The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
History Note. - The provisions of this section are similar to those of Art. I, § 8, Const. 1868.
Legal Periodicals. - For note on judicial review and separation of powers, see 45 N.C.L. Rev. 467 (1967).
For case law survey as to separation of powers, see 45 N.C.L. Rev. 891 (1967).
For note analyzing possible constitutional barriers to judicial abrogation of contractual governmental immunity, see 12 Wake Forest L. Rev. 1082 (1976).
For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).
For comment on sectarian education and the state, see 1980 Duke L.J. 801.
For article, "A Powerless Judiciary? The North Carolina Courts' Perceptions of Review of Administrative Action," see 12 N.C. Cent. L.J. 21 (1980).
For survey of 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).
For article discussing limitations on ad hoc adjudicatory rulemaking by an administrative agency, see 61 N.C.L. Rev. 67 (1982).
For survey of 1982 law relating to constitutional law, see 61 N.C.L. Rev. 1052 (1983).
For discussion of separation of powers in North Carolina, see 62 N.C.L. Rev. 1 (1983).
For article on the "Battle Among the Branches: The Two Hundred Year War," see 65 N.C.L. Rev. 901 (1987).
For note on the separation of powers and the power to appoint, see 66 N.C.L. Rev. 1109 (1988).
For note, "The Forty-Two Hundred Dollar Question: 'May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?'," see 68 N.C.L. Rev. 1035 (1990).
For comment, "Legal Analysis of the Constitutionality of the Water Supply Watershed Protection Act of 1989 and the Hyde Bill," see 29 Wake Forest L. Rev. 1279 (1994).
For article, "A Study in Separation of Powers: Executive Power in North Carolina," see 77 N.C.L. Rev. 2049 (1999).
CASE NOTES
I. In General.
II. Delegation of Legislative Power.
I. IN GENERAL.
Editor's Note. - Some of the cases cited below were decided under former Art. I, § 8, Const. 1868.
Principle Stated. - This section embodies succinctly the judgment of the people of North Carolina in regard to the principle of the separation of powers. Long v. Watts, 183 N.C. 99, 110 S.E. 765, 22 A.L.R. 277 (1922).
The principle of separation of powers was clearly in the minds of the framers of the 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. In re Powers, 295 S.E.2d 589 (N.C. 1982).
Functions Separate. - Each of the coordinate departments has its appropriate functions, and one cannot control the action of the other in the sphere of its constitutional power and duty. State v. Holden, 64 N.C. 829 (1870); Person v. Board of State Tax Comm'rs, 184 N.C. 499, 115 S.E. 336 (1922).
Classification of Departments Is Not Exact. - Although the State is firmly committed to the doctrine of separation of powers, the classification cannot be very exact, and there are many officers whose duties cannot be exclusively arranged under the duties of either of the judicial, legislative or executive heads. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
The independence of the Supreme Court only, and not of the entire judicial department, is provided for by this section. But there is nothing which gives the Supreme Court supervisory control over the legislature. Walser ex rel. Wilson v. Jordan, 124 N.C. 683, 33 S.E. 139 (1899).
Constitution Shields Judicial Branch from Legislative Interference So Far as Its Inherent Rights and Powers. - Pursuant to N.C. Const., Art. I, § 6 and N.C. Const., Art. IV, § 1, the North Carolina Constitution shields the judicial branch from legislative interference, so far at least as its inherent rights and powers are concerned. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).
Court Practice Regulated by Judiciary. - Under the Constitution, as the supreme judicial power is independent of the other departments, the legislature cannot prescribe rules of practice for the Supreme Court; nevertheless, the courts have copied, almost verbatim, the provisions of the Code. Herndon v. Imperial Fire Ins. Co., 111 N.C. 384, 16 S.E. 465 (1892); Bird v. Gilliam, 125 N.C. 76, 34 S.E. 196 (1899).
Where there is conflict between the rules of practice prescribed by the legislature and the rules made by the Supreme Court, the rules made by the court will be observed. Cooper v. Board of Comm'rs, 184 N.C. 615, 113 S.E. 569 (1922).
The Supreme Court has the sole right to prescribe rules of practice and procedure therein. Lee v. Baird, 146 N.C. 361, 59 S.E. 876 (1907); State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).
