enter into contract s wi t h and appr opr i at e money t o private entities àfor the accomplishment of public purposes onl y.á This was designed to facilitate cooper at i ve endeavor s by gover nment and t he pr i vat e sect or f or publ i c pur poses. Defined the various forms of public financial obligations more pr eci sel y t han i n t he pr evi ous constitution, with the general effect of requiring voter approval only for the issuance of general obligation bonds and notes or for governmental guarantees of the debts of private persons or organizations. The General Assembly was directed to regulate by general law (permitting classified but not local acts) the contracting of debt by local governments. Retained the existing limitation that state and local governments may not, without voter approval, borrow more than the equivalent of two-thirds of the amount by which the unitãs indebtedness was reduced during the last fiscal period, except for purposes listed in the constitution. This list was lengthened to include àemergencies immediately threatening publ ic health or safety.á Retained unchanged the provisions governing the classification and exemption of property for purposes of property taxation. Omitted the limitation of 20¢ per $100 of valuation previously i mposed on t he gener al count y pr oper t y tax.

Set the constitutionally-specified voting age at 18 years. Required the General Assembly to set maximum age limits for servi ce as j ust i ces and j udges of t he st at e courts. Authorized the General Assembly to prescribe procedures for the censure and removal of state judges and justices. Added to the constitution a statement of policy with regard to the conservation and protection of natural r esour ces. Limited the authority of the General Assembly to incorporate cities and towns within close proximity of existing municipalities.

248/384 Requi r ed t hat t he st at e oper at e on a bal anced budget at al l t i mes. Extended to widowers (as well as to widows) the benefit of the homestead exemption. Allowed a woman (as well as a man) to insure her life for the benefit of her spouse or children free from all claims of the insuredãs creditors or of her (or his) estate. Authorized municipalities owning or operating electric power facilities to do so jointly with other public or pr i vat e power or gani zat i ons and t o i ssue el ect r i c syst em r evenue bonds to finance such facilities.

Extending the terms of all members of the General Assembly from two to four years. Authorizing the General Assembly to empower public agencies to develop new and existing seaports and airports and to finance and refinance seaport, airport and related commercial and industrial facilities for public and private parties. Authorizing the General Assembly to empower a state agency to issue tax-exempt bonds to finance facilities for private institutions of higher education.

249/384 Authorized legislation enabling state and local governments to develop seaports and airports and to participate jointly with other public agencies and with private parties and issue tax-exempt bonds for that purpose. Authorized the state to issue tax-exempt bonds to finance or refinance private college facilities. Pr ovi ded t hat when a vacancy occur s among t he ei ght el ect ed st ate executive officers (not including the governor and lieutenant governor) or elected judges and justices more than 60 days (it had been 30 days) before a general election, the vacancy must be filled at that election.

Ended North Carolinaãs unique status as the only state in the Union that did not allow its governor to vet o l egi sl at i on enact ed by t he st at e l egi sl at ur e. Si nce Januar y 1, 1997, the governor may veto ordinary st at ewi de l egi sl at i on enact ed by t he Gener al Assembl y. Hi s vet o may, however, be overridden by a vote of 3/5 of the members present and voting in both houses of the l egi sl at ur e. Expanded the types of punishments that state courts may impose on persons convicted of crimes without their consent. This amendment strengthens the basis for more modern forms of punishment, such as probation and community service, not previously authori zed by the state constitution. Assured victims of crime (as defined by the General Assembly) of certain rights, such as the right to be informed about and attend court proceedings held with respect to the accused.

250/384

251/384 252/384 253/384 254/384 255/384 256/384 257/384 258/384 259/384 260/384 261/384 262/384 263/384 264/384 265/384 266/384 267/384 268/384 269/384 270/384 271/384 272/384        !"#$%!# &'

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End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

         276/384 ! # 277/384 278/384 279/384 280/384 281/384 282/384 283/384 284/384 285/384 286/384 287/384 288/384 289/384 290/384 291/384 292/384 293/384 294/384 295/384 296/384 297/384 298/384 299/384 300/384 301/384 302/384 303/384 304/384 305/384 306/384 307/384 308/384 309/384 310/384 Separator Page

Motion to Dismiss State v. NAACP et al.

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No. 16-833 Title: North Carolina, et al., Petitioners v. North Carolina State Conference of the NAACP, et al. Docketed: December 30, 2016 Linked with 16A362 Lower Ct: United States Court of Appeals for the Fourth Circuit Case Nos.: (16-1468, 16-1469, 16-1474, 16-1529) Decision Date: July 29, 2016

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Oct 10 2016 Application (16A362) to extend the time to file a petition for a writ of certiorari from October 27, 2016 to November 28, 2016, submitted to The Chief Justice. Oct 14 2016 Application (16A362) granted by The Chief Justice extending the time to file until November 28, 2016. Nov 8 2016 Application (16A362) to extend further the time from November 28, 2016 to December 26, 2016, submitted to The Chief Justice. Nov 14 2016 Application (16A362) granted by The Chief Justice extending the time to file until December 26, 2016. Dec 27 2016 Petition for a writ of certiorari filed. (Response due January 30, 2017) Dec 27 2016 Appendix of North Carolina, et al. filed. Jan 19 2017 Brief of respondent United States in opposition filed. Jan 26 2017 Brief amici curiae of Judicial Watch, Inc. and Allied Educational Foundation filed. Jan 30 2017 Brief of respondents North Carolina State Conference of the NAACP, et al. in opposition filed. Jan 30 2017 Brief amicus curiae of Public Interest Legal Foundation filed. Feb 13 2017 Reply of petitioners North Carolina, et al. filed. Feb 15 2017 DISTRIBUTED for Conference of March 3, 2017. Feb 21 2017 Motion pursuant to Rule 46.2(a) to dismiss the petition for a writ of certiorari received from counsel for petitioners the State of North Carolina and Governor of North Carolina Roy Cooper.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

324/384 Attorneys for Petitioners: S. Kyle Duncan Schaerr | Duncan LLP (202) 714-9492; (202) 787-1060 Counsel of Record 1717 K Street, NW, Suite 900 Washington, DC 20006 [email protected] Party name: North Carolina, et al.

Grayson Kelley Chief Deputy Attorney General (919) 716-6400 Counsel of Record N.C. Department of Justice P.O. Box 629 Raleigh, NC 27602-0629 [email protected] Party name: North Carolina and Governor of North Carolina Roy Cooper Attorneys for Respondents: Daniel Thomas Donovan Kirkland & Ellis LLP (202) 879-5000 Counsel of Record 655 Fifteenth Street, N.W. Washington, DC 20005 [email protected] Party name: North Carolina State Conference of the NAACP, et al.

Noel J. Francisco Acting Solicitor General (202) 514-2217 Counsel of Record United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 [email protected] Party name: United States Other: Lauren M. Burke Judicial Watch, Inc. (202) 646-5172 425 3rd Street, SW, Ste. 800 Washington, DC 20024 [email protected] Party name: Judicial Watch, Inc. and Allied Educational Foundation

Kaylan Lytle Phillips Public Interest Legal Foudation 317-203-5599 32 E. Washington St., Ste. 1675 Indianapolis, IN 46204 [email protected] Party name: Public Interest Legal Foundation

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325/384 Separator Page

Petition for Writ of Certiorari

326/384 NO. In the Supreme Court of the United States

STATE OF NORTH CAROLINA, et al., Petitioners, v.

NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al., Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI AND VOLUME I OF THE APPENDIX

ROBERT C. STEPHENS S. KYLE DUNCAN Office of the Governor of Counsel of Record North Carolina GENE C. SCHAERR 20301 Mail Service Center STEPHEN S. SCHWARTZ Raleigh, NC 27699 Schaerr|Duncan LLP 1717 K St. NW, Suite 900 Washington, DC 20006 KARL S. BOWERS, JR. 202.714.9492 Bowers Law Office LLC [email protected] Post Office Box 50549 Columbia, SC 29250 THOMAS A. FARR PHILIP J. STRACH MICHAEL D. MCKNIGHT Ogletree Deakins Nash Smoak & Stewart, PC 4208 Six Forks Road Raleigh, NC 27609 Counsel for Petitioners

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QUESTIONS PRESENTED This case involves a challenge under Section 2 of the Voting Rights Act, 52 USC §10301 (“§2”), and the federal Constitution to North Carolina election reforms—specifically, a photo-ID requirement, a 7-day reduction in early voting, and the elimination of same- day registration, out-of-precinct voting, and pre- registration for 16-year-olds. Following two trials with over 130 expert and fact witnesses, the district court issued a 479-page opinion finding those reforms had neither discriminatory effect nor intent. Without disturbing those effect findings, the Fourth Circuit found the reforms were motivated by discriminatory intent. It relied on “evidence” that, inter alia, North Carolina enacted its reforms soon after being “release[d]” from preclearance under Section 5 of the Voting Rights Act, 52 USC §10304 (“§5”), by Shelby County v. Holder, 133 S. Ct. 2612 (2013), App. 33a; that North Carolina had received preclearance objections to election laws over the past three decades; and that legislators knew that African- Americans used some of the eliminated mechanisms at higher rates. The following questions are presented: 1. Whether a federal court has the authority to re- impose, under §2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to §5 by Shelby County. 2. Whether the Fourth Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina

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legislature nonetheless intended to deny African- Americans the right to vote. 3. Whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under §2.

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PARTIES TO THE PROCEEDING Petitioners State of North Carolina; Governor Patrick McCrory; the North Carolina State Board of Elections; Kim Westbrook Strach, in her official capacity as the Executive Director of the State Board of Elections; Joshua B. Howard, in his official capacity as a member of the State Board of Elections; Rhonda K. Amoroso, in her official capacity as a member of the State Board of Elections; Joshua D. Malcolm, in his official capacity as a member of the State Board of Elections; Paul J. Foley, in his official capacity as a member of the State Board of Elections; Maja Kricker, in her official capacity as a member of the State Board of Elections; and James Baker, in his official capacity as a member of the North Carolina State Board of Elections were Defendants in the district court and Appellees in the court of appeals. Respondents North Carolina State Conference of the NAACP, Rosanell Eaton, Emmanuel Baptist Church, Bethel A. Baptist Church, Covenant Presbyterian Church, Barbee’s Chapel Missionary Baptist Church, Armenta Eaton, Carolyn Coleman, Jocelyn Ferguson-Kelly, Faith Jackson, Mary Perry, and Maria Teresa Unger Palmer were Plaintiffs in the district court and Appellants in appeal No. 16-1468. Respondents Louis M. Duke, Josue E. Berduo, Nancy J. Lund, Brian M. Miller, Becky Hurley Mock, Lynne M. Walter, and Ebony N. West were Plaintiffs- Intervenors in the district court and Appellants in appeal No. 16-1469. Respondents the League of Women Voters of North Carolina, the North Carolina A. Philip Randolph Institute, Unifour Onestop Collaborative, Common Cause North Carolina, Goldie Wells, Kay Brandon, Octavia Rainey, Sara Stohler,

330/384 iv and Hugh Stohler were Plaintiffs in the district court and Appellants in appeal No. 16-1474. Respondent the United States was a Plaintiff in the district court and Appellant in appeal No. 16-1529.

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TABLE OF CONTENTS

Questions Presented ...... i Parties to the Proceeding ...... iii Introduction ...... 1 Opinions Below ...... 3 Jurisdiction ...... 3 Statutory Provisions Involved ...... 3 Statement ...... 4 A. North Carolina’s Electoral Reform Laws ...... 4 B. Procedural History ...... 7 1. The District Court’s Opinion ...... 8 2. The Fourth Circuit’s Opinion ...... 13 Reasons for Granting the Petition ...... 16 I. The Fourth Circuit’s Decision Effectively Nullifies Shelby County...... 16 II. By Inappropriately Convicting North Carolina Of Deliberate Racial Discrimination, The Fourth Circuit Provides a Roadmap For Invalidating Many State Election Laws...... 20 A. The Fourth Circuit’s Intent Analysis Is Egregiously Misguided...... 20 B. The Fourth Circuit’s Intent Analysis Provides A Roadmap For Invalidating Election Laws In Numerous States...... 24

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III.The Fourth Circuit’s Decision Exacerbates Circuit Confusion About The Relevance Of Statistical Disparities In §2 Claims...... 33 Conclusion ...... 36

APPENDIX

VOLUME I

Appendix A Opinion in the United States Court of Appeals for the Fourth Circuit (July 29, 2016) ...... 1a

VOLUME II

Appendix B Opinion in the United States District Court for the Middle District of North Carolina (April 25, 2016) ...... 79a

VOLUME III

Appendix C SL 2013-381 ...... 533a

Appendix D SL 2015-103 ...... 676a

Appendix E Defendants’ Proposed Findings of Fact and Conclusions of Law in the United States District Court for the Middle District of North Carolina Excerpt (May 19, 2016) ...... 709a

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TABLE OF AUTHORITIES Cases Arizona v. InterTribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) ...... 33 Bartlett v. Stephenson, 535 U.S. 1301 (2002) ...... 29 Beer v. United States, 425 U.S. 130 (1976) ...... 17 City of Mobile, Alabama v. Bolden, 446 U.S. 55 (1980) ...... 26 Crawford v. Marion County Election Board, 553 U.S. 181 (2008) ...... 1, 22 Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) ...... 33 Gause v. Brunswick County, 92 F.3d 1178 (4th Cir. Aug. 13, 1996) ...... 29 Georgia v. Ashcroft, 539 U.S. 461 (2003) ...... 17 Georgia v. United States, 411 U.S. 526 (1973) ...... 28 Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) ...... 33 Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985)...... 29 Holder v. Hall, 512 U.S. 874 (1994) ...... 16, 17 Hunt v. Cromartie, 526 U.S. 541 (1999) ...... 24

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Hunter v. Underwood, 471 U.S. 222 (1985) ...... 24 James v. Bartlett, 607 S.E.2d 638 (2005) ...... 6 Kindley v. Bartlett, No. 5:05-cv-00177 (E.D.N.C. 2005) ...... 29 Lake v. North Carolina State Board of Elections, 798 F. Supp. 1199 (M.D.N.C. 1992) ...... 29 League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ...... 7, 9, 14 Lee v. Virginia State Board of Elections, __ F.3d __, 2016 WL 7210103 (4th Cir. Dec. 13, 2016) ...... 35 Lewis v. Alamance, 99 F.3d 600 (4th Cir. 1996) ...... 29 North Carolina v. League of Women Voters of North Carolina, 135 S. Ct. 1735 (2015) ...... 7 North Carolina v. League of Women Voters of North Carolina, 135 S. Ct. 6 (2014) ...... 7 Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009) ...... 25, 26

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Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ...... 21, 30, 33 Personnel Admininstrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ...... 23 Pullman-Standard v. Swint, 456 U.S. 273 (1982) ...... 23, 24, 34, 35 Reno v. Bossier Parish School Board, 520 U.S. 471 (1997) ...... 17 Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) ...... 17, 18 Rogers v. Lodge, 458 U.S. 613 (1982) ...... 26 Sample v. Jenkins, No. 5:02-cv-00383 (E.D.N.C. 2002) ...... 29 Shelby County v. Holder, 133 S. Ct. 2612 (2013)...... passim South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012) ...... 5, 22 Thornburg v. Gingles, 478 U.S. 30 (1986) ...... 9 United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) ...... 23 Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) ...... 34

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Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ...... 11 White v. Franklin County, No. 5:03-cv-00481 (E.D.N.C. 2004) ...... 29 Statutes 28 USC §1254 ...... 3 28 USC §1291 ...... 3 28 USC §1331 ...... 3 52 USC §10301 ...... 4, 9 52 USC §10303 ...... 16 52 USC §10304 ...... 16 Other Authorities Ansolabehere, Stephen, et al., Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. F. 205 (2013) ...... 25 Clarke, Kristen, The Obama Factor: The Impact of the 2008 Presidential Election on Future Voting Rights Act Litigation, 3 Harv. L. & Pol’y Rev. 59 (2009) ...... 25 Earls, Anita S., et al., Voting Rights in North Carolina: 1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 577 (2008) ...... 29

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Kengle, Robert A., Voting Rights in Georgia: 1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 367 (2008) ...... 28

NATIONAL CONFERENCE OF STATE LEGISLATURES, ELECTION LAWS AND PROCEDURES OVERVIEW (Aug. 19, 2016) ...... 21 Powers, John M., Note: Statistical Evidence of Racially Polarized Voting in the Obama Elections, and Implications for Section 2 of the Voting Rights Act, 102 Geo. L.J. 881 (2014)...... 25, 26 Rules S. Ct. R. 10(a)...... 20 S. Ct. R. 10(c) ...... 16, 20 Regulations 28 CFR 51.19 ...... 28

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No. ______In the Supreme Court of the United States ______

STATE OF NORTH CAROLINA, et al., Petitioners, v.

