{ "id": 8167669, "name": "THE NEWS AND OBSERVER PUBLISHING COMPANY, Plaintiff v. MICHAEL F. EASLEY, In his capacity as Governor of the State of North Carolina, Defendant", "name_abbreviation": "News & Observer Publishing Co. v. Easley", "decision_date": "2007-03-06", "docket_number": "No. COA06-132", "first_page": "14", "last_page": "24", "citations": [ { "type": "official", "cite": "182 N.C. App. 14" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "631 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636050 ], "year": 2006, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0121-01" ] }, { "cite": "135 Vt. 443", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4699270 ], "weight": 2, "year": 1977, "pin_cites": [ { "parenthetical": "holding that the records of pardons are public record" }, { "parenthetical": "holding that the records of pardons are public record" } ], "opinion_index": 0, "case_paths": [ "/vt/135/0443-01" ] }, { "cite": "2004 S.D. 62", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 9247075 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "holding that the Governor had no right to seal pardons" }, { "parenthetical": "holding that the Governor had no right to seal pardons" } ], "opinion_index": 0, "case_paths": [ "/nw2d/680/0302-01" ] }, { "cite": "620 So.2d 153", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7466297, 7466205 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "158" }, { "page": "155", "parenthetical": "quoting the Florida constitutional provision" } ], "opinion_index": 0, "case_paths": [ "/so2d/620/0153-02", "/so2d/620/0153-01" ] }, { "cite": "322 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2166877 ], "year": 1984, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/sc/286/0070-01" ] }, { "cite": "312 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758734 ], "year": 1984, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0410-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14746", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 147-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 147-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "256 Neb. 369", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 93838 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "374", "parenthetical": "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" }, { "page": "837", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/neb/256/0369-01" ] }, { "cite": "463 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191473 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "96-97", "parenthetical": "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\"" }, { "page": "501", "parenthetical": "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\"" }, { "page": "2900", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/us/463/0085-01" ] }, { "cite": "360 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788520 ], "year": 2006, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0493-01" ] }, { "cite": "31 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "860" } ], "opinion_index": 0 }, { "cite": "224 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610657 ], "year": 1944, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0581-01" ] }, { "cite": "385 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "325 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491477 ], "year": 1989, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0438-01" ] }, { "cite": "582 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491809, 491906, 491844, 491530, 491471, 491571, 491860, 491861 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0250-08", "/nc/357/0250-06", "/nc/357/0250-03", "/nc/357/0250-02", "/nc/357/0250-07", "/nc/357/0250-04", "/nc/357/0250-05", "/nc/357/0250-01" ] }, { "cite": "577 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191852 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "631" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0628-01" ] }, { "cite": "295 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "593" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "305 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1982, "pin_cites": [ { "page": "774" }, { "page": "776-77" } ], "opinion_index": 0 }, { "cite": "286 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "304 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570176 ], "year": 1982, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0591-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 132-9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 132", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "1 N.C. (Mart.) 48", "category": "reporters:state", "reporter": "Mart.", "case_ids": [ 12139619, 12139740, 12127477 ], "year": 1787, "pin_cites": [ { "parenthetical": "adopting doctrine of judicial review and concluding the judiciary may declare acts of the legislature unconstitutional" } ], "opinion_index": 0, "case_paths": [ "/nc/1/0048-01", "/nc/1/0048-02", "/nc/1/0048-01" ] }, { "cite": "1 N.C. 5", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12134632, 12121236 ], "opinion_index": 0, "case_paths": [ "/nc/1/0005-01", "/nc/1/0005-01" ] }, { "cite": "488 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "253", "parenthetical": "\"It has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution.\"" } ], "opinion_index": 0 }, { "cite": "346 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139626 ], "year": 1997, "pin_cites": [ { "page": "345", "parenthetical": "\"It has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0336-01" ] }, { "cite": "111 S.E. 337", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "338", "parenthetical": "noting that the General Assembly had exercised \"the authority granted in the provision [of the state constitution]\" by \"prescribing] certain statutory duties which are to be observed by the applicant\"" } ], "opinion_index": 0 }, { "cite": "183 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "year": 1922, "pin_cites": [ { "page": "756", "parenthetical": "noting that the General Assembly had exercised \"the authority granted in the provision [of the state constitution]\" by \"prescribing] certain statutory duties which are to be observed by the applicant\"" } ], "opinion_index": 0 }, { "cite": "369 U.S. 186", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166554 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "217" }, { "page": "686" }, { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/us/369/0186-01" ] }, { "cite": "395 U.S. 486", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772164 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "518" }, { "page": "515" }, { "page": "1962" } ], "opinion_index": 0, "case_paths": [ "/us/395/0486-01" ] }, { "cite": "577 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511527, 1511629, 1511511, 1511639, 1511292 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0675-01", "/nc/356/0675-02", "/nc/356/0675-03", "/nc/356/0675-05", "/nc/356/0675-04" ] }, { "cite": "574 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "54", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249087 ], "year": 2002, "pin_cites": [ { "page": "118", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0110-01" ] }, { "cite": "412 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "18" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "330 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508375 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0465-01" ] }, { "cite": "122 S. Ct. 22", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 9466962 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/br/269/0022-01" ] }, { "cite": "150 L. Ed. 2d 804", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "533 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9354636, 9354598, 9354711 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/533/0975-02", "/us/533/0975-01", "/us/533/0975-03" ] }, { "cite": "549 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2001, "pin_cites": [ { "page": "854", "parenthetical": "omission in original" }, { "page": "857" }, { "page": "854", "parenthetical": "emphasis added" }, { "page": "857", "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" }, { "page": "857", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "353 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135641 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "717" }, { "page": "717" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0696-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 132-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 1058, "char_count": 26580, "ocr_confidence": 0.748, "pagerank": { "raw": 5.975198081241062e-08, "percentile": 0.3718037229197532 }, "sha256": "acb1ac2f1ea1c6892ea1b405c609cbbac003f8accb4e3ab4c3a6bf3a4e5e8573", "simhash": "1:89b9904b740a2674", "word_count": 4308 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and JACKSON concur." ], "parties": [ "THE NEWS AND OBSERVER PUBLISHING COMPANY, Plaintiff v. MICHAEL F. EASLEY, In his capacity as Governor of the State of North Carolina, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal arises out of the efforts of the News and Observer Publishing Company (the \u201cN&O\u201d) to require Governor Michael F. Easley to produce, under North Carolina\u2019s Public Records Law, N.C. Gen. Stat. \u00a7\u00a7 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\u2019s lawsuit to obtain thes\u00e9 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\u2019s motion pursuant to N.C.R. Civ. P. 12(b)(1), rejecting the Governor\u2019s position that the N&O\u2019s complaint presented a non-justiciable political question. Both parties have appealed.\nBecause 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. Ill, \u00a7 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.\nWith respect to the N&O\u2019s request for clemency records, we hold that N.C. Const, art. Ill, \u00a7 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 \u201crelative to the manner of applying for pardons.\u201d Id. All other clemency authority rests with the Governor. We have further concluded that this constitutional provision requires that the legislation specifically relate \u201cto the manner of applying for pardons\u201d and, therefore, legislation such as the Public Records Law, which does not specifically reference clemency, cannot be allowed to intrude upon the Governor\u2019s clemency authority. We, therefore, uphold the trial court\u2019s dismissal of the N&O\u2019s lawsuit pursuant to N.C.R. Civ. P. 12(b)(6).