THE NEWS AND OBSERVER PUBLISHING COMPANY, Plaintiff, v. MICHAEL
F. EASLEY, In his capacity as Governor of the State of North
Carolina, Defendant
NO. COA06-132
Filed: 6 March 2007
1. Jurisdiction–subject matter–Public Records Law–clemency records–meaning of
constitutional provision
The trial court did not err by concluding that it had subject matter jurisdiction to
determine whether defendant Governor was required to produce, under North Carolina’s Public
Records Law, records relating to applications for clemency, because: (1) the case does not
involve judicial review of the Governor’s exercise of clemency power, but instead whether
plaintiff is entitled under the Public Records Law to certain clemency records within the
possession of the Governor; (2) the issues of this case can only be resolved by construing the
meaning of the constitutional provision granting the clemency power to the Governor, N.C.
Const. art. III, § 5(6); and (3) it is a fundamental responsibility of the courts to determine how
the constitution should be construed.
2. Governor; Public Records–clemency records–Public Records Law inapplicable
The trial court did not err by dismissing plaintiff’s lawsuit under N.C.G.S. § 1A-1, Rule
12(b)(6) and by refusing to require defendant Governor to produce, under North Carolina’s
Public Records Law, N.C.G.S. §§ 132-1 through 132-10, records relating to applications for
clemency, because: (1) N.C. Const. art. III, § 5(6) carves out a limited area in which the General
Assembly may exercise its authority as to clemency relative to the manner of applying for
pardons, and all other clemency authority rests with the Governor; (2) legislation such as the
Public Records Law, which does not specifically reference clemency, cannot be allowed to
intrude upon the Governor’s clemency authority; and (3) although the Governor’s counsel urged
the Court of Appeals during oral arguments to conclude that N.C.G.S. § 147-16(a)(1) is
unconstitutional, a constitutional question will not be addressed unless it was raised and passed
upon in the court below.
Appeal by plaintiff and defendant from order entered 24
October 2005 by Judge Evelyn W. Hill in Wake County Superior Court.
Heard in the Court of Appeals 23 August 2006.
Everett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C.
Amanda Martin, for plaintiff.
Attorney General Roy Cooper, by Legal Counsel to Governor
Easley Andrew A. Vanore, Jr. and Special Deputy Attorney
General W. Dale Talbert, for defendant.
GEER, Judge.
-2-
This appeal arises out of the efforts of the News and Observer
Publishing Company (the “N&O”) to require Governor Michael F.
Easley to produce, under North Carolina’s Public Records Law, N.C.
Gen. Stat. §§ 132-1 through 132-10 (2005), records relating to
applications for clemency. Although the Governor agreed to
voluntarily provide the N&O with certain clemency records, he
specifically declined to produce others. The superior court
dismissed the N&O’s lawsuit to obtain these records under the
Public Records Law on the grounds that it failed to state a claim
for relief. N.C.R. Civ. P. 12(b)(6). In doing so, however, the
court also denied the Governor’s motion pursuant to N.C.R. Civ. P.
12(b)(1), rejecting the Governor’s position that the N&O’s
complaint presented a non-justiciable political question. Both
parties have appealed.
Because the issues of this case can only be resolved by
construing the meaning of the constitutional provision granting the
clemency power to the Governor, N.C. Const. art. III, § 5(6), and
because it is a fundamental responsibility of the courts to
determine how the constitution should be construed, we agree with
the superior court that subject matter jurisdiction exists.
Nothing in this case requires a court to intrude upon the clemency
determinations of the Governor. Instead, we are required only to
identify where the line should be drawn, given the separation of
powers doctrine, between the Executive Branch and the Legislature
when it comes to clemency. There can be no doubt that we have the
power and the responsibility to do so.
-3-
With respect to the N&O’s request for clemency records, we
hold that N.C. Const. art. III, § 5(6) carves out a limited area in
which the General Assembly may exercise its authority as to
clemency. The constitution expressly allows the General Assembly
to enact legislation “relative to the manner of applying for
pardons.”