NORTH CAROLINA STATE CONFERENCE OF THE NAACP, et al. ______INTRODUCTION This case involves challenges under Section 2 of the Voting Rights Act (“§2”) and the federal Constitution to North Carolina election reforms. Those reforms include a photo-ID law more lenient than the one this Court upheld eight years ago, see Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), and other voting adjustments that were already in effect during two statewide elections in which African-American participation increased. These sensible changes place North Carolina within the majority of current State election practices. The district court found North Carolina’s reforms had no discriminatory effect on African-Americans and were enacted with no discriminatory intent. Overriding the district court, however, the Fourth Circuit not only found those reforms motivated by “racially discriminatory intent,” but compared them to laws from “the era of Jim Crow.” App. 26a, 46a. That extraordinary decision merits review for three separate reasons. First, the Fourth Circuit’s decision effectively nullifies this Court’s decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013), which invalidated the

339/384 2 coverage formula for preclearance under Section 5 of the Voting Rights Act (“§5”). Palpably indignant that North Carolina’s reforms were enacted soon after the State’s “release from the [§5] preclearance requirements,” App. 33a, the Fourth Circuit in essence invented its own preclearance regime under §2. That decision guts Shelby County’s basic premise that “history did not end in 1965,” 133 S. Ct. at 2628, and that States should therefore be restored to equal sovereignty in regulating elections. Evidently in the Fourth Circuit’s eyes, where North Carolina is concerned, it is always 1965. Second, the Fourth Circuit’s decision addresses an extraordinarily important question in a way that is egregiously misguided and that threatens numerous State election laws. Simply put, the decision insults the people of North Carolina and their elected representatives by convicting them of abject racism. That charge is incredible on its face given the pains the legislature took to ensure that no one’s right to vote would be abridged, and the fact that the reforms align North Carolina with the majority of current State practices. It becomes even more perplexing given that the Fourth Circuit did not disturb the district court’s findings that the reforms have no discriminatory effect. And it becomes downright absurd given that the Fourth Circuit bluntly overrode the district court’s meticulous findings on a classic fact question—intent—reached after weeks of trial. Worst of all, the basis for the Fourth Circuit’s decision is not specific to North Carolina. On the contrary, the panel’s “evidence” showing discriminatory intent would overturn election laws in numerous States. A federal circuit should not take a step of such enormity without this Court’s review.

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Third, the decision compounds confusion among federal circuits regarding use of statistical disparities in §2 vote denial claims. Four circuits—the Fifth, Sixth, Seventh, and Ninth—already disagree on whether discriminatory effect can be proved solely through racial disparities in the use of particular voting mechanisms. Adding confusion to confusion, the Fourth Circuit has adopted the principle that legislators’ mere awareness of such disparities may prove discriminatory intent—even where the challenged laws have no discriminatory effect. OPINIONS BELOW The opinion of the court of appeals is reported at 831 F.3d 204. App. 1a–78a. The opinion of the district court is available at 2016 WL 1650774. App. 79a– 532a. JURISDICTION The court of appeals entered its judgment on July 29, 2016. App. 1a. On October 14, 2016, the Chief Justice extended the time for filing a petition for certiorari to November 28, 2016. No. 16A362. On November 15, 2016, the Chief Justice further extended the time for filing a petition for certiorari to December 26, 2016. Id. This Court has jurisdiction under 28 USC §1254(1). The court of appeals had jurisdiction under 28 USC §§1291 and 1331. STATUTORY PROVISIONS INVOLVED Section 2 of the Voting Rights Act provides, in relevant part: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or

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political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color … as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.… 52 USC §10301. STATEMENT A. North Carolina’s Electoral Reform Laws In 2013, the North Carolina legislature enacted a package of election reforms known as SL 2013-381. Of the law’s 20 measures, App. 105a–107a, only five are relevant here. Voter ID: Under previous law, poll workers confirmed voter identity through signature attestation. App. 89a. SL 2013-381 improved that antiquated system by requiring in-person voters to present photo ID. Qualifying IDs include a driver’s license; a free voter-ID card available from the DMV; a United States passport; a military or veterans ID card; or a tribal enrollment card. App. 120a–121a.

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The legislature provided a two-year “soft roll out” before the ID requirement would take effect in 2016, and appropriated about $2 million to educate voters. App. 107a, 133a. The State Board of Elections also undertook “database matching efforts” to assess which voters lacked qualifying ID, and then mailed over 200,000 voters “resources for obtaining free photo ID” and offering assistance through a “postage pre-paid response card.” App. 134a–137a. In 2015, the legislature amended the law to expand qualifying IDs and to establish an exception allowing voters lacking ID to cast a provisional ballot if they declare a “reasonable impediment” to obtaining ID and provide alternative identification. App. 118a– 119a, 177a (discussing SL 2015-103). That provisional ballot must be counted unless the stated excuse is “factually false, merely denigrating to the ID requirement, or obviously nonsensical.” App. 119a, 181a. This exception mirrors a South Carolina law precleared in 2012. South Carolina v. United States, 898 F. Supp. 2d 30, 40 (D.D.C. 2012); App. 200a–201a. Early Voting: SL 2013-381 reduced the early- voting period from 17 to 10 days. App. 121a. The first seven days had been the least-used, and the lengthier early-voting period had fostered “political gamesmanship”—in particular, locating early-voting sites in areas favoring only one political party. App. 344a–345a. To preserve early-voting opportunities, however, SL 2013-381 offset the decrease in early- voting days with a requirement that aggregate early- voting hours equal those in the previous analogous election, thus expanding evening and weekend early- voting opportunities. App. 122a, 224a–225a, 402a– 404a. These revisions were scheduled to go into effect

343/384 6 in January 2014. Even after reducing its early-voting period, North Carolina would remain within the mainstream of State early-voting practice. Many States offer no early voting at all, and a supermajority offer no weekend voting. App. 201a–203a; see infra at 21. Out-of-Precinct Voting: In 2005 the North Carolina Supreme Court interpreted State law to require voters to vote in the precinct where they reside. James v. Bartlett, 607 S.E.2d 638, 642–44 (2005); App. 95a. James observed that in-precinct voting makes elections more efficient and prevents fraud. App. 376a–377a. That same year, however, the legislature (then Democrat-controlled) retroactively overruled James and allowed voters to vote in the wrong precinct (but the correct county) by casting a provisional ballot. App. 97a. SL 2013-381 restored the pre-2005 system by eliminating out-of-precinct voting. App. 123a–124a. That change was scheduled to take effect in January 2014. By eliminating out-of-precinct voting, North Carolina would join a majority of States that disallow the practice. App. 253a; see infra at 21. Same-Day Registration: North Carolina law allows voters to register up to 25 days before an election. App. 97a–98a. Since 2007, voters could both register and vote at early-voting sites during the early-voting period. App. 98a. Administrative problems with that regime led to potentially thousands of ineligible voters participating in elections. App. 364a–365a. SL 2013- 381 repealed this provision, thus restoring the pre- 2007 system. App. 123a. That change was scheduled to take effect in January 2014. By eliminating same- day registration, North Carolina would join a super-

344/384 7 majority of States that do not allow the practice. App. 229a; see infra at 21. Pre-Registration: Since 2009, North Carolina allowed pre-registration by 16-year-olds who would not be 18 before the next general election. App. 99a. Experience showed, however, that pre-registered individuals could become confused about their eligibility to vote. App. 383a. SL 2013-381 therefore ended pre-registration by 16-year-olds, while maintaining it for 17-year-olds who will be 18 on election day. App. 124a. That change was scheduled to take effect in September 2013. By eliminating pre- registration of 16-year-olds, North Carolina would join a super-majority of States that do not allow the practice. App. 259a–260a; see infra at 21. B. Procedural History On August 12, 2013—the day SL 2013-381 was enacted—the North Carolina Conference of the NAACP and the League of Women Voters challenged the reforms under the federal Constitution and §2 of the Voting Rights Act. On September 30, 2013, the United States brought a challenge under §2. App. 125a. Various proceedings led to a preliminary injunction that eventually went into effect in 2015. App. 129a; see League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 242 (4th Cir. 2014) (“LWV”) (ordering entry of preliminary injunction); North Carolina v. League of Women Voters of N.C., 135 S. Ct. 6 (2014) (staying Fourth Circuit mandate pending certiorari); North Carolina v. League of Women Voters of N.C., 135 S. Ct. 1735 (2015) (denying certiorari).

