News and Observer Pub. Co. v. Easley

641 S.E.2d 698, 182 N.C. App. 14, 35 Media L. Rep. (BNA) 1731, 2007 N.C. App. LEXIS 490
CourtCourt of Appeals of North Carolina
DecidedMarch 6, 2007
DocketNo. COA06-132.
StatusPublished
Cited by7 cases

This text of 641 S.E.2d 698 (News and Observer Pub. Co. v. Easley) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
News and Observer Pub. Co. v. Easley, 641 S.E.2d 698, 182 N.C. App. 14, 35 Media L. Rep. (BNA) 1731, 2007 N.C. App. LEXIS 490 (N.C. Ct. App. 2007).

Opinion

GEER, Judge.

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.

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 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 *701the 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

On appeal, Governor Easley - in arguing both the lack of subject matter jurisdiction and the in applicability 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, 122 S.Ct. 22, 150 L.Ed.2d 804 (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 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,

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Bluebook (online)
641 S.E.2d 698, 182 N.C. App. 14, 35 Media L. Rep. (BNA) 1731, 2007 N.C. App. LEXIS 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/news-and-observer-pub-co-v-easley-ncctapp-2007.