\nOn 26 May 2005, the N&O requested the following records received or created by Governor Easley in connection with requests for clemency:\n1. Each application for pardon received by Governor Easley during his tenure in office. As used herein, the term \u201capplication for pardon\u201d means the documents defined in G.S. \u00a7 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.\n2. The register of applications for pardons prescribed by G.S. \u00a7 147-16(a)(l).\n3. 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.\nThe Governor\u2019s office responded that it would voluntarily make available \u201c(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.\u201d Other clemency records, described as \u201cwritten communications of support or opposition to the clemency application,\u201d would not, however, be provided.\nOn 5 July 2005, the N&O filed a complaint in Wake County Superior Court challenging the Governor\u2019s decision. The complaint asserted that the requested clemency records were \u201cpublic records\u201d 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\u2019s 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\u2019s 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.\nDiscussion\nOn appeal, Governor Easley \u2014 in arguing both the lack of subject matter jurisdiction and the inapplicability of the Public Records Law \u2014 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\u2019s 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\u2019s claims for lack of subject matter jurisdiction.\nIn 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.\nFurther, 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\u2019s 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) (\u201cIt is critical for our purposes to remain focused on North Carolina\u2019s timeless separation of powers doctrine rather than be distracted by public policy debate embedded in any ephemeral issue of a case.\u201d), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003).\nThe question posed by this appeal is not resolved by either Bacon or Poole, but rather must be decided based on the language of our constitution\u2019s provision with respect to the clemency power. That provision states:\nClemency. 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.\nN.C. Const, art. Ill, \u00a7 5(6).\nAs the Governor contends, it is \u201c \u2018well established -that the . . . courts will not adjudicate political questions.\u2019 \u201d 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 \u201c[a] question may be held nonjusticiable under this doctrine if it involves \u2018a textually demonstrable constitutional commitment of the issue to a coordinate political department.\u2019 \u201d 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\u2019s control over clemency documents presents such a political question, the Governor points to our Supreme Court\u2019s statement in Bacon that \u201cthe State Constitution expressly commits the substance of the clemency power to the sole discretion of the Governor.\u201d Id.\nThe textual commitment referred to in Bacon, however, is not absolute. Although \u201cthe power to grant or deny clemency [lies in] the sole discretion of the Governor,\u201d id. at 721, 549 S.E.2d at 857, our constitution explicitly provides that this power is \u201csubject to regulations prescribed by law relative to the manner of applying for pardons,\u201d N.C. Const, art. Ill, \u00a7 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 \u201cthe authority granted in the provision [of the state constitution]\u201d by \u201cprescribing] certain statutory duties which are to be observed by the applicant\u201d). 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 \u201cjudicial review of the exercise of clemency power would unreasonably dis-rapt a core power of the executive.\u201d 353 N.C. at 717, 549 S.E.2d at 854 (emphasis added).\nThis case does not involve judicial review of the Governor\u2019s 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\u2019s proviso that the Governor\u2019s power is subject to legislation \u201crelative to the manner of applying for pardons.\u201d\nThe 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) (\u201cIt has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution.\u201d). 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. Ill, \u00a7 5(6), we conclude that the judicial branch has authority to resolve this dispute, and we reject Governor Easley\u2019s challenge to our subject matter jurisdiction. The trial court, therefore, did not err in denying the Governor\u2019s motion to dismiss for lack of subject matter jurisdiction.\nWe 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 \u201c[t]he public records and public information compiled by the agencies of North Carolina government.\u201d N.C. Gen. Stat. \u00a7 132-l(b) (2005). This right of access is broadly enforceable by \u201c[a]ny person who is . . . denied copies of public records.\u201d N.C. Gen. Stat. \u00a7 132-9(a) (2005).\nThe Governor argues that applying the Public Records Law to clemency documents would violate separation of powers principles. \u201c[F]or more than 200 years, [North Carolina] has strictly adhered to the principle of separation of powers.