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Except for the photo-ID requirement (which would not take effect until 2016), the 2014 midterm primary and general elections took place with the SL 2013-381 reforms in effect. During the May 6, 2014 midterm primary, relative to the 2010 midterm, African- American turnout increased from 11.4% to 13.4%. During the subsequent midterm general, again relative to the 2010 midterm, African-American participation again increased—this time from 40.4% to 42.2%. This represented the highest overall turnout increase of any group, a greater increase than white turnout (which increased from 45.7% to 46.8%), and “the smallest white–African American turnout disparity in any midterm election from 2002 to 2014.” App. 127a, 130a, 436a. On June 18, 2015—weeks before trial was to begin—the legislature enacted SL 2015-103, expanding qualifying photo IDs and establishing the reasonable impediment exception. Given that enactment, “the United States … abandoned its discriminatory effect claim to the voter-ID law.” App. 126a. The district court bifurcated the trial. In July 2015, a three-week trial addressed all challenged reforms except photo-ID. App. 130a–131a. The court heard testimony from 93 fact witnesses and sixteen experts. Id.; App. 87a. Subsequently, in January 2016, a six- day trial addressed photo-ID, featuring testimony from a further nineteen fact witnesses and five experts. App. 131a. 1. The District Court’s Opinion On April 25, 2016, the district court issued a 479- page opinion upholding all challenged provisions

346/384 9 under §2 and the Constitution. Appendix B, App. 79a. As to §2, the court found the provisions had no discriminatory impact and were not motivated by discriminatory intent. App. 521a–530a. The voluminous opinion can only be summarized here. a. No discriminatory impact To assess discriminatory impact, the district court analyzed whether (1) the challenged practices “impose a discriminatory burden” on African-American voters, and (2) that burden is caused by discriminatory “social and historical conditions.” App. 273a (citing LWV, 769 F.3d at 242). The court considered the “totality of the circumstances,” aided by the nine factors from Thornburg v. Gingles, 478 U.S. 30 (1986). App. 273a– 275a. It concluded that plaintiffs failed to establish that, “under the electoral system established by SL 2013-381 and SL 2015-103, African Americans or Hispanics ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” App. 435a (quoting 52 USC §10301(b)). The court found that none of the challenged provisions impeded African-American political participation. For instance, it found that at least 94.3% of registered African-American voters already possessed qualifying photo-ID, App. 164a, and that voters lacking IDs could easily vote under the generous reasonable impediment exception. App. 167a, 397a–399a. It also found that none of the other challenged provisions imposed a discriminatory burden given the “many [remaining] convenient registration and voting mechanisms that … provide African Americans an equal opportunity to participate in the political process.” App. 435a. The court

347/384 10 buttressed its conclusion with data from the two 2014 statewide elections showing increased African- American participation while the SL 2013-381 reforms were in effect. App. 436a. The court’s meticulous application of the Gingles factors strongly favored North Carolina. For instance, the court found that the plaintiffs’ expert failed to “catalogue any official discrimination after the 1980s” and that “by the turn of that decade, African- Americans were making significant headway in political strength.” App. 305a. The court thus found a clear break separating North Carolina’s “shameful past discrimination” from “the past quarter century.” App. 307a. Similarly, the court found no link between African-Americans’ socioeconomic disadvantages and their “ability … to cast a ballot and effectively exercise the electoral franchise after SL 2013-381,” given the “multitude of voting and registration options available in the State[.]” App. 326a–327a. Indeed, of the nine Gingles factors, the court found only one—the existence of “racially polarized” voting— unambiguously supported plaintiffs. App. 307a–308a. Applying the last Gingles factor with particular rigor, the court found none of North Carolina’s justifications for the reforms was “tenuous.” App. 332a. To the contrary, the court found the provisions served legitimate goals such as deterring voter fraud (App. 336–337a, 376a), safeguarding voter confidence (App. 373a, 467a–468a), making early voting fairer, more efficient, and less subject to political gamesmanship (App. 344a), and eliminating administrative problems (App. 353a–359a, 383a– 385a).

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Finally, the court considered whether, under the “totality of the circumstances,” the eliminated mechanisms—the prior early-voting schedule, same- day registration, or out-of-precinct voting—had fostered minority participation. The court found no evidence that they had done so, particularly given figures showing increased minority turnout and registration in the 2014 elections. App. 295a; see also App. 292a (early voting), 378a (out-of-precinct voting), 525a (same-day registration). b. No discriminatory motive The district court then analyzed whether SL 2013- 381 had been motivated by a racially discriminatory intent. App. 438a. The court applied the factors from Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and was “not persuaded that racial discrimination was a motivating factor.” App. 470a. First, the court considered whether the law bore more heavily on one race. It considered plaintiffs’ “strongest fact” to be that African-Americans had previously used some eliminated mechanisms at rates higher than whites, App. 440a, but concluded that “North Carolina’s remaining mechanisms continue to provide African Americans with an equal opportunity to participate in the political process.” Id. Plaintiffs also sought to prove discriminatory intent through evidence that some legislators had requested racial data on the use of certain voting practices. But the district court found it impossible to determine, from plaintiffs’ evidence, the “character” of much of the data the legislature actually received. App. 442a. Some of the data, particularly as to same-

349/384 12 day registration, was not available to the legislature until after SL 2013-381 had been drafted and debated. App. 444a–445a. Whatever the available data included, however, the district court found that “[a]ny responsible legislator” would have needed that type of information. App. 443a (emphasis added). First, because photo-ID laws are regularly challenged on the basis of alleged racial disparities, legislators “would need to know the disparities in order to account for such challenges.” Id. Second, at the time of the requests, North Carolina was still subject to preclearance, meaning that “evaluating racial impact was a prerequisite to evaluating the likelihood that any voting change would be pre-cleared[.]” Id. Second, the court considered whether the North Carolina legislature had a “consistent pattern” of actions disparately impacting minorities. Referring to its detailed Gingles findings, App. 292a–387a, the court found “little evidence of official discrimination since the 1980s.” App. 458a. Third, the court considered the challenged laws’ “historical background.” The North Carolina legislature had been in the process of developing SL 2013-381 at the time of this Court’s decision in Shelby County on June 25, 2013; after that decision, the legislature revised and expanded the bill, passing it a month later. App. 104a–117a. Plaintiffs argued that the legislature’s expansion of the bill following Shelby County showed discriminatory purpose. App. 459a. The district court rejected that argument, finding the more persuasive explanation to be that the end of preclearance simply “altered the burden of proof calculus for North Carolina legislators considering changes to voting laws.” App. 461a. The court also

350/384 13 found that “all concede” that the legislature followed all procedural rules in enacting the challenged laws. App. 462a. Fourth, the court found that no “contemporary statements” by legislators showed discriminatory intent. App. 466a–468a. To the contrary, the court had already found legislators’ explanations for the law non-tenuous under Gingles. App. 332a–387a. Finally, the court considered the “cumulative evidence” of intent and found that “[t]he State’s proffered justifications for the combined mechanisms under review … are consistent with the larger purpose of achieving integrity, uniformity, and efficiency in the political process.” App. 468a. 2. The Fourth Circuit’s Opinion On July 29, 2016, the Fourth Circuit reversed. It left undisturbed the district court’s conclusion that the challenged provisions had no discriminatory impact. However, the court rejected as “clearly erroneous” the district court’s factual conclusion as to the legislature’s motive in enacting SL 2013-381. App. 26a. Indeed, the court concluded that the “record ‘permits only one resolution’” of the issue, App. 57a– 58a: that those provisions were “enacted with racially discriminatory intent in violation of the Equal Protection Clause … and §2 of the [Voting Rights Act].” App. 26a. As a threshold matter, the court framed its intent analysis against the background of North Carolina’s record of racially polarized voting. App. 30a. It found that the legislature knew that African-American voters were “highly likely” to vote for Democrats, and that, “in recent years, African Americans had begun

