State ex rel. Wallace v. Bone

304 N.C. 591 *; 286 S.E.2d 79 **; 1982 N.C. LEXIS 1230 ***

STATE OF NORTH CAROLINA, ex rel. JAMES C. WALLACE and DAVID HOWELLS v. ROGER W. BONE and ROBIE L. NASH; FREDERICK S. BARKALOW and BRENDA ARMSTRONG v. J. J. HARRINGTON, R. P. THOMAS, ROGER W. BONE and ROBIE NASH

Prior History:  [***1]  Appeal by plaintiffs from Bailey, J., 18 March 1981 Session, Wake Superior Court.

On 18 February 1981, pursuant to leave granted by the Attorney General, plaintiffs Wallace and Howells instituted an action in the nature of quo warranto against defendants Bone and Nash, members of the North Carolina House of Representatives, challenging the legality of their serving as members of the North Carolina Environmental Management Commission (EMC). On the same day, plaintiffs Barkalow and Armstrong instituted an action against defendants Bone and Nash, and also defendants Harrington and Thomas, the latter two being members of the North Carolina Senate, challenging the legality of defendants serving on the EMC.

The gist of the complaints is that the service of defendants on the EMC at the same time they are serving as members of the General Assembly violates the Separation of Powers clause of the North Carolina Constitution. Plaintiffs allege that Section 6 of Chapter 1158 of the 1979 Session Laws (Second Session) [codified as G.S. 143B-283(d)] is unconstitutional. This section increases the membership of the EMC by four and provides that two of the additional members shall [***2]  be members of the House of Representatives appointed by the Speaker of the House, and that the other two shall be members of the Senate appointed by the President of the Senate.

Defendants filed answers in which they admitted most of the allegations of the complaints. However, they denied that the act of the General Assembly complained of is unconstitutional and that their service on the EMC is invalid. They asked that the act be declared constitutional.

By consent of the parties, the actions were consolidated for trial and disposition. On 13 March 1981 the parties agreed to a pre-trial order which contains the following undisputed facts:

a. James C. Wallace is a citizen, resident, and taxpayer of Orange County, North Carolina.

b. David H. Howells is a citizen, resident and taxpayer of Wake County, North Carolina.

c. Frederick S. Barkalow is a citizen and resident of Wake County, North Carolina.

d. Brenda Armstrong is a citizen and resident of Durham County, North Carolina.

e. Wallace, Howells, Barkalow, and Armstrong are members of the Environmental Management Commission appointed by the Governor, pursuant to G.S. 143B-283(a).

f. Roger W. Bone is a citizen and resident [***3]  of Nash County, North Carolina, and is an elected member of the North Carolina House of Representatives. He is Vice Chairman of the House Committee on Water and Air Resources.

g. Robie Nash is a citizen and resident of Rowan County, North Carolina, and is an elected member of the North Carolina House of Representatives. He serves on both the Water and Air Resources and Energy Committees of the House.

h. J. J. Harrington is a citizen and resident of Bertie County, North Carolina, and is an elected member of the North Carolina Senate. He serves on the Senate Agriculture, Manufacturing, and Public Utilities and Energy Committees.

i. R. P. Thomas is a citizen and resident of Henderson County, North Carolina, and is an elected member of the North Carolina Senate. He serves on both the Senate Local Government & Regional Affairs and Manufacturing Committees.

j. Senators Harrington and Thomas are members of the Environmental Management Commission appointed by the Lieutenant Governor, pursuant to G.S. 143B-283(d)(2).

k. Representatives Bone and Nash are members of the Environmental Management Commission appointed by the Speaker of the House on February 11, 1981, and inducted into office [***4]  on February 12, 1981, pursuant to G.S. 143B-283(d)(1).

l. 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. 143B-282.

m. Members of the Environmental Management Commission are public officers.

n. The provision pursuant to which Senators Harrington and Thomas and Representatives Bone and Nash were appointed [G.S. 143B-283(d)] was enacted by the General Assembly in June 1980 as Section 6 of Chapter 1158 of the 1979 Session Laws (2nd Session 1980).

o. Prior to the enactment of G.S. 143B-243(d), the Environmental Management Commission consisted of thirteen (13) members appointed by the Governor. After the enactment of G.S. 143B-243(d), the Environmental Management Commission consists of seventeen (17) members of which thirteen (13) are appointed by the Governor, two (2) are appointed by the Speaker of the House from the membership of the House, and two (2) are appointed by the President of the Senate (Lieutenant Governor) from the membership of the Senate.

In the pre-trial order the parties also agreed that the contested issue to be determined by the [***5]  court is

Whether the provisions of G.S. 143B-243(d) [1979 S.L., Ch. 1158, § 6 (2nd Session, 1981)], by which two representatives and two senators were appointed to membership on the Environmental Management Commission, violate the separation of powers provision of the Constitution of North Carolina (N.C. Const., Art. I, § 6).

Following a hearing at which Judge Bailey considered the pleadings, the stipulations, briefs filed by all parties, and arguments of counsel, he entered a judgment in which he found facts substantially as stipulated by the parties. He concluded as a matter of law, inter alia, the following:

5. The legislative members of the Environmental Management Commission (defendants) are in a clear minority position on the Commission. The statutory composition of the Commission does not represent an attempt by the General Assembly to usurp the functions of the executive branch of State government, but represents a cooperative effort between the executive and legislative branches. This court wishes to make it clear that the clear minority position of the legislators on the Commission is a critical factor in the court's decision.

6. Under the circumstances [***6]  presented in this case, individual members of the legislature may serve on the Environmental Management Commission, without violating the separation of powers provision in Article I, § 6 of the Constitution of North Carolina, where such service falls in the realm of cooperation on the part of the legislature and there is no evidence of an attempt to usurp functions of the executive branch of our State government.

Judge Bailey also concluded that the challenged statute is constitutional. He further concluded that plaintiffs are not entitled to the relief sought and dismissed the actions.

Plaintiffs appealed and defendants petitioned this court for discretionary review prior to determination in the Court of Appeals. Defendants contended that the appeal has significant public interest and that the legal principle involved in these cases is of major significance to the jurisprudence of the state. Plaintiffs joined in the request that we bypass the Court of Appeals. This court allowed the petition on 2 June 1981.

Disposition: Reversed.

CORE TERMS

separation of powers, powers, member of the legislature, delegates, vested, air, state constitution, executive power, judicial power, decisions, functions, pollution, finance, doctrine of separation of powers, federal constitution, governing body, commissions, cooperation, inferior, approve, usurp

Constitutional Law, Separation of Powers, Governments, State & Territorial Governments, General Overview, Legislation, Enactment, Federal Government, US Congress, The Presidency, Executive Offices, Congressional Duties & Powers, Lower Federal Courts, Administrative Law, Separation of Powers, Jurisdiction, Environmental Law, Natural Resources & Public Lands, Public Improvements, Community Redevelopment, Air Quality, Water Quality, Legislative Controls