Id. All other clemency authority rests with the
Governor. We have further concluded that this constitutional
provision requires that the legislation specifically relate “to the
manner of applying for pardons” and, therefore, legislation such as
the Public Records Law, which does not specifically reference
clemency, cannot be allowed to intrude upon the Governor’s clemency
authority. We, therefore, uphold the trial court’s dismissal of
the N&O’s lawsuit pursuant to N.C.R. Civ. P. 12(b)(6).
________________________________
On 26 May 2005, the N&O requested the following records
received or created by Governor Easley in connection with requests
for clemency:
1. Each application for pardon received
by Governor Easley during his tenure in
office. As used herein, the term “application
for pardon” means the documents defined in
G.S. § 147-21 and all other records of any
kind constituting or reflecting expressions of
support for the application, including but not
limited to letters and records of telephone
calls to or personal conversations with the
governor.
2. The register of applications for
pardons prescribed by G.S. § 147-16(a)(1).
3. All records of any kind received by
the governor that constitute or reflect
-4-
support for or opposition to a request for
pardon, reprieve or commutation.
The Governor’s office responded that it would voluntarily make
available “(1) all applications for clemency, including the
indictment, verdict and judgment of the court, (2) the names of
those supporting the application, and (3) any document granting
clemency.” Other clemency records, described as “written
communications of support or opposition to the clemency
application,” would not, however, be provided.
On 5 July 2005, the N&O filed a complaint in Wake County
Superior Court challenging the Governor’s decision. The complaint
asserted that the requested clemency records were “public records”
under the North Carolina Public Records Law and, therefore, that
the N&O was entitled to an order compelling Governor Easley to
disclose them. The Governor moved to dismiss the N&O’s complaint
under N.C.R. Civ. P. 12(b)(1) and 12(b)(6). On 24 October 2005,
Judge Evelyn W. Hill denied Governor Easley’s motion to dismiss
under Rule 12(b)(1), but granted his motion under Rule 12(b)(6).
Both parties have timely appealed to this Court.
Discussion
[1] On appeal, Governor Easley — in arguing both the lack of
subject matter jurisdiction and the inapplicability of the Public
Records Law — relies almost entirely on
Bacon v. Lee, 353 N.C. 696,
549 S.E.2d 840,
cert. denied, 533 U.S. 975, 150 L. Ed. 2d 804, 122
S. Ct. 22 (2001). The Governor contends, citing
Bacon, that the
clemency power rests exclusively with the Governor and, therefore,
that any legislative enactment impinging upon the executive’s
-5-
clemency authority runs afoul of separation of powers principles.
According to the Governor, the trial court thus erred by failing to
dismiss the N&O’s claims for lack of subject matter jurisdiction.
In contrast, the N&O points to
News & Observer Pub. Co. v.
Poole
, 330 N.C. 465, 412 S.E.2d 7 (1992), and argues that Poole
holds that the Public Records Law never offends separation of
powers principles. According to the N&O,
Poole subjects at least
some clemency records to the Public Records Law even if clemency
authority rests only with the Governor.
Further, both parties assert various public policy arguments
in support of their respective positions. The N&O points to the
need for public understanding and oversight of the Governor’s use
of the clemency power, while the Governor emphasizes his need to
obtain candid and confidential advice both in support of and
opposition to clemency requests. These arguments, however, beg the
question: Which branch of government has the power to decide policy
with respect to questions of clemency?
See Neuse River Found.,
Inc. v. Smithfield Foods, Inc.
, 155 N.C. App. 110, 118, 574 S.E.2d
48, 54 (2002) (“It is critical for our purposes to remain focused
on North Carolina’s timeless separation of powers doctrine rather
than be distracted by public policy debate embedded in any
ephemeral issue of a case.”),
disc. review denied, 356 N.C. 675,
577 S.E.2d 628 (2003).
The question posed by this appeal is not resolved by either
Bacon
or Poole, but rather must be decided based on the language of
-6-
our constitution’s provision with respect to the clemency power.