351/384 14 registering and voting in unprecedented numbers,” leading to “much of the recent success of Democratic candidates in North Carolina.” App. 39a. That, the Court reasoned, gave the Republican-majority legislature an “incentive for intentional discrimination.” App. 31a. Proceeding to the Arlington Heights factors, the court first considered the historical background of the reforms. While conceding that past discrimination has only “limited weight” after Shelby County, the court nonetheless stated that the State’s “pre-1965 history of pernicious discrimination informs our inquiry.” App. 33a. The court also said it could not ignore that the reforms were enacted “within days of North Carolina’s release from … preclearance,” because otherwise North Carolina could “‘pick up where it left off in 1965’ to the detriment of African American voters in North Carolina.” App. 33a–34a (alteration omitted) (quoting LWV, 769 F.3d at 242). Contrary to the district court’s finding, the Fourth Circuit found the record “replete” with instances since the 1980s where “the North Carolina legislature has attempted to suppress and dilute the voting rights of African Americans.” App. 34a. Principally, the court pointed to: (1) “over fifty objection letters” sent by the U.S. Department of Justice (“DOJ”) between 1980 and 2013 contesting proposed election law changes in North Carolina, App. 35a; and (2) “fifty-five successful cases” brought under §2 during the same period, App. 36a. Second, the Fourth Circuit considered the sequence of events leading up to enactment of the reforms. The court assigned special weight to the fact that SL 2013-381 followed “immediately” after the

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Shelby County decision removed North Carolina from §5 preclearance. Id. Third, the court considered legislative history. While little history existed, the court focused on some legislators’ “requests for and use of race data[.]” App. 47a. The court inferred from this that the legislature deliberately targeted practices “disproportionately used by African Americans.” App. 48a. The court did not acknowledge or address the district court’s contrary findings about this data, including the finding that “[a]ny responsible legislator” would have needed to consider such data in light of North Carolina’s still-existing preclearance obligations. App. 443a. Fourth, the Fourth Circuit thought the challenged laws bore more heavily on African-Americans because those voters “‘disproportionately used’ the removed voting mechanisms and disproportionately lacked DMV-issued photo ID.” App. 48a. The court concluded this was enough to show unequal impact and rejected as irrelevant the district court’s finding that the evidence “demonstrated that North Carolina’s remaining mechanisms continue to provide African Americans with an equal opportunity to participate in the political process.” App. 48a–51a, 440a. Having concluded that racial discrimination motivated the North Carolina reforms, the Fourth Circuit shifted the burden to the State to prove that the law would have been enacted absent that motive. App. 55a. The court conceded that, “a rational justification can be imagined for … some of the challenged provisions,” and also that the district court “addressed the State’s justifications for each provision at length.” App. 56a. Nonetheless, the Fourth Circuit

353/384 16 independently reviewed the record and concluded that the “evidence plainly establishes race as a ‘but-for’ cause of SL 2013-381.” App. 58a. The panel therefore invalidated the challenged provisions in their entirety. App. 67a, 71a. REASONS FOR GRANTING THE PETITION The Court should grant certiorari for three separate reasons. First, the Fourth Circuit’s decision effectively nullifies Shelby County. Second, it resolves an issue of extraordinary importance—whether a State has deliberately structured its election laws to disenfranchise African-Americans—in a way that is profoundly misguided and that threatens numerous State election laws. Third, it exacerbates existing conflict among federal circuits over analysis of §2 vote denial claims. I. The Fourth Circuit’s Decision Effectively Nullifies Shelby County. The Fourth Circuit’s decision cannot be reconciled with Shelby County, which invalidated the formula for application of §5 of the Voting Rights Act. See 52 USC §§10303, 10304. In particular, the panel restores the §5 preclearance standard—which North Carolina is no longer required to satisfy—by reading it into §2, a separate provision with a different “structure, purpose, and application.” Holder v. Hall, 512 U.S. 874, 883 (1994) (Kennedy, J., joined by Rehnquist, C.J.). This is a sufficient reason to grant certiorari. See S. Ct. R. 10(c) (certiorari appropriate if a federal circuit “has decided an important federal question in a way that conflicts with relevant decisions of this Court”).

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The purpose of §5 was to prevent States subject to preclearance from enacting “voting-procedure changes … that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141 (1976). Those States could obtain “preclearance only by proving that the [proposed] change had neither the purpose nor the effect” of retrogression. Shelby Cty., 133 S. Ct. at 2620 (alteration and quotes omitted). Potential retrogression was analyzed by comparing a State’s proposed new voting rules to the “baseline” of existing or contemplated rules and determining whether the new rules would “‘abridge[ ] the right to vote’ relative to the status quo[.]” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000) (“Bossier II”); see Shelby County, 133 S. Ct. at 2626–27; Georgia v. Ashcroft, 539 U.S. 461, 482 (2003); Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 478 (1997) (“Bossier I”); Hall, 512 U.S. at 883. One consequence of the anti-retrogression rule was to establish a one-way ratchet that locked in incremental improvements in minority voting opportunities. The §2 test is discrimination, not retrogression. In a §2 case, the baseline is not the status quo, but the “hypothetical alternative” of “what the right to vote ought to be[.]” Bossier II, 528 U.S. at 334; Hall, 512 U.S. at 884 (“Unlike in §5 cases … a benchmark does not exist by definition in §2 dilution cases.”). If a State’s voting rules are discriminatory, “the status quo itself must be changed.” Bossier II, 528 U.S. at 334; see also Hall, 512 U.S. at 880–81. But at the threshold, States subject only to §2 may choose from a wide range of nondiscriminatory voting regulations, as long as they do not act with discriminatory purpose.

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While the panel purported to apply §2, in actuality it employed a variant of §5’s anti-retrogression analysis. Neither the district court nor the panel found evidence that North Carolina’s reforms have actual discriminatory effect, or even any direct evidence that they were intended to do so. Instead the panel identified potentially retrogressive effect, and inferred discriminatory intent from that. Over and over again, the panel returned to the fact that North Carolina had changed its law to remove voting mechanisms that had existed before. App. 33a, 50a-52a, 54a–55a. It accused the legislature of “re- erect[ing] … barriers” to minority electoral participation that previous legislatures had lowered. App. 39a–40a. It gave little weight to the fact that—as the district court observed—SL 2013-381 and SL 2015-103 simply aligned North Carolina with election laws in other States, many of which do not offer early voting, same-day registration, out-of-precinct voting, or preregistration. See App. 51a–52a, 201a, 229a, 253a, 259a. Instead, the panel asserted instead that “removing voting tools … meaningfully differs from not initially implementing such tools.” App. 52a. That analysis plainly derives not from §2 but §5, the provision “which uniquely deal[t] only and specifically with changes in voting procedures[.]” Bossier II, 528 U.S. at 334. And that reasoning also effectively restores a version of the previous preclearance regime by enjoining the reforms based on their potential effects alone. Considering the panel’s indignation that North Carolina enacted its reforms on the heels of Shelby County—which, as the panel put it, “release[d]” the State from preclearance, App. 33a, 41a–42a, 45a— that appears exactly what the panel had in mind.

