The N.C. Court of Appeals has ruled that the Public Records Law does not cover statements filed in requests for pardons from the governor.
The News & Observer of Raleigh on May 26, 2005, had submitted a public records request to Gov. Mike Easley’s office seeking information on pardons. Easley’s office voluntarily had agreed to provide copies of all applications for clemency, including the indictment, verdict, and judgment of the court, the names of those supporting the application, and any document granting clemency. The governor, however, refused to give the newspaper a copy of written statements filed in support of or opposition to the clemency requests.
The N&Ofiled a lawsuit to obtain a copy of the statements. In October 2005, Superior Court Judge Evelyn Hill ruled that the governor did not have to provide the newspaper with copies of the statements. Both sides, not just the newspaper, challenged Hill’s ruling.
On appeal, Easley argued that clemency is a “political question,” an issue in which the courts have no authority. Whether to grant a pardon or clemency is the governor’s decision to make alone, and the Public Records Law, crafted by the General Assembly, should not apply, for separation-of-powers reasons.
The Court of Appeals, however, rejected this line of reasoning.
“This case does not involve judicial review of the Governor’s exercise of clemency power,” Judge Martha Geer wrote for the appeals court March 6. “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 portion of the N.C. Constitution at issue is Article III, § 5(6), Clemency. It states:
“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.”
“The critical question here is whether the Public Records Law may be considered a law ‘relative to the manner of applying for pardons,’” Geer wrote. And critically, the court held that any such statute must specifically refer or pertain to the manner of applying for pardons.
The Court of Appeals found only two specific sections of state law — § 147-16(a)(1) and § 147-21 — that could meet that criteria. Perhaps the broader of these is § 147-21, which states that applications should be signed and accompanied by a certified copy of the indictment, the verdict, and judgment of the court. These were items the governor’s office turned over. General Statue § 147-16(a)(1) states the governor shall 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 Court of Appeals also held that the Public Records Law did not apply to statements submitted for or against a pardon request, as the law did not specifically state that it applied to pardons.
“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,” Geer wrote.
“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.”
N.C. Court of Appeals rulings serve as binding interpretations of state law upon the state’s trial courts unless over-ruled by the N.C. Court of Appeals. Because the appeals court ruling was unanimous, the high court is not required to hear the case should the N&O or state further appeal.
Regardless of whether the Supreme Court hears the case, it’s likely that there will be more litigation on the issue. In a change of policy, the governor’s office has announced since the case began that it will no longer release a list of those filing a statement in support of a clemency request, as required by § 147-16(a)(1). The governor also now contends that the section is an unconstitutional violation of the separation of powers. The Court of Appeals did not address this claim for procedural reasons.
The case is News & Observer Publ’n Co. v. Easley, (06-132).
Michael Lowrey is associate editor of Carolina Journal.