That provision states:
Clemency
. The Governor may grant reprieves,
commutations, and pardons, after conviction,
for all offenses (except in cases of
impeachment), upon such conditions as he may
think proper, subject to regulations
prescribed by law relative to the manner of
applying for pardons.
N.C. Const. art. III, § 5(6).
As the Governor contends, it is “‘well established that the .
. . courts will not adjudicate political questions.’”
Bacon, 353
N.C. at 717, 549 S.E.2d at 854 (omission in original) (quoting
Powell v. McCormack
, 395 U.S. 486, 518, 23 L. Ed. 2d 491, 515, 89
S. Ct. 1944, 1962 (1969)). Our Supreme Court has held that “[a]
question may be held nonjusticiable under this doctrine if it
involves ‘a textually demonstrable constitutional commitment of the
issue to a coordinate political department.’”
Id. (quoting Baker
v. Carr
, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691,
710 (1962)). In support of his argument that the executive’s
control over clemency documents presents such a political question,
the Governor points to our Supreme Court’s statement in
Bacon that
“the State Constitution expressly commits the substance of the
clemency power to the sole discretion of the Governor.”
Id.
The textual commitment referred to in
Bacon, however, is not
absolute. Although “the power to grant or deny clemency [lies in]
the sole discretion of the Governor,”
id. at 721, 549 S.E.2d at
857, our constitution explicitly provides that this power is
“subject to regulations prescribed by law relative to the manner of
-7-
applying for pardons,” N.C. Const. art. III, § 5(6). This division
of authority between the Governor and the General Assembly has long
been recognized by our Supreme Court.
See State v. Yates, 183 N.C.
754, 756, 111 S.E. 337, 338 (1922) (noting that the General
Assembly had exercised “the authority granted in the provision [of
the state constitution]” by “prescrib[ing] certain statutory duties
which are to be observed by the applicant”). The Court in
Bacon
did not address the meaning of the provision in the constitution
allocating some degree of authority to the General Assembly, but
rather held only that “judicial review
of the exercise of clemency
power
would unreasonably disrupt a core power of the executive.”
353 N.C. at 717, 549 S.E.2d at 854 (emphasis added).
This case does not involve judicial review of the Governor’s
exercise of clemency power. Instead, the question before the Court
is whether the N&O is entitled, under the Public Records Law, to
certain clemency records within the possession of the Governor.
The answer to that question turns not on a political question, but
on the meaning of our constitution’s proviso that the Governor’s
power is subject to legislation “relative to the manner of applying
for pardons.”
The principle that questions of constitutional and statutory
interpretation are within the subject matter jurisdiction of the
judiciary is just as well established and fundamental to the
operation of our government as the doctrine of separation of
powers.
See, e.g., Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d
249, 253 (1997) (“It has long been understood that it is the duty
-8-
of the courts to determine the meaning of the requirements of our
Constitution.”).
See also Bayard v. Singleton, 1 N.C. 5, 1 N.C.
(Mart.) 48 (1787) (adopting doctrine of judicial review and
concluding the judiciary may declare acts of the legislature
unconstitutional). Because the outcome of this litigation is
governed by the meaning of N.C. Const. art. III, § 5(6), we
conclude that the judicial branch has authority to resolve this
dispute, and we reject Governor Easley’s challenge to our subject
matter jurisdiction. The trial court, therefore, did not err in
denying the Governor’s motion to dismiss for lack of subject matter
jurisdiction.
[2] We turn now to the question whether the North Carolina
Public Records Law can be invoked to require the Governor to
produce the disputed clemency records. That legislation provides
a right of access to “[t]he public records and public information
compiled by the agencies of North Carolina government.” N.C. Gen.
Stat. § 132-1(b) (2005). This right of access is broadly
enforceable by “[a]ny person who is . . . denied copies of public
records.” N.C. Gen. Stat. § 132-9(a) (2005).