\u201d 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, \u00a7 6 (\u201cThe legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.\u201d). 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). \u201cA 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.\u201d 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).\nIn response to the Governor\u2019s 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: \u201cThe 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.\u201d Poole, 330 N.C. at 484, 412 S.E.2d at 18.\nWe disagree with the N&O\u2019s view that Poole necessarily held that the Public Records Law could never raise separation of powers issues. The defendants in Poole were asking the Court to adopt a \u201cpreliminary draft\u201d 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\u2019s holding regarding the separation of powers rejected the defendants\u2019 argument that a \u201cpreliminary draft\u201d exception was necessary \u201cto 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 \u201ccited no controlling authority... and failed to cite or rely on the state Constitution . . . .\u201d Id. (emphasis added).\nThis 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. Ill, \u00a7 5(6). Consequently, what was missing in Poole \u2014 an express constitutional grant and limitation of authority \u2014 is present here. When considering other specific grants of power to the Governor in N.C. Const, art. Ill, \u00a7 5, our Supreme Court has held that a statute \u201cconstitut[ing] an encroachment upon the duty and responsibility imposed upon the Governor\u201d in that Article \u201cviolates the principle of separation of governmental powers.\u201d Advisory Opinion, 305 N.C. at 776-77, 295 S.E.2d at 594 (concluding that, given state constitution\u2019s direct grant of power to the governor to administer the state\u2019s budget under Article III, \u00a7 5(3), statutory provision purporting to give legislative committee power over governor\u2019s proposed budget transfers violated separation of powers). We do not, therefore, read Poole as mandating production of the clemency records.\nBy the same token, we cannot accept the Governor\u2019s 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. Ill, \u00a7 5(6), neither may the Governor \u2014 or the judicial branch \u2014 intrude upon \u201cthe power [that] was specifically outlined by the state constitution as belonging to\u201d the General Assembly with respect to clemency. Ivarsson, 156 N.C. App. at 632, 577 S.E.2d at 653.\nContrary to the Governor\u2019s position, nothing in Bacon holds otherwise.. The Supreme Court explained in Bacon that \u201c[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.\u201d 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 \u201cvest[ed] the exclusive authority to resolve clemency requests in the Executive Branch . . . .\u201d Id. (emphasis added). For that reason, \u201cattacks on the Governor\u2019s exercise of clemency power . . . are not reviewable . ...\u201d Id. at 722, 549 S.E.2d at 857 (emphasis added). The focus in Bacon was on the plaintiff\u2019s request that the judicial branch intrude on the Governor\u2019s clemency authority by reviewing its exercise of that authority to grant or deny clemency requests. The Court was not asked to consider \u2014 and did not consider \u2014 the General Assembly\u2019s limited constitutional authority with respect to clemency. \u2022\nIndeed, this case presents the first occasion upon which our appellate courts have been required to address our constitution\u2019s provision that the Governor\u2019s clemency authority is \u201csubject to regulations prescribed by law relative to the manner of applying for pardons.\u201d N.C. Const, art. Ill, \u00a7 5(6) (emphasis added). Our Supreme Court has observed that \u201c \u2018[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.\u2019 \u201d 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).\nThe critical question here is whether the Public Records Law may be considered a law \u201crelative to the manner of applying for pardons.\u201d The ordinary meaning of \u201crelative to\u201d is (1) \u201chaving relation, reference, or application\u201d to or (2) \u201cpertaining, relevant, pertinent\u201d to. Webster\u2019s Third New Int\u2019l 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 \u201crelates to\u201d an employee benefit plan \u201cin the normal sense of the phrase, if it has a connection with or reference to such a plan\u201d); Cent. States Found. v. Balka, 256 Neb. 369, 374, 590 N.W.2d 832, 837 (1999) (noting that the ordinary meaning of the phrase \u201crelating to\u201d 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. Ill, \u00a7 5(6), a statute must specifically refer or pertain to the manner of applying for pardons.\nThe Public Records Law was enacted pursuant to our State\u2019s general policy that \u201cthe people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.\u201d N.C. Gen. Stat. \u00a7 132-l(b). Nothing in the Public Records Law refers to or specifically pertains to either pardons or clemency. It is not, therefore, a law \u201crelative to the manner of applying for pardons,\u201d N.C. Const, art. Ill, \u00a7 5(6).