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The panel also contradicted Shelby County in a deeper sense. If Shelby County stands for anything, it means that even in States with shameful histories of discrimination, “history did not end in 1965.” 133 S. Ct. at 2628. The Constitution does not allow the sins of Civil Rights-era legislators to be visited on their grandchildren and great-grandchildren. Id. at 2929. Nor does it permit Congress to perpetually assume that former §5 jurisdictions maintain minority voting rights purely under threat. Id. at 2627. But in the eyes of the panel, where North Carolina is concerned, it is always 1965. The Fourth Circuit’s opinion conjures a menacing world where “race and politics” are “inextricab[ly] linked,” App 14a, where “powerful undercurrents” tempt legislators to racial warfare, App. 40a, and where the current majority targets its racial opponents with “almost surgical precision,” App. 16a. In sum, the Fourth Circuit barely attempted to hide its view that North Carolina’s Republican legislators—having been vexed for six decades by §5—itched to “pick up where [they] left off in 1965” as soon as they were given the opportunity. App. 33a–34a (quotes and alteration omitted). That rule of decision, however, comes not from Shelby County but from William Faulkner: “The past is never dead. It’s not even past.” The Court should grant certiorari to resolve the conflict between the Fourth Circuit’s decision and Shelby County.

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II. By Inappropriately Convicting North Carolina Of Deliberate Racial Discrimination, The Fourth Circuit Provides a Roadmap For Invalidating Many State Election Laws. A second reason to grant certiorari is that the Fourth Circuit has decided an extraordinarily important question in a way that is egregiously misguided and that threatens numerous State election laws. See S. Ct. R. 10(a), 10(c). There is no worse charge against a State than deliberate racial discrimination, especially in how the State governs elections. This Court’s decisions wisely limit such a charge to the clearest-cut cases. Yet the Fourth Circuit did not hesitate to level it here: It accused and convicted the North Carolina legislature of deliberately designing its laws not just to disenfranchise African-Americans, but to usher in a new “era of Jim Crow.” App. 46a. That decision is an affront to North Carolina’s citizens and their elected representatives and provides a roadmap for invalidating election laws in numerous States. A. The Fourth Circuit’s Intent Analysis Is Egregiously Misguided. Two things in particular demonstrate how extraordinary the Fourth Circuit’s decision is, how far it goes beyond this Court’s precedents, and why it calls out for review. 1. First, the notion that these election laws are reminiscent of “the era of Jim Crow” is ludicrous. To the contrary, North Carolina’s reforms leave it with a voting system in the national mainstream and, indeed, one more open than many other States.

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Three practices eliminated by North Carolina’s reform—same-day registration, out-of-precinct voting, and pre-registration—are already disallowed by most States. A supermajority of States disallows same-day registration and pre-registration of 16-year-olds (38 and 40, respectively), and a majority does not count out-of-precinct ballots (26).1 See also, e.g., Ohio Democratic Party v. Husted, 834 F.3d 620, 628–29 (6th Cir. 2016). A fourth practice—early voting—was not eliminated but shortened from 17 to 10 days, while maintaining aggregate voting hours from prior elections. App. 343a. Again, this puts North Carolina in the mainstream: 37 States offer early-voting periods ranging from four to 45 days, and North Carolina remains one of only 22 States to offer weekend early voting.2 By making these sensible reforms, North Carolina was not receding into the racist past; it was aligning with current State practices. Nor is North Carolina’s photo-ID law a reversion to the “Jim Crow” past. As this Court held in Crawford, such laws constitutionally further “weighty” interests in “preventing voter fraud” and promoting “public

1 See generally NATIONAL CONFERENCE OF STATE LEGISLATURES, ELECTION LAWS AND PROCEDURES OVERVIEW (Aug. 19, 2016) (“NCSL Overview”) (cataloguing election practices), www.ncsl.org. The district court noted that accurately counting State election practices is “subject to interpretation and coding,” App. 229a, so its figures are marginally different from the NCSL’s. App. 201a–203a, 229a, 253a, 259a. 2 See NCSL Overview. North Carolina also continues to be one of 27 States to offer no-excuse absentee voting, see id., a practice whose availability mitigates any effects from reducing early- voting days.

359/384 22 confidence in the integrity of the electoral process.” Crawford, 553 U.S. at 191, 197. And compared to the law upheld in Crawford, North Carolina’s law has far more features designed to maximize the right to vote, including: x its lengthy implementation period, App. 164a, 454a; x the $2 million the legislature set aside to educate voters about the ID requirement, App. 133a; x the State’s efforts to identify voters who lack qualifying ID and provide means for them to obtain a free one, App. 136a; x the legislature’s expansion of the list of qualifying IDs before the requirement’s effective date, App. 117a; and x the lenient “reasonable impediment exception” that allows voters lacking ID to cast a provisional ballot. App. 118a, 529a; South Carolina, 898 F. Supp. 2d 30) (preclearing identical requirement). Under Crawford, it is hard to imagine any but the most draconian photo-ID laws being invalidated as purposefully discriminatory. The panel’s decision to invalidate this lenient law on that basis—while equating it with “Jim Crow,” App. 46a—shows that something has gone badly awry. 2. Second, to the best of our knowledge, the Fourth Circuit’s decision marks the first time in history that an election law has been invalidated as purposefully discriminatory without either discriminatory effect or direct evidence of discriminatory intent. Such a

360/384 23 dramatic step beyond this Court’s precedents warrants review. This Court has admonished that “discriminatory purpose” means “more than intent as volition or intent as awareness of consequences.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (citing United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 179 (1977) (Stewart, J., concurring)). Rather, it means a decision-maker acted “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. It is deeply implausible that North Carolina’s ID law was enacted “because of” its potential impact on African-American voters when the legislature actively ensured it would not adversely affect that group, see App. 117a, 118a, 133a, 136a, and where not a shred of legislative history suggests such intent. It is even more shocking for a court of appeals to override a district court’s finding on a paradigmatic fact question—legislative motive—based on a paper record. The district court’s finding that “racial discrimination was [not] a motivating factor” in SL 2013-381, App. 470a, derived from a meticulous examination of a more than 25,000-page record that features the testimony of 21 expert and 112 fact witnesses across two trials spanning 21 days. App. 87a. Nonetheless, based on its own evaluation of the evidence, the Fourth Circuit announced that this massive record “‘permits only one resolution,’” namely that “race [was] a ‘but for’ cause of SL 2013-381.” App. 57a–58a (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982)). Furthermore the panel cited only one case in which an appellate court reversed a district court’s finding

361/384 24 and rendered its own finding of intentional racial discrimination: Hunter v. Underwood, a case where Alabama conceded that the century-old law at issue was motivated by discriminatory intent, and where the law’s “disparate effect persists today.” 471 U.S. 222, 227, 229, 231 (1985). App. 27a. In less flagrant situations, however, this Court has found “error” when a district court “resolve[s] the disputed fact of [discriminatory] motivation at the summary judgment stage.” Hunt v. Cromartie, 526 U.S. 541, 552–53 (1999). And that rule has even greater force, as here, where a court of appeals reviews the district court’s resolution of fact questions after lengthy trial proceedings involving live witnesses. In that situation, even if a reviewing court is convinced the lower court erred, “the court of appeals is not relieved of the usual requirement of remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance.” Pullman-Standard, 456 U.S. at 293. The panel’s decision casts a pall over every electoral measure the North Carolina legislature may pass in the future, and on the weakest possible factual and legal grounds. The Court should grant review and reverse it. B. The Fourth Circuit’s Intent Analysis Provides A Roadmap For Invalidating Election Laws In Numerous States. Respondents will likely try to characterize the Fourth Circuit’s decision as fact-bound and affecting only North Carolina. The opposite is true. Most of the “evidence” the Fourth Circuit relied on to find discriminatory intent could readily be deployed to invalidate the election laws of numerous States. The potential multi-State effects of the Fourth Circuit’s

362/384 25 decision thus furnish an independent reason for granting certiorari. 1. The Fourth Circuit’s principal theory for identifying discriminatory intent was that “racially polarized” voting in North Carolina provided an incentive for Republicans to discriminate against African-Americans as reliable Democratic voters. App. 33a, 39a–40a. The court’s opinion hammers this theme repeatedly. App. 14a, 30a, 32a, 38a. It is hard to imagine a more destabilizing addition to the §2 vote denial analysis than “racial polarization.” Polarized voting, after all, “is not a problem unique to the South.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 228 (2009) (“NAMUDNO”) (Thomas, J., concurring). African- American voters typically favor the Democratic Party—by forty points or more—in every part of the Nation,3 both in States formerly subject to §5 preclearance and in States that were not.4 If polarized voting implies discriminatory targeting whenever

3 See Kristen Clarke, The Obama Factor: The Impact of the 2008 Presidential Election on Future Voting Rights Act Litigation, 3 Harv. L. & Pol’y Rev. 59, 71–72 Table 2 (2009). 4 See Stephen Ansolabehere, Nathaniel Persily, Charles Stewart III, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. F. 205 (2013); see also John M. Powers, Note: Statistical Evidence of Racially Polarized Voting in the Obama Elections, and Implications for Section 2 of the Voting Rights Act, 102 Geo. L.J. 881, 892 (2014) (noting “courts have recently found racial bloc voting patterns in Section 2 cases litigated against jurisdictions in Wyoming, New York, and Ohio”).

