State Ex Rel. Martin v. Melott

Justice MEYER

concurring in result.

As Martin, J., states in his dissent in this case, the dispositive issue here is whether such a legislative delegation of appointment power violates the constitutional principles of separation of powers. The dissent makes a good case for the proposition that this legislative delegation of appointment power to the Chief Justice is unwise. It does not convince me that such delegation is unconstitutional.

*525The scope of judicial review of challenges to the constitutionality of legislation enacted by the General Assembly is well settled. As this Court stated in Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781 (1936):

It is well settled in this State that the courts have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional — but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.

Id. at 529-30, 187 S.E. at 784.

I agree with the majority that the legislature can constitutionally delegate to the Chief Justice the power to appoint the Director of the Office of Administrative Hearings. I write separately because of my belief that the analysis employed by the majority in reaching this result is flawed.

The majority reasons that the separation of powers issue turns on the nature of the Chief Justice’s appointment of the Director as an exercise of executive power granted to the Governor in our constitution. My reasoning, however, dictates that the determination of the separation of powers issue turns, not on the nature of the appointment power, but on the nature of the powers and duties exercised by the person appointed. If the nature of the powers and duties to be exercised by the appointee are primarily executive in nature, the separation of powers provision of our constitution is violated. If they are primarily judicial in nature, the separation of powers provision is not violated.

In State ex rel. Wallace v. Bone and Barkalow v. Harrington, 304 N.C. 591, 286 S.E. 2d 79 (1982), plaintiff sued two members of the North Carolina House of Representatives, challenging the constitutionality of their appointment as members of the North Carolina Environmental Management Commission (EMC). In holding their appointment to the Commission to be an unconstitutional violation of separation of powers, our Court stated: “It is crystal clear to us 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 608, 286 S.E. 2d at 88.

*526N.C.G.S. § 7A-752 specifically provides that the Chief Justice of the North Carolina Supreme Court shall appoint the Director of the Office of Administrative Hearings for the State of North Carolina. N.C.G.S. § 7A-752 (1986).

The dissent concedes that the role played by the Director of the Office of Administrative Hearings is “quasi-judicial.” In fact, contrary to what is stated in the dissenting opinion, it is predominantly judicial. Of the Director’s twelve statutory powers and duties, two comprise the bulk of his activity. First, he is the chief administrative law judge in the State of North Carolina. N.C.G.S. § 7A-751 (1986). Second, as such, he may hear testimony, apply rules of evidence, regulate discovery, issue stays, and make findings of fact and conclusions of law. N.C.G.S. § 150B-33 (Cum. Supp. 1985). These judicial functions are the heart of his job and far outweigh the administrative- or executive-type powers and duties also provided for in the statute. Because I find that the statutory powers and duties of the Director of the Office of Administrative Hearings are primarily judicial in nature, I do not find that the delegation to the Chief Justice of the power to appoint him violates the separation of powers.

The majority’s reasoning requires that whenever a question of this nature arises, a labeling of the delegated appointment power as legislative, executive, or judicial be made. This unnecessarily creates a continuing possibility of conflict between sections of our state constitution. This is contrary to our longstanding policy that, in the construction of the North Carolina Constitution, all cognate provisions are to be considered and construed together. Thomas v. Board of Elections, 256 N.C. 401, 124 S.E. 2d 164 (1962). The reasoning I adopt herein is consistent with this traditional policy in that it allows potentially conflicting constitutional provisions to be construed as valid.

While I agree with the dissent that the delegation here is unwise, it is not the role of this Court to pass judgment on the wisdom and expediency of a statute. As this Court has recognized:

The members of the General Assembly are representatives of the people. The wisdom and expediency of a statute are for the legislative department, when acting entirely within constitutional limits. The courts will not disturb an act *527of the law-making body unless it runs counter to a constitutional limitation or prohibition.

McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E. 2d 888, 891-92 (1961).

The presumption is that an act passed by the Legislature is constitutional, and it must be so held by the courts unless it appears to be in conflict with some constitutional provision. The legislative department is the judge, within reasonable limits, of what the public welfare requires, and the wisdom of its enactments is not the concern of the courts. As to whether an act is good or bad law, wise or unwise, is a question for the Legislature and not for the courts —it is a political question. The mere expediency of legislation is a matter for the Legislature, when it is acting entirely within constitutional limitations, but whether it is so acting is a matter for the courts.

State v. Warren, 252 N.C. 690, 696, 114 S.E. 2d 660, 666 (1960) (citations omitted).

I do not mean to say that, under different circumstances, the principles of separation of powers would not render similar legislation unconstitutional. On the contrary, North Carolina, for more than two hundred years, has strictly adhered to these vital principles. Their importance to our system of government is fundamental and unquestioned. As the United States Supreme Court stated in O’Donoghue v. United States, 289 U.S. 516, 77 L.Ed. 1356 (1933):

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, [72 L.Ed. 845, 849 (1928),] namely, to preclude a commingling of these essentially different powers of government in the same hands.

Id. at 530, 77 L.Ed. at 1360. Where the legislature passes a statute which creates such commingling, this Court will not hesitate to hold that the statute violates the separation of powers provision of our state constitution.

*528In sum, I agree with the majority that the legislature can constitutionally delegate to the Chief Justice of the North Carolina Supreme Court the power to appoint the Director of the Office of Administrative Hearings; however, I do so for reasons different than those relied upon by the majority.

Justice WHICHARD joins in this concurring opinion.