The Governor argues that applying the Public Records Law to
clemency documents would violate separation of powers principles.
“[F]or more than 200 years, [North Carolina] has strictly adhered
to the principle of separation of powers.”
State ex rel. Wallace
v. Bone
, 304 N.C. 591, 599, 286 S.E.2d 79, 83 (1982). See also
N.C. Const. art I, § 6 (“The legislative, executive, and supreme
judicial powers of the State government shall be forever separate
-9-
and distinct from each other.”). 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.
Advisory Opinion In re Separation of Powers, 305 N.C.
767, 774, 295 S.E.2d 589, 593 (1982). “A violation of the
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.”
Ivarsson v.
Office of Indigent Def. Servs.
, 156 N.C. App. 628, 631, 577 S.E.2d
650, 652,
disc. review denied, 357 N.C. 250, 582 S.E.2d 269 (2003).
In response to the Governor’s argument, the N&O relies upon
Poole
, arguing that the Supreme Court held that application of the
Public Records Law to require the executive branch to make
documents public does not implicate the separation of powers
doctrine. The N&O points out that the Court reasoned: “The only
decision cited by defendants bearing on the separation of powers
doctrine, [
Wallace v. Bone], involved two branches of government
interfacing with each other. That decision is inapposite here.
The Public Records Law allows intrusion not by the legislature, or
any other branch of government, but by the public. A policy of
open government does not infringe on the independence of
governmental branches. Statutes affecting other branches of
government do not automatically raise separation of powers
problems.”
Poole, 330 N.C. at 484, 412 S.E.2d at 18.
We disagree with the N&O’s view that
Poole necessarily held
that the Public Records Law could never raise separation of powers
-10-
issues. The defendants in
Poole were asking the Court to adopt a
“preliminary draft” exception to the Public Records Law to protect
from disclosure draft reports resulting from an investigation of
the N.C. State University basketball program. The Court’s holding
regarding the separation of powers rejected the defendants’
argument that a “preliminary draft” exception was necessary “to
prevent the legislature from intruding into the decision-making
processes of other government branches . . . .”
Id. In rendering
its holding, the Court emphasized that defendant had “cited no
controlling authority . . .
and failed to cite or rely on the state
Constitution
. . . .” Id. (emphasis added).
This case, however, involves a specific, broad constitutional
commitment of power to the executive branch and an accompanying
narrow grant of authority to the legislature. N.C. Const. art.
III, § 5(6). Consequently, what was missing in
Poole — an express
constitutional grant and limitation of authority — is present here.
When considering other specific grants of power to the Governor in
N.C. Const. art. III, § 5, our Supreme Court has held that a
statute “constitut[ing] an encroachment upon the duty and
responsibility imposed upon the Governor” in that Article “violates
the principle of separation of governmental powers.”
Advisory
Opinion
, 305 N.C. at 776-77, 295 S.E.2d at 594 (concluding that,
given state constitution’s direct grant of power to the governor to
administer the state’s budget under Article III, § 5(3), statutory
provision purporting to give legislative committee power over
governor’s proposed budget transfers violated separation of
-11-
1
The Governor urges this Court to follow Parole Comm’n v.
Lockett
, 620 So.2d 153, 158 (Fla. 1993), in which the Florida
Supreme Court held that the separation of powers precluded clemency
investigative files being covered by Florida’s Public Records Law.
We find this case unhelpful since Florida’s constitutional
provision vesting clemency authority in the Governor contains no
language comparable to that referring to the legislature contained
in the North Carolina Constitution.
See id. at 155 (quoting the
Florida constitutional provision). For the same reason, we also do
not rely upon
Doe v. Nelson, 2004 S.D. 62, 680 N.W.2d 302 (2004)
(holding that the Governor had no right to seal pardons), and
Doe
v. Salmon
, 135 Vt. 443, 378 A.2d 512 (1977) (holding that the
records of pardons are public record). This appeal must be
resolved based only on construction of North Carolina’s unique
constitutional provision.
powers). We do not, therefore, read
Poole as mandating production
of the clemency records.