363/384 26 election laws are reformed, any new voting regulation proposed by Republicans in any State would be suspect by definition. The partisan toxicity that wrongheaded standard would introduce into the Voting Rights Act can scarcely be imagined. Moreover, making a vote denial analysis turn on racial polarization fits badly with this Court’s precedents. Even in the context of vote dilution, where polarization has been a part of this Court’s analysis since Gingles, see 478 U.S. at 48, courts have not yet resolved what polarization is, how to identify it, and how much of it is enough to matter. See Powers, supra, at 888–89. Transposing polarization into vote denial cases, as the Fourth Circuit has done here, is hardly a promising idea. Moreover, the Fourth Circuit’s polarization analysis again conflicts with Shelby County. To be sure, the dissent in that case—in terms strikingly similar to the Fourth Circuit’s—thought polarization incentivizes racial discrimination and thus justifies preclearance. Shelby Cty., 133 S. Ct. at 2643 (Ginsburg, J. dissenting). But the majority disagreed, sharply distinguishing such “second-generation barriers” as involving “vote dilution,” not “access to the ballot.” Id. at 2629. And elsewhere this Court has cautioned that “racially polarized voting is not evidence of unconstitutional discrimination.” NAMUDNO, 557 U.S. at 228 (Thomas, J., concurring) (citing City of Mobile, Ala. v. Bolden, 446 U.S. 55, 71 (1980)); see also Rogers v. Lodge, 458 U.S. 613, 623–24 (1982) (rejecting inference based on polarization but affirming finding of discrimination on other grounds). Indeed, the Fourth Circuit virtually conceded as

364/384 27 much, see App. 31a, but drew the inference anyway. Its willingness to open that door for the first time should not go unreviewed. 2. The panel’s supposed historical evidence of official discrimination in North Carolina, moreover, could be used to strike down voting laws in any former preclearance State. The Fourth Circuit identified as key evidence “over fifty [DOJ] objection letters” sent under §5 of the Voting Rights Act from 1980 to 2013. App. 35a. But if having received such letters over the past three decades shows present discriminatory intent, then numerous former §5 States are in even greater jeopardy of having election changes invalidated under §2—such as Alabama (64 objection letters since 1980), Mississippi (125), Georgia (97), Louisiana (100), Texas (134), and South Carolina (76). See Section 5 Objection Letters, https://www.justice.gov/crt/section-5-objection-letters. The Fourth Circuit insisted this reasoning would not “freeze [ ] election law in place as it is today,” App. 72a, but why wouldn’t such a freeze be the inevitable result of the Fourth Circuit’s guilt-by-past-conduct standard? Assuming they are probative at all, the §5 letters show nothing like the pervasive intentional discrimination suggested by the Fourth Circuit. To begin with, the vast majority focuses on purported disparate effects rather than purposeful discrimination. See, e.g., DOJ Ltr. of Apr. 11, 1986. Eleven of the fifty were subsequently withdrawn by DOJ. See Objection letter table, https://www.justice.gov/crt/voting-determination- letters-north-carolina. Of the thirty-nine remaining objections, only ten actually concerned the State as

365/384 28 opposed to a municipality, county, or school board. Finally, contrary to the Fourth Circuit’s suggestion that “several [letters] since 2000” concerned “North Carolina,” App. 35a, no letter concerned the State, as opposed to a locality, after 1996. In other words, the State went from 1996 to 2013—seventeen years— without receiving a §5 letter from DOJ. Finally, a §5 objection does not equate to a finding of anything. It means only that the recipient government has not carried its burden to show that a proposed change lacks discriminatory purpose or effect. See Georgia v. United States, 411 U.S. 526 (1973); 28 CFR 51.19. App. 35a. If a court can infer discriminatory intent by North Carolina on that basis, it can do so in any former preclearance jurisdiction. 3. The same is true of the Fourth Circuit’s use of §2 lawsuits against North Carolina. App. 36a. In past decades §2 lawsuits have challenged election laws in many States, many successfully. See, e.g., Robert A. Kengle, Voting Rights in Georgia: 1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 367, 402 (2008) (discussing dozens of §2 cases in Georgia). Are courts to infer that any election law enacted today by any State that lost a §2 lawsuit in the past is motivated by discriminatory intent? The Fourth Circuit’s standard plainly suggests the answer is yes. Furthermore, when one considers the “evidence” the Fourth Circuit cited, it is obvious why the mere existence of prior §2 lawsuits does not reliably indicate intentional discrimination. Relying on a law review article, the court purported to identify “fifty-five successful” §2 lawsuits in North Carolina since 1980. See App. 36a (citing Anita S. Earls, Emily Wynes, LeeAnne Quatrucci, Voting Rights in North Carolina:

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1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 577 (2008)). Even a cursory review of that article shows the Fourth Circuit was mistaken. While the article surveys fifty- five lawsuits, see id. (App. B), not every one concerned intentional discrimination.5 Many of the cases were resolved in favor of the defendant. See, e.g., Gause v. Brunswick County, 92 F.3d 1178 (4th Cir. Aug. 13, 1996) (table); Lewis v. Alamance, 99 F.3d 600 (4th Cir. 1996). Only a small number involved legislative action. See, e.g., Gingles, 478 U.S. 30; Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985) (enjoining election of judges under non-precleared laws). And only a handful involved the State, as opposed to a local government body. Finally, the surveyed cases do not contain one relevant and successful suit after 1997— sixteen years before North Carolina enacted the reforms under review.6 If this is enough to support an inference of intentional discrimination by North Carolina, few States are safe. 4. The Fourth Circuit also relied on evidence that African-Americans in North Carolina

5 See, e.g., Bartlett v. Stephenson, 535 U.S. 1301 (2002) (addressing whether whole county provision in state constitution was voided by §2); Lake v. N.C. State Bd. of Elections, 798 F. Supp. 1199 (M.D.N.C. 1992) (unsuccessful lawsuit challenging extension of election hours). 6 Of the four after 1997, two are irrelevant. See Bartlett, 535 U.S. 1301 (whole county provision in state constitution not voided by §2); Kindley v. Bartlett, No. 5:05-cv-00177 (E.D.N.C. 2005) (county chairman challenged non-precleared provisional ballot law). The other two did not turn out favorably for the plaintiff. See Sample v. Jenkins, No. 5:02-cv-00383 (E.D.N.C. 2002) (dismissed following preclearance approval); White v. Franklin County, No. 5:03-cv-00481 (E.D.N.C. 2004) (mooted by intervening events).

