Summary
recognizing that the Office of Administrative Hearings exercises judicial functions, yet is housed in the executive branch
Summary of this case from State v. BergerOpinion
No. 61PA87
Filed 3 September 1987
1. Constitutional Law 5, 9 — Director of Office of Administrative Hearings — appointment by Chief Justice — constitutionality of statute The statute providing that the Chief Justice of the N.C. Supreme Court shall appoint the Director of the Office of Administrative Hearings, N.C.G.S. 7A-752, does not violate Art. III, 5 (8) of the N.C. Constitution, which authorizes the Governor to appoint "all officers whose appointments are not otherwise provided for." The phrase "whose appointments are not otherwise provided for" does not mean "whose appointments are not otherwise provided for by the Constitution itself," and appointment of the Director is "otherwise provided for" within the meaning of Art. III, 5 (8).
2. Constitutional Law 5, 9 — Director of Office of Administrative Hearings — appointment by Chief Justice — constitutionality of statute The statute providing that the Chief Justice of the N.C. Supreme Court shall appoint the Director of the Office of Administrative Hearings, N.C.G.S. 7A-752, does not violate the separation of powers provision of Art. I, 6 of the N.C. Constitution or the provision of Art. III, 1 vesting executive power in the Governor since the appointment of the Director of the Office of Administrative Hearings is not an exercise of executive power.
APPEAL by plaintiff from Preston, Judge, at the 1 December 1986 term of Superior Court, WAKE County. A petition pursuant to N.C.G.S. 7A-31 and Rule 15(a) of the North Carolina Rules of Appellate Procedure to bypass the Court of Appeals prior to its determination of the case was allowed. Heard in the Supreme Court 13 May 1987.
Moore and Van Allen, by Arch T. Allen, III and Sarah Wesley Fox, for plaintiff appellant.
Lacy H. Thornburg, Attorney General, by Andrew A. Vanore, Jr., Chief Deputy Attorney General and Thomas F. Moffitt, for defendant appellee.
Chief Justice EXUM did not participate in the consideration or decision of this case.
Justice MEYER concurring in result.
Justice WHICHARD joins in this concurring opinion.
Justice MARTIN dissenting.
The plaintiff, who is the Governor of North Carolina, brought this declaratory judgment action challenging the constitutionality of N.C.G.S. 7A-752, which provides that the Chief Justice of the Supreme Court of North Carolina shall appoint the Director of the Office of Administrative Hearings of the State of North Carolina. The plaintiff alleged that this provision violates Article I, Sec. 6 of the Constitution of North Carolina, providing for the separation of powers, Article III, Sec. 1, providing that the executive power shall be vested in the Governor, and Article III, Sec. 5 (8) of the Constitution of North Carolina, providing for appointment duties of the Governor. The plaintiff also challenged on the same grounds the constitutionality of N.C.G.S. 7A-753, which provides the Director shall appoint five additional hearing officers.
The plaintiff joined to the action a claim for a remedy in the nature of quo warranto, Article 41, Chapter 1 of the North Carolina General Statutes. The plaintiff alleged that the defendant, who was appointed Director of the Office of Administrative Hearings of the State of North Carolina by the Honorable Joseph Branch, Chief Justice of the Supreme Court of North Carolina, and was sworn into office on 1 January 1986, holds his office unconstitutionally.
The defendant filed answer and the action was tried without a jury by Judge Preston at the 20 October 1986 Civil Session of Superior Court, Wake County. On 1 December 1986, Judge Preston entered a judgment in which he held that N.C.G.S. 7A-752 and 753 do not violate Article I, Sec. 6, or Article III, Sec. 1 and Sec. 5 (8) of the Constitution of North Carolina. He also held that the General Assembly can constitutionally delegate to the Chief Justice of the Supreme Court of North Carolina the power to fill the office of the Director of the Office of Administrative Hearings and that the defendant lawfully holds the public office of Director of the Office of Administrative Hearings. The relief prayed for by the plaintiff in the nature of quo warranto to oust the defendant from office was denied. The plaintiff appealed.
This case brings to the Court the question of whether the General Assembly may delegate to the Chief Justice of the Supreme Court of North Carolina the power to appoint the Director of an agency created by the General Assembly. The appellant contends the Constitution of North Carolina places this power of appointment in the Governor. We believe the resolution of this question depends to a large extent on the interpretation of Article III, Sec. 5 (8) of the Constitution of North Carolina which provides:
Appointments. The Governor shall nominate and by and with the advice and consent of the majority of the Senators appoint all officers whose appointments are not otherwise provided for.
In interpreting a constitution, as in interpreting a statute, if the meaning is clear from reading the words of the Constitution, we should not search for a meaning elsewhere. Elliott v. Gardner, 203 N.C. 749, 166 S.E. 918 (1932) and Reade v. Durham, 173 N.C. 668, 92 S.E. 712 (1917).
As we read Article III, Sec. 5 (8), it is clear that it means the Governor has the power to appoint an officer of the State with the advice and consent of a majority of the Senators, unless there is some other provision for the appointment. In this case there is another provision. The General Assembly has provided for the appointment of the Director of the Office of Administrative Hearings by the Chief Justice of the Supreme Court of North Carolina. We hold that the plain meaning of Article III, Sec. 5 (8) does not give the Governor the appointment power under these circumstances.