\nOur research indicates that the legislature has enacted only two statutes that arguably fall within N.C. Const, art. Ill, \u00a7 5(6). The first is N.C. Gen. Stat. \u00a7 147-16(a)(l) (2005), which requires that the Governor retain \u201c[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.\u201d The second is N.C. Gen. Stat. \u00a7 147-21 (2005), which provides:\nEvery 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.\nThe N&O sought the applications submitted pursuant to \u00a7 147-21 and the register required by \u00a7 14746(a)(1), as well as \u201cletters, memo-randa and other documents in support of or in opposition to petitions for commutations, reprieves and pardons.\u201d 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.\nWith respect to the N&O\u2019s 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. \u00a7\u00a7 14746(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 records subject to the Public Records Law, or otherwise public, would be regulating the manner of applying for pardons.\nTurning to N.C. Gen. Stat. \u00a7\u00a7 14746(a)(1) and 147-21, we note that, on appeal, the Governor asserts, for the first time, that he \u201chas 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.\u201d This assertion means that the Governor is declining to produce at least part of the register specified in \u00a7 14746(a)(1). The trial court\u2019s 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.\nFurther, in oral argument \u2014 but not in either of the Governor\u2019s two appellate briefs \u2014 the Governor\u2019s counsel belatedly urged this Court to conclude that N.C. Gen. Stat, \u00a7 147-16(a)(l) is unconstitutional. The Attorney General\u2019s Office is certainly aware that \u201c[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.\u201d Powe v. Odell, 312 N.C. 410, 416, 322 S.E.2d 762, 765 (1984). We, therefore, do not address that contention.\nNevertheless, neither \u00a7 147-16(a)(l) nor \u00a7 147-21 includes any provision specifying whether the records involved in those two statutes should be considered public records. Thus, we cannot determine that the General Assembly, in exercising its constitutional authority under N.C. Const, art. Ill, \u00a7 5(6), intended to provide that the application process for pardons should be subject to the Public Records Law.\nThe N&O argues that language specifically making such records subject to the Public Records Law \u201cwould be redundant and unnecessary, because the Public Records Law is a \u2018regulation\u2019 of general applicability\u201d and \u201cthat \u2018regulation\u2019 contains no exemption for clemency records. ...\u201d This contention, however, disregards the constitution\u2019s 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.\nWe 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\u2019s complaint for failure to state a claim upon which relief could be granted.\nAffirmed.\nJudges CALABRIA and JACKSON concur.\n. The Governor urges this Court to follow Parole Comm\u2019n 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\u2019s Public Records Law. We find this case unhelpful since Florida\u2019s 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\u2019s unique constitutional provision.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "THE NEWS AND OBSERVER PUBLISHING COMPANY, Plaintiff v. MICHAEL F. EASLEY, In his capacity as Governor of the State of North Carolina, Defendant\nNo. COA06-132\n(Filed 6 March 2007)\n1. Jurisdiction\u2014 subject matter \u2014 Public Records Law\u2014 clemency records \u2014 meaning of constitutional provision\nThe 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\u2019s Public Records Law, records relating to applications for clemency, because: (1) the case does not involve judicial review of the Governor\u2019s 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. Ill, \u00a7 5(6); and (3) it is a fundamental responsibility of the courts to determine how the constitution should be construed.\n2. Governor; Public Records\u2014 clemency records \u2014 Public Records Law inapplicable\nThe trial court did not err by dismissing plaintiff\u2019s lawsuit under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) and by refusing to require defendant Governor to produce, under North Carolina\u2019s Public Records Law, N.C.G.S. \u00a7\u00a7 132-1 through 132-10, records relating to applications for clemency, because: (1) N.C. Const, art. Ill, \u00a7 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\u2019s clemency authority; and (3) although the Governor\u2019s counsel urged the Court of Appeals during oral arguments to conclude that N.C.G.S. \u00a7 147-16(a)(l) is unconstitutional, a constitutional question will not be addressed unless it was raised and passed upon in the court below.\nAppeal 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.\nEverett Gaskins Hancock & Stevens, LLP, by Hugh Stevens and C. Amanda Martin, for plaintiff.\nAttorney General Roy Cooper, by Legal Counsel to Governor Easley Andrew A. Vanore, Jr. and Special Deputy Attorney General W. Dale Talbert, for defendant." }, "file_name": "0014-01", "first_page_order": 46, "last_page_order": 56 }