By the same token, we cannot accept the Governor’s argument
that the separation of powers doctrine precludes the General
Assembly from enacting any legislation relating to clemency. Just
as the General Assembly may not intrude on the clemency power
granted to the Governor by N.C. Const. art. III, § 5(6), neither
may the Governor — or the judicial branch — intrude upon “the power
[that] was specifically outlined by the state constitution as
belonging to” the General Assembly with respect to clemency.
Ivarsson
, 156 N.C. App. at 632, 577 S.E.2d at 653.1
Contrary to the Governor’s position, nothing in
Bacon holds
otherwise. The Supreme Court explained in
Bacon that “[s]ince the
establishment of their first Constitution in 1776, the people of
North Carolina have committed the power
to grant or deny clemency
to the sole discretion of the Governor.” 353 N.C. at 721, 549
S.E.2d at 857 (emphasis added). In discussing the separation of
powers, the Court observed that the constitution “vest[ed] the
-12-
exclusive authority
to resolve clemency requests in the Executive
Branch . . . .”
Id. (emphasis added). For that reason, “attacks
on the Governor’s
exercise of clemency power . . . are not
reviewable . . . .”
Id. at 722, 549 S.E.2d at 857 (emphasis
added). The focus in
Bacon was on the plaintiff’s request that the
judicial branch intrude on the Governor’s clemency authority by
reviewing its exercise of that authority to grant or deny clemency
requests. The Court was not asked to consider — and did not
consider — the General Assembly’s limited constitutional authority
with respect to clemency.
Indeed, this case presents the first occasion upon which our
appellate courts have been required to address our constitution’s
provision that the Governor’s clemency authority is “
subject to
regulations prescribed by law
relative to the manner of applying
for pardons.” N.C. Const. art. III, § 5(6) (emphasis added). Our
Supreme Court has observed that “‘[t]he best way to ascertain the
meaning of a word or sentence in the Constitution is to read it
contextually and to compare it with other words and sentences with
which it stands connected.’”
State ex rel. Martin v. Preston, 325
N.C. 438, 449, 385 S.E.2d 473, 478 (1989) (quoting
State v. Emery,
224 N.C. 581, 583, 31 S.E.2d 858, 860 (1944)). Further, if a
constitutional provision has a plain meaning, it must be followed.
Coley v. State
, 360 N.C. 493, 498, 631 S.E.2d 121, 125 (2006).
The critical question here is whether the Public Records Law
may be considered a law “relative to the manner of applying for
pardons.” The ordinary meaning of “relative to” is (1) “having
-13-
relation, reference, or application” to or (2) “pertaining,
relevant, pertinent” to.
Webster’s Third New Int’l Dictionary 1916
(1968).
See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-
97, 77 L. Ed. 2d 490, 501, 103 S. Ct. 2890, 2900 (1983) (holding
that a law “relates to” an employee benefit plan “in the normal
sense of the phrase, if it has a connection with or reference to
such a plan”);
Cent. States Found. v. Balka, 256 Neb. 369, 374, 590
N.W.2d 832, 837 (1999) (noting that the ordinary meaning of the
phrase “relating to” means to stand in some relation, to have
bearing or concern, to pertain, to refer, to bring into association
with or connection with). These common definitions all indicate
that in order to fall within the scope of the authority granted to
the legislature by N.C. Const. art. III, § 5(6), a statute must
specifically refer or pertain to the manner of applying for
pardons.
The Public Records Law was enacted pursuant to our State’s
general policy that “the people may obtain copies of their public
records and public information free or at minimal cost unless
otherwise specifically provided by law.” N.C. Gen. Stat. § 132-
1(b). Nothing in the Public Records Law refers to or specifically
pertains to either pardons or clemency. It is not, therefore, a
law “relative to the manner of applying for pardons,” N.C. Const.
art. III, § 5(6).