The rules prescribed by the Supreme Court to regulate its own procedure, including the rule as to dismissing an appeal thereto if not docketed, or a recordari prayed for in apt time, will be strictly enforced. Being under the exclusive authority therein given to the Supreme Court by this section, a statute in conflict therewith will not be observed. State v. Ward, 184 N.C. 618, 113 S.E. 775 (1922).
Legislative Change of Court Jurisdiction. - The principle that when the jurisdiction of a particular court is constitutionally defined the legislature cannot by statute restrict or enlarge that jurisdiction unless it is authorized to do so by the Constitution is grounded on the separation of powers provisions found in many American Constitutions, including the Constitution of this State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
When the jurisdiction of a particular court is constitutionally defined, the legislature cannot by statute restrict or enlarge that jurisdiction unless it is authorized to do so by the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The General Assembly is without authority to expand the appellate jurisdiction of the Supreme Court beyond the limits set in the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The General Assembly has no authority to provide for appeal from decisions of administrative agencies to the Supreme Court without prior appeal to and review by a lower court. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The Supreme Court has no original jurisdiction over claims against the State, and the General Assembly has no authority to confer such jurisdiction upon it. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).
The legislature may constitutionally provide for a "de novo" review of the quasi-judicial decision of an agency; therefore, review of a civil service board's decision by the superior court under the "de novo" standard did not violate this section nor impermissibly allow the judicial branch to substitute its judgment for that of the city manager on a personnel matter where the question before the superior court was not whether the employee should have been terminated rather than demoted, suspended, or transferred, but whether the action of the employee's supervisor was "justified." Jacobs v. City of Asheville, 137 N.C. App. 441, 528 S.E.2d 905 (2000).
Judicial power cannot be exercised in aid of an unfinished and inoperative act, so left upon the final adjournment, any more than in obstructing legislative action. State ex rel. Scarborough v. Robinson, 81 N.C. 409 (1879).
Under the separation of powers doctrine, the legislative, executive, and supreme judicial powers of the state government were separate and distinct from each other; where hog farming companies' lagoon waste management systems existed pursuant to express legislative authority, the trial court properly declined to enjoin the operation as a nuisance. Neuse River Found. v. Smithfield Foods, Inc., 155 N.C. App. 110, 574 S.E.2d 48 (2002), cert. denied, 356 N.C. 675, 577 S.E.2d 628 (2003).
Court's Proper Exercise of Jurisdiction. - There is no violation of the Separation of Powers Clause when a court issues an order within its inherent power to do what is reasonably necessary within the scope of its constitutional and statutory jurisdiction. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).
There was no violation of the Separation of Powers Clause when the district court, exercising its exclusive, original jurisdiction, issued the order for a juvenile sex offender's commitment and the order denying the juvenile's conditional release as requested by Division of Youth Services, both of which included dispositional directives regarding the juvenile's needs for specialized sexual offender treatment. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).
Subject matter jurisdiction existed over the question of whether the Governor was required to release certain records relating to applications for clemency pursuant to the North Carolina Public Records Law because resolving the relevant issues required the court to exercise its fundamental responsibility to determine the proper meaning of N.C. Const., Art. III, § 5(6); the case did not raise a political question by requiring the court to intrude upon the Governor's clemency powers, but only required the court to identify where to draw the line between the Executive Branch and the Legislature with respect to clemency, given the separation of powers doctrine. News & Observer Publ'g Co. v. Easley, - N.C. App. - , 641 S.E.2d 698 (2007).
Redistricting. - G.S. 120-2.3 and G.S. 120-2.4 are not unconstitutional limitations on the judicial branch, as they allow the General Assembly to exercise its proper responsibilities and they decrease the risk that the courts will encroach upon the responsibilities of the legislative branch, pursuant to N.C. Const., Art. I, § 6. Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004).
Punitive Damages Cap. - G.S. 1D-25, which places a cap on punitive damages, did not unconstitutionally violate the principle of separation of powers by exercising the power of remittitur, because the cap on punitive damages is different from remittitur, in that it requires an award to be limited after a proper jury trial, while remittitur, under G.S. 1A-1, Rule 59, allows a new trial for excessive damages awarded under the influence of passion or prejudice. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).
G.S. 1D-25 does not operate as a "legislative remittitur" because, unlike remittitur, G.S. 1D-25 does not grant the General Assembly the authority to remit excessive awards on a case-by-case basis, but rather, by enacting G.S. 1D-25, the General Assembly has imposed a limit on the recovery of punitive damages in all cases; this function is wholly distinct from that within the trial court's authority to apply fixed laws to individual controversies, and thus, G.S. 1D-25 did not violate separation of powers principles under N.C. Const., Art. I, § 6. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).