367/384 30 disproportionately lack “DMV-issued ID”; that African-American voters use some mechanisms restricted by SL 2013-381 at rates higher than whites; and that the legislature was aware of those figures when enacting the law. App. 47a–48a. Using this sort of evidence to show discriminatory intent, however, would leave many States’ election laws vulnerable as well. For instance, as the district court pointed out, plaintiffs’ own expert testified that “ID possession disparities exist nationwide” and that he could not “find a combination of acceptable photo IDs that will make these disparities go away.” App. 448a; see also, e.g., Husted, 834 F.3d at 631 (noting “evidence that African Americans may use early in-person voting at higher rates than other voters”). The Fourth Circuit’s analysis, therefore, “would likely invalidate voter-ID laws in any State where they are enacted, regardless of the assortment of IDs selected.” App. 448a. As for the legislature’s awareness of those statistical differences, the district court pointed out that “[a]ny responsible legislator would need to know” about such data to account for inevitable legal challenges to election laws—particularly considering that the allegedly suspect requests occurred when North Carolina was still under preclearance. App. 443a. In other words, the Fourth Circuit based its finding on actions any legislator should have taken to evaluate the potential racial impact of an election change—especially in a State then subject to preclearance. 5. Inevitably, respondents will point to the Fourth Circuit’s supposed “smoking gun,” in which the State supposedly conceded that it “did away with one of the

368/384 31 two days of Sunday voting”—i.e., when shortening the early-voting period—because “‘[c]ounties with Sunday voting in 2014 were disproportionately black.’” App. 40a (quoting Defs.’ Prop. Findings of Fact and Conclusions of Law); App. 711a. In fact, that “smoking gun” is just smoke and mirrors. To hypothesize that North Carolina intended to keep African-Americans from voting by eliminating only the first of two Sunday early-voting days is absurd. “[I]n 2010, no African American voted on the first Sunday of early voting” in North Carolina, because no county offered voting on that day. App. 218a. All voters, furthermore—white and African- American alike—were more likely to vote during the last ten early-voting days than during the first seven. App. 208a. The panel’s interpretation thus implies that North Carolina intended to disenfranchise African-Americans by eliminating a voting day that not a single African-American voter had actually used during the previous midterm general election, while not only retaining voting on the days that African- Americans use most, but increasing the voting hours on those days. App. 224a–225a (describing increase in early voting availability, including Sunday voting, between 2010 and 2014); App. 402a–404a. The argument defeats itself. The Fourth Circuit also grossly distorts what North Carolina actually stated. App. 711a. The State’s proposed findings included racial statistics to illustrate how the then-Democrat-controlled board of elections ensured that Sunday voting would be available in heavily Democrat and/or African- American counties but not in counties more likely to

369/384 32 vote for Republicans. See id.; see also App. 344a–345a (finding such manipulation had occurred). North Carolina cannot be faulted for making that point, nor for its response—namely, to “make [early voting] more convenient for all voters” by concentrating early voting on the days all voters are likeliest to use. App. 712a (emphasis added). As the State explained, those efforts led to an increase in “the number of days for Saturday and Sunday early voting, and the number of counties that held Saturday or Sunday voting.” App. 224a–225a, 402a–404a. There is no “smoking gun” here—only more evidence of the care and evenhandedness that went into these sensible electoral reforms. III. The Fourth Circuit’s Decision Exacerbates Circuit Confusion About The Relevance Of Statistical Disparities In §2 Claims. A third reason to grant certiorari is that the Fourth Circuit’s decision adds another layer of conflict to the already muddled approach of federal circuits to statistical evidence in §2 claims. Four circuits—the Fifth, Sixth, Seventh, and Ninth—already disagree on whether statistical racial disparities in the use of particular voting mechanisms can prove discriminatory effect under §2. The Fourth Circuit’s holding—that legislators’ awareness of statistical disparities may prove discriminatory purpose even in the absence of discriminatory effect—complicates matters still further. The Court should grant certiorari to clarify that mere disparities in the use of voting mechanisms are insufficient to prove discriminatory purpose or effect under §2. The Ninth and Seventh Circuits have held that statistical racial disparities in possession of required

370/384 33 voter-ID are insufficient to prove a §2 vote denial claim. In Gonzalez v. Arizona, the Ninth Circuit affirmed the district court’s conclusion that Arizona’s photo-ID law did not violate §2 solely because “Latinos, among other ethnic groups, are less likely to possess the [required] forms of identification[.]” 677 F.3d 383, 407 (9th Cir. 2012) (internal quotations omitted), aff’d on other grounds sub nom. Arizona v. InterTribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013). Instead, the court required “evidence that Latinos’ ability or inability to obtain or possess identification for voting purposes … resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice.” Id. (emphasis added). Similarly, in Frank v. Walker, the Seventh Circuit rejected the district court’s conclusion that disparities in African- Americans’ possession of qualifying IDs established a §2 denial claim. 768 F.3d 744, 752–53 (7th Cir. 2014), cert. denied, 135 S. Ct. 1551. The Seventh Circuit concluded that those findings “do not show a ‘denial’ of anything” under §2, which, instead, requires showing that minority voters “have less ‘opportunity’ than whites to get photo IDs.” Id. at 753. In Ohio Democratic Party v. Husted, the Sixth Circuit followed the same approach in rejecting the claim that Ohio’s six-day reduction in its early-voting period violated §2 or the Equal Protection Clause. 834 F.3d 620. The court reversed the district court’s inference of a discriminatory burden from the mere fact that “African Americans have shown a preference for voting [during the eliminated period] at a rate higher than other voters.” Id. at 627–28. In the Sixth Circuit’s view, this analysis begged the pertinent §2 question, which is whether the voting change “actually

371/384 34 disparately impacts African Americans” by giving them “less opportunity” than others to participate. Id. at 639 (emphasis added). The Fifth Circuit has taken a different approach. In Veasey v. Abbott, a fractured en banc court relied in part on statistical disparities to conclude that a Texas voter-ID law “disparately impacts African-American and Hispanic registered voters[.]” 830 F.3d 216, 251, 264 n.61 (5th Cir. 2016), pet. for certiorari filed, Sept. 23, 2016. With respect to the discriminatory purpose inquiry, the court “remand[ed] for a reweighing of the evidence.” Id. at 231, 230 (plurality) (quoting Pullman-Standard, 456 U.S. at 292). Nonetheless, the court added that the “circumstantial” evidence supporting discriminatory intent included the fact that “drafters and proponents of [the Texas ID law] were aware of the likely disproportionate effect of the law on minorities.” Id. at 236. The Fourth Circuit’s decision in this case further muddies the standards for §2 vote denial claims in two respects. First, the Fourth Circuit has adopted yet a third approach to statistical racial disparities in the use of voting mechanisms. Unlike the Sixth, Seventh, and Ninth Circuits—but like the Fifth—the Fourth Circuit considers such disparities as highly probative that minorities have been denied voting opportunities under §2. But unlike the Fifth Circuit, which considered such disparities as to both discriminatory impact and purpose, the Fourth Circuit considers them as to purpose even when the challenged laws lack discriminatory impact. Second, the Fourth Circuit has confused the standard of review for district court findings. Whereas the Fifth Circuit followed this Court’s “usual

372/384 35 requirement” of ordering remand instead of re- weighing intent evidence, see Pullman-Standard, 456 U.S. at 292, the Fourth Circuit declared that the massive district court record permitted only one factual conclusion—namely that the North Carolina legislature acted with racially discriminatory intent. App. 57a–58a. The confusion has been deepened still further by the Fourth Circuit’s decision in Lee v. Virginia State Board of Elections, in which a different panel upheld a Virginia photo-ID law quite similar to North Carolina’s. See __ F.3d __, 2016 WL 7210103 (4th Cir. Dec. 13, 2016). The Lee panel was bound by the decision under review here but sought to distinguish it on various minor grounds—e.g., that the Virginia legislature acted before Shelby County was decided, that no racial data had been reviewed by the legislature, and so on. See id. at *9–10. That reasoning only illustrates that the Fourth Circuit’s analysis does not lead to predictable resolutions of photo-ID cases, even within the same circuit. The Court should grant certiorari to resolve this conflict over the relevance of statistical racial disparities in the application of §2 of the Voting Rights Act. CONCLUSION The petition for writ of certiorari should be granted.

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Respectfully submitted,

ROBERT C. STEPHENS S. KYLE DUNCAN Office of the Governor Counsel of Record of North Carolina GENE C. SCHAERR 20301 Mail Service STEPHEN S. SCHWARTZ Center Schaerr|Duncan LLP Raleigh, NC 27699 1717 K Street NW, Suite 900 KARL S. BOWERS, JR. Bowers Law Office LLC Washington, DC 20006 Post Office Box 50549 (202) 714-9492 Columbia, SC 29250 KDuncan@Schaerr- Duncan.com

THOMAS A. FARR PHILIP J. STRACH MICHAEL D. MCKNIGHT Ogletree Deakins Nash Smoak & Stewart, PC 4208 Six Forks Road Raleigh, NC 27609

Counsel for Petitioners

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