Our research indicates that the legislature has enacted only
two statutes that arguably fall within N.C. Const. art. III, §
5(6). The first is N.C. Gen. Stat. § 147-16(a)(1) (2005), which
-14-
requires that the Governor retain “[a] register of all applications
for pardon, or for commutation of any sentence, with a list of the
official signatures and recommendations in favor of such
application.” The second is N.C. Gen. Stat. § 147-21 (2005), which
provides:
Every application for pardon must be made
to the Governor in writing, signed by the
party convicted, or by some person in his
behalf. And every such application shall
contain the grounds and reasons upon which the
executive pardon is asked, and shall be in
every case accompanied by a certified copy of
the indictment, and the verdict and judgment
of the court thereon.
The N&O sought the applications submitted pursuant to § 147-21 and
the register required by § 147-16(a)(1), as well as “letters,
memoranda and other documents in support of or in opposition to
petitions for commutations, reprieves and pardons.” At the trial
level, the Governor agreed to produce (1) all applications for
clemency, including the indictment, verdict and judgment of the
court, (2) the names of those supporting the application, and (3)
any document granting clemency.
With respect to the N&O’s request for all written
communications voicing support for or opposition to clemency
applications, the newspaper does not refer us to any statute other
than the Public Records Law that relates to such communications.
Specifically, those communications do not appear to fall within the
purview of either N.C. Gen. Stat. §§ 147-16(a)(1) or 147-21.
Because the General Assembly has not acted with respect to the
records sought, we need not address whether legislation making such
-15-
records subject to the Public Records Law, or otherwise public,
would be regulating the manner of applying for pardons.
Turning to N.C. Gen. Stat. §§ 147-16(a)(1) and 147-21, we note
that, on appeal, the Governor asserts, for the first time, that he
“has since decided he will no longer release the names of those
persons supporting a clemency application because of concerns
expressed by some individuals supporting clemency petitions, but
who did not want their names made public.” This assertion means
that the Governor is declining to produce at least part of the
register specified in § 147-16(a)(1). The trial court’s decision
to grant the motion to dismiss under Rule 12(b)(6) was, however,
reached under the impression that the Governor would be producing
certain records. We find it troubling that the playing field has
changed on appeal.
Further, in oral argument — but not in either of the
Governor’s two appellate briefs — the Governor’s counsel belatedly
urged this Court to conclude that N.C. Gen. Stat. § 147-16(a)(1) is
unconstitutional. The Attorney General’s Office is certainly aware
that “[i]t is a well settled rule of this Court that we will not
pass upon a constitutional question unless it affirmatively appears
that such question was raised and passed upon in the court below.”
Powe v. Odell
, 312 N.C. 410, 416, 322 S.E.2d 762, 765 (1984). We,
therefore, do not address that contention.
Nevertheless, neither § 147-16(a)(1) nor § 147-21 includes any
provision specifying whether the records involved in those two
statutes should be considered public records. Thus, we cannot
-16-
determine that the General Assembly, in exercising its
constitutional authority under N.C. Const. art. III, § 5(6),
intended to provide that the application process for pardons should
be subject to the Public Records Law.
The N&O argues that language specifically making such records
subject to the Public Records Law “would be redundant and
unnecessary, because the Public Records Law is a ‘regulation’ of
general applicability” and “that ‘regulation’ contains no exemption
for clemency records. . . .” This contention, however, disregards
the constitution’s requirement that, with respect to clemency,
there must be specific and not general legislation. It is not
enough that the General Assembly did not exempt clemency records
from a generally-applicable statute; it must have expressly chosen
to exercise its authority to include them. Because of the specific
language of the constitution and the separation of powers
implications, we deem it inappropriate to infer an otherwise
unspecified intent.
We hold, therefore, that the N&O may not use the Public
Records Law to compel Governor Easley to disclose the requested
documents. The trial court, therefore, properly dismissed the
N&O’s complaint for failure to state a claim upon which relief
could be granted.
Affirmed.
Judges CALABRIA and JACKSON concur.