G.S. 1D-25 does not represent an impermissible interference with the judiciary's constitutionally defined authority because the Constitution neither expressly nor implicitly empowers North Carolina courts to award punitive damages or to remit excessive awards thereof; rather, because punitive damages are awarded on grounds of public policy, G.S. 1D-25 is a modification of the common law within the General Assembly's policy-making authority to define legally cognizable remedies. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).
The propriety of ordering sales of lands upon petition of the owner is purely a judicial duty, and any private act of the General Assembly attempting to regulate the same is void under this section. Miller v. Alexander, 122 N.C. 718, 30 S.E. 125 (1898).
Judicial Function in Criminal Cases. - The function of the court in regard to the punishment of crimes is to determine the guilt or innocence of the accused, and if that determination is one of guilt, then to pronounce the punishment or penalty prescribed by law. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
Authority of District Attorney to Enhance Legislatively Prescribed Punishment Upheld. - The habitual felon provisions of G.S. 14-7.1 et seq., the Habitual Felon Act, do not violate this section. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865 (2000), cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000).
Amendment of Judicially Imposed Criminal Sentences by Corrections Department. - The legislative, executive, and supreme judicial powers of the State government are separate and distinct from each other; therefore, by independently amending sentences imposed by trial courts to reflect compliance with its interpretation of statutory authority, the Corrections Department usurped the power of the judiciary and violated the separation of powers doctrine. Hamilton v. Freeman, 147 N.C. App. 195, 554 S.E.2d 856 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 802 (2002).
Even though superior court's order of consecutive sentencing was contrary to law, the Department of Corrections could not alter that order by refusing to change defendant's records to reflect concurrent sentencing without violating the separation of powers doctrine under N.C. Const., Art. I, § 6; the order was entered under the superior court's exclusive, original jurisdiction over all criminal actions under G.S. 7A-271(a), and was therefore a voidable, not a void, judgment, and the Department, as a part of the executive branch, was bound to honor the judgment until it was corrected or vacated. State v. Ellis, 167 N.C. App. 276, 605 S.E.2d 168 (2004), rev'd 361 N.C. 200, 639 S.E.2d 425 (2007) (remanded to allow defendant to withdraw his guilty plea).
Manner and Mitigation of Punishment Are Legislative Functions. - The manner of executing a sentence and the mitigation of punishment are determined by the legislative department, and what the legislature has determined in that regard must be put in force and effect by administrative officers. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
Habitual Offender Act Not Violative of Separation of Powers Clause. - Defendant's constitutional challenges to his sentence as an habitual felon failed because (1) the North Carolina Habitual Felon Act was not violative of the Separation of Powers Clause; (2) there was no double jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the North Carolina Structured Sentencing Act; and (3) the state appellate court and the state supreme court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).
Legislature May Establish Parole System. - In the division of governmental authority, the legislature has exclusive power to determine the penological system of the State. It alone can prescribe the punishment for crime. It may therefore establish a parole system. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
The granting, withholding or frustration of the parole power is not and has never been a responsibility of the judicial branch of government. State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975).
And Administration of Parole System May Be Delegated. - The granting of parole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the legislature to nonjudicial agencies. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
The sentencing process may not be expressly employed to thwart the parole process, the responsibility for which is vested in another branch of government. State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975).
Removal of Officeholder. - It is competent for the legislature in creating an office, other than purely judicial, to reserve to itself the right to remove, or to the Governor to suspend, the incumbent of the office. State ex rel. Caldwell v. Wilson, 121 N.C. 425, 121 N.C. 480, 28 S.E. 554 (1897).
Issuance of a warrant, whether considered a judicial act, a quasi-judicial act, a judicial function, or a ministerial act, does not require or involve the exercise of supreme judicial power within the meaning of this section. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).
A solicitor has no authority to administer an oath or to issue a warrant, absent authorization by the General Assembly. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).
Public-local law authorizing solicitor of recorder's court to issue warrants is not violative of this section. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).
Creation of Board with Quasi-Judicial and Administrative Functions. - The creation by the legislature of a board or municipal corporation and the conferring upon such board or municipal corporation of quasi-judicial and administrative functions does not violate this provision. Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940).