The appellant argues that the phrase "whose appointments are not otherwise provided for" has a settled judicial construction which is "whose appointments are not otherwise provided for by the Constitution itself." The power to appoint the Director of the Office of Administrative Hearings is not provided for in the Constitution. The appellant says that for this reason only the Governor may appoint the Director of the Office of Administrative Hearings. The appellant relies on 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 of North Carolina ex rel. Cloud v. Wilson, 72 N.C. 155 (1875), for this proposition. There is language to this effect in these cases, however, the language is not necessary to the holding in any of them. In Salisbury, while holding that the plaintiff was not the rightful holder of the office of Director of the State Hospital because his appointment had not been confirmed by the Senate as required by statute, the Court said that under the Constitution of 1868 "the term, `unless otherwise provided for' meant unless otherwise provided for by the Constitution itself." The Court pointed out that this interpretation was not satisfactory to the people of the state and this provision of the Constitution was amended in 1875. In Ewart, the Court used this same language in discussing the Constitution of 1868, but said this provision of the Constitution had been amended in 1875. Cloud deals with the appointment by the Governor of a superior court judge under the Constitution of 1868. This Court said "the words `otherwise provided for' meant otherwise provided for by the Constitution," but the Court was interpreting a provision of the 1868 Constitution which is not a predecessor provision to the provision at issue in this case. We cannot say that the phrase "whose appointments are not otherwise provided for" has such a well settled judicial construction that we must use it in this case.
If we study the development of the present Article III, Sec. 5 (8), we believe it strengthens our interpretation of it. Article III, Sec. 10 of the Constitution of 1868 said:
. . . 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.
It is apparent that this section of the 1868 Constitution gave the Governor a broad power to make appointments. The General Assembly was forbidden from making appointments. In 1875 this section was amended radically to strike the clauses "or which shall be created by law" and "and no such officer shall be appointed by the General Assembly" so that the section read as follows:
. . . 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.
It is apparent that this amended section greatly diminished the Governor's appointment power. It limited the Governor's appointment power to offices established by the Constitution and even then he could not make such appointments if the appointments were otherwise provided for. In 1970 this section was again amended and became the present Article III, Sec. 5 (8) of the Constitution. The amendment deleted the word "elect" and the clause "whose offices are established by this Constitution" so that the section now reads as set forth above. If the revisers of the Constitution had intended to give the Governor the power to appoint all officers whose appointments were not provided for in the Constitution, they could have easily done so. They did not and we believe 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.
The appellant also contends the statute violates Article I, Sec. 6 of the Constitution of North Carolina which says:
The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
The appellant further contends the statute violates Article III, Sec. 1 which says:
The executive power of the State shall be vested in the Governor.
The appellant argues that in our state government we have a separation of powers and relies on the writings of some of our founding fathers and others to say that this is one of the bedrocks of our liberty. He relies on Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), which held that the General Assembly cannot constitutionally create an administrative agency of the executive branch and retain some control over it by appointing legislators to the governing body of the agency. He argues that this principle should extend to prevent legislative control over an executive officer by providing for his appointment by one other than the Governor.
Wallace dealt with an appointment of legislators to the Environmental Management Commission. This Court held that it violated the separation of powers provision of the State Constitution for the General Assembly to appoint its own members to an agency of the executive branch. It does not hold that only the Governor may make appointments to the Commission. Wallace is not authority for this case.
We have determined that under Article III, Sec. 5 (8) of the Constitution, the General Assembly may provide that someone other than the Governor may appoint the Director of the Office of Administrative Hearings. The question remains as to whether the General Assembly may provide that the Chief Justice of the Supreme Court may make this appointment. The dissent in this case says that the General Assembly may not so provide. This conclusion in the dissent is based on Article I, Sec. 6 of the Constitution, which provides for the separation of powers. The dissent goes to great lengths to prove that the Director of the Office of Administrative Hearings is in the executive branch and concludes that the appointment of the Director may not be made by the Chief Justice. We do not believe it is necessary to resolve this case to determine whether the Director is in the executive branch. Assuming that he is and assuming that Article I, Sec. 6 proscribes the Chief Justice from exercising an executive branch function, the question is whether the appointment of the Director is the exercise of executive power.
We hold that the appointment of a Director of the Office of Administrative Hearings is not an exercise of executive power. The dissent says, "The appointment power is not exclusively legislative in nature and may be delegated." We conclude from this sentence that the dissent does not believe the appointment power is necessarily executive in nature. Article III, Sec. 1 of the Constitution provides that "The executive power shall be vested in the Governor" but it does not define executive power. We believe it means "the power of executing laws." See Advisory Opinion In re Separation of Powers, 305 N.C. 767, 774, 295 S.E.2d 589, 593 (1982). The appointment of someone to execute the laws does not require the appointing party to execute the laws. Article III, Sec. 5 of the Constitution lists the duties of the Governor. Subsection (4) of this section provides that "The Governor shall take care that the laws be faithfully executed." Subsection (8) provides for the appointment power of the Governor. This indicates that the appointment power is not the same as taking care that the laws are executed. We hold that it is not a violation of the separation of powers provision of our Constitution for the General Assembly to provide that the Chief Justice of the Supreme Court shall appoint the Director of the Office of Administrative Hearings.
The citizens of this state have the right to distribute the governmental power among the various branches of the government, Lanier v. Vines, 274 N.C. 486, 164 S.E.2d 161 (1968), and we do not understand that the appellant contends otherwise. The United States Constitution does not limit this power. See Hughes v. Superior Court of California, 339 U.S. 460, 94 L.Ed. 985 (1950) and Colegrove v. Green, 328 U.S. 549, 90 L.Ed. 1432 (1946). In this case, we hold that the people have, by the Constitution of North Carolina, authorized the General Assembly to place appointment power in someone other than the Governor. The General Assembly has placed this appointment power in the Chief Justice of the Supreme Court of North Carolina. The Constitution of North Carolina and the Constitution of the United States do not prohibit this.
The judgment of the superior court is
Affirmed.
Chief Justice EXUM did not participate in the consideration or decision of this case.