This section requires the North Carolina Department of Human Resources (NCDHR) to acquiesce in statutory interpretations made by North Carolina's appellate courts to the extent that they conflict with the NCDHR's interpretations. Thomas v. North Carolina Dep't of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff'd, 346 N.C. 268, 485 S.E.2d 295 (1997).
The North Carolina Department of Human Resources and other administrative agencies of the State must give full effect to the statutory constructions of the Court of Appeals both as to the named litigants and as to all persons similarly situated. Thomas v. North Carolina Dep't of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff'd, 346 N.C. 268, 485 S.E.2d 295 (1997).
Appointment of Director of Office of Administrative Hearings. - It is not a violation of the separation of powers provision of the 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. State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987).
Indigent Defense Services Act and the Office of Indigent Defense Services did not violate the state constitution's separation of powers principles; appointing and compensating attorneys for indigent criminals was not committed to any one state government branch. Ivarsson v. Office of Indigent Def. Servs., 156 N.C. App. 628, 577 S.E.2d 650 (2003), cert. denied, 357 N.C. 250, 582 S.E.2d 269 (2003).
The order of the Supreme Court establishing the Client Security Fund and requiring annual payments by attorneys to the Fund was an essential corollary to the court's function, was required for the proper administration of justice, and did not violate the Constitution. Beard v. North Carolina State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987).
Power of County to Apply Formula for Ascertaining Taxable Property. - Where county ascertained the amount of personal property of defendant nonresident corporation having a "business situs" in this State and liable for taxation as solvent credits by the county by ascertaining the total assets of the defendant and the percentage of such assets found in the county, and allowing the same percent of its total liabilities to be deducted therefrom, defendant, who complained that county had made its own rule in ascertaining the solvent credits in the county subject to taxation in violation of this section, but failed to list its solvent credits for taxation as required by law, was not prejudiced by the assessment of its personal property for taxation as determined by the county. County of Mecklenburg v. Sterchi Bros. Stores, 210 N.C. 79, 185 S.E. 454 (1936).
Division of Motor Vehicle's Action Violated Separation of Powers Doctrine. - North Carolina Division of Motor Vehicles violated the separation of powers clause in the North Carolina Constitution and violated a driver's right to due process when it unilaterally voided a district court ordered limited driving privilege to a driver; furthermore, by allowing the North Carolina Division of Motor Vehicles to, in essence, invalidate a properly entered court order, G.S. 20-179.3(k) violates the provisions requiring separation of powers contained in N.C. Const., Art. I, § 6; N.C. Const., Art. IV, § 1; and N.C. Const., Art. IV, § 3. State v. Bowes, 159 N.C. App. 18, 583 S.E.2d 294 (2003), cert. denied, 358 N.C. 156, 592 S.E.2d 698 (2004).
Road Closure Appeal Procedure not Unconstitutional. - G.S. 160A-299(b) did not deprive a home owner of his right to a fair hearing or violate the Separation of Powers Clause of the North Carolina Constitution in his appeal from a town council order closing a road because he had the opportunity to test, rebut, and explain evidence presented to the council at three public hearings held on the road closure over a two-month period; these hearings were the proper place for him to present evidence and to rebut any evidence contrary to his position. Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006).
Applied in State ex rel. Utils. Comm'n v. Nantahala Power & Light Co., 65 N.C. App. 198, 309 S.E.2d 473 (1983); State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989); News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992); State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982); Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).
Cited in Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 30 N.C. App. 427, 227 S.E.2d 603 (1976); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 292 N.C. 1, 231 S.E.2d 867 (1977); In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979); Reed v. Byrd, 41 N.C. App. 625, 255 S.E.2d 606 (1979); State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); State v. Rogers, 52 N.C. App. 676, 279 S.E.2d 881 (1981); Granville County Bd. of Comm'rs v. North Carolina Hazardous Waste Mgt. Comm'n, 329 N.C. 615, 407 S.E.2d 785 (1991); State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997); State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001); State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001), cert. denied and appeal dismissed, 354 N.C. 576, 559 S.E.2d 186 (2001), cert. denied, 535 U.S. 1102, 122 S. Ct. 2305, 152 L. Ed. 2d 1061 (2002).
II. DELEGATION OF LEGISLATIVE POWER.
In General. - The legislature may not abdicate its power to make laws nor delegate its supreme legislative power to any other coordinate branch or to any agency which it may create. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
The effect of this section and N.C. Const., Art. II, § 1 is to elucidate the circumstances in which delegation of legislative powers is permissible. Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d 726 (1980).
Delegation to Municipalities. - Ordinary restrictions with respect to the delegation of power to an agency of the State, which exercises no function of government, do not apply to cities, towns or counties. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).
Delegation to Administrative Bodies. - As to some specific subject matter, the legislature may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).
A modern legislature must be able to delegate, in proper instances, a limited portion of its legislative powers to administrative bodies which are equipped to adapt legislation to complex conditions involving numerous details with which the legislature cannot deal directly. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
The principle that the General Assembly may not delegate its power to any other department or body, is not absolute. Since legislation must often be adapted to complex conditions involving numerous details with which the legislature cannot deal directly, the constitutional prohibition against delegating legislative authority does not deny to the legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the legislature shall apply. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).
Necessity for Adequate Standards When Delegating Power. - As to some specific subject matter, the legislature may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).
The constitutional inhibition against delegating legislative authority does not preclude the legislature from transferring adjudicative and rule-making powers to administrative bodies, provided such transfers are accompanied by adequate guiding standards to govern the exercise of the delegated powers. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
When there is an obvious need for expertise in the achievement of legislative goals, the General Assembly is not required to lay down a detailed agenda covering every conceivable problem which might arise in the implementation of the legislation. It is enough if general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
The test of constitutional delegation of legislative power is whether the delegation is accompanied by adequate guiding standards; if so, the delegation will be upheld. In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).
The General Assembly must prescribe the standard for an administrative board with sufficient definiteness so that the board is bound by legislative policy and cannot, under the name of finding facts, actually set policy. Farlow v. North Carolina State Bd. of Chiropractic Exmrs., 76 N.C. App. 202, 332 S.E.2d 696, cert. denied and appeal dismissed, 314 N.C. 664, 336 S.E.2d 621 (1985).
Purpose of Adequate Guiding Standards Test. - The purpose of the adequate guiding standards test is to reconcile the legislative need to delegate authority with the constitutional mandate that the legislature retain in its own hands the supreme legislative power. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978). See also, In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).
Application of Test. - The key to an intelligent application of the adequate guiding standards test is an understanding that, while delegations of power to administrative agencies are necessary, such transfers of power should be closely monitored to insure that the decision making by the agency is not arbitrary and unreasoned and that the agency is not asked to make important policy choices which might just as easily be made by the elected representatives in the legislature. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
Specificity of Legislative Goals. - Goals and policies set forth by legislature for an agency to apply in exercising its powers need be only as specific as the circumstances permit. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978); In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).
Procedural Safeguards. - In determining whether a particular delegation of authority is supported by adequate guiding standards, it is permissible to consider whether the authority vested in the agency is subject to procedural safeguards. A key purpose of the adequate guiding standards test is to insure that the decision making by the agency is not arbitrary and unreasoned. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978). See also, In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).
Procedural safeguards tend to encourage adherence to legislative standards by the agency to which power has been delegated. The presence or absence of procedural safeguards is relevant to the broader question of whether a delegation of authority is accompanied by adequate guiding standards. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
Delegation of Power Upheld. - Creation of the Mattamuskeet Drainage District by the legislature is not violative of the Constitution. O'Neal v. Mann, 193 N.C. 153, 136 S.E. 379 (1927).
Statute authorizing the Industrial Commission to award compensation for bodily disfigurement is not unconstitutional as a void delegation of legislative power in contravention of this section. Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621 (1939).
The North Carolina Turnpike Authority Act, former G.S. 136-89.59 to 136-89.77, did not violate this section. North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965).
Chapter 1177 of Session Laws 1967 (G.S. 116-209.1 et seq.), which authorizes the State Education Assistance Authority to issue revenue bonds and to use the proceeds therefrom for the making of loans to "residents of this State to enable them to obtain an education in an eligible institution" as set forth in G.S. 116-209.2, when supplemented by federal legislation, provides sufficient legislative standards whereby the Authority can determine to which students the loans should be made, since it is implicit in c. 1177 that all loans made from the bond proceeds shall be made in compliance with the standards of federal legislation which supplement the loan program of the Authority. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).
Former G.S. 148-62, insofar as it granted discretionary power to the Board of Paroles (now the Parole Commission), did not constitute an assignment of judicial power in contravention of N.C. Const., Art. IV, § 1 and this section. Jernigan v. State, 10 N.C. App. 562, 179 S.E.2d 788, aff'd, 279 N.C. 556, 184 S.E.2d 259 (1971).
Petitioner's contention that the legislature had provided no standards to guide the Board of Paroles (now the Parole Commission) in determining whether a parole violator should serve his original sentence concurrently with his new sentence or at the completion of it and that this failure nullified the purported grant of authority under former G.S. 148-62 could not be sustained. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
In delegating to the town commissioners the discretionary right to decide whether to enlarge the corporate limits as specified in a special act, Session Laws 1971, c. 801, the General Assembly did not delegate legislative authority in violation of N.C. Const., Art. II, § 1, or this section. In authorizing the annexation, the General Assembly determined that the annexation was suitable and proper. Except for approval by the town's board of commissioners, the act was complete in every respect at the time of its ratification. The only discretion given the commissioners was to decide whether or not to annex the territory specified in the act. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).
The Coastal Area Management Act of 1974 (G.S. 113A-100 et seq.) properly delegates authority to the Coastal Resources Commission to develop, adopt and amend State guidelines for the coastal area. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).
The delegation of authority to the North Carolina Department of Transportation and the Board of Transportation to plan and construct an interstate highway did not constitute an unlawful delegation of legislative authority to an administrative body which was unrestrained by legislative standards or sufficient procedural safeguards or political accountability in violation of this section and N.C. Const., Art. II, § 1. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890 (1980).
G.S. 113-229(e)(2), which permits the review commission to deny an application for a permit to dredge or fill in estuarine waters upon finding "that there will be significant adverse effect on the value and enjoyment of the property of riparian owners," does not constitute an unlawful delegation of legislative power in violation of this section, as adequate statutory guidelines and procedural safeguards have been provided. In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).
The proscription of "unethical conduct" in G.S. 90-154 is a sufficiently definite standard so that the Board of Chiropractic Examiners may set policies within it without exercising a legislative function. Farlow v. North Carolina State Bd. of Chiropractic Exmrs., 76 N.C. App. 202, 332 S.E.2d 696, cert. denied and appeal dismissed, 314 N.C. 664, 336 S.E.2d 621 (1985).
This section does not unconstitutionally delegate legislative power, where the statute authorizes the Board of Law Examiners to make rules governing admission to the bar to "promote the welfare of the State and the profession," and a person who was not allowed to take the bar exam because her law school was not ABA accredited contended that the Board was not given adequate standards to guide its actions. Bring v. North Carolina State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998).
Commissioner's promulgation of 11 N.C.A.C. 12.0319, prohibiting subrogation provisions in life or accident and health insurance contracts, supported by G.S. 58-2-40 (right to limit practices injurious to the public) and G.S. 58-50-15(a) (prohibiting provisions less favorable to the insured), did not exceed his statutory authority, even though it may change state substantive law, and did not amount to an unconstitutional delegation of legislative powers, because statutory provisions (G.S. 58-2-40, 58-51-15, and 58-50-15) and judicial review (available under G.S. 150B, et seq.) offer adequate procedural safeguards and support the delegation of power to the Commissioner. In re Ruling by N. C. Comm'r of Ins., 134 N.C. App. 22, 517 S.E.2d 134 (1999), cert. denied, appeal dismissed, 351 N.C. 105, 540 S.E.2d 356 (1999).
Opinions of Attorney General
Delay of Rules by Review Commission. - An act vesting in the Administrative Rules Review Commission (ARRC), a commission appointed by the General Assembly, the power to delay indefinitely the effective date of duly adopted agency rules which it deems in excess of statutory authority would likely be held to violate this section by vesting the ARRC with judicial powers reserved to the court and with supreme legislative powers reserved to the General Assembly. See opinion of Attorney General to Henson P. Barnes, President Pro Tempore, Senate, 60 N.C.A.G. 70 (1991).
Legislators Precluded from Serving on the Board of North Carolina Partnership for Children, Inc. - This section precludes legislators from serving as members of a private, non-profit corporation where the corporation is "a special instrumentality of government" created to implement specific legislation. See opinion of Attorney General to The Honorable John R. Gamble, Jr., N.C. House of Representatives, 1998 N.C.A.G. 34 (7/30/98).