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Scott Mooneyham: Who was really governor?

RALEIGH ó Bob Orr is a journalist’s kind of guy.
The former state Supreme Court justice just loves stirring up trouble. His latest stirring has to do with whether Mike Easley was actually North Carolina’s governor for the first nine days and a portion of the 10th day of January.
If he wasn’t, then judicial appointments, grants of clemency and a few other acts by Easley in those final 10 days aren’t really valid, Orr recently told me.
He cites a provision in Article 3, Sec. 2 of the state constitution which reads, “Their (the governor and lieutenant governor) term of office shall be four years and shall commence on the first day of January next after their election and continue until their successors are elected and qualified.”
The term of office begins “first day of January.” It’s pretty plain language.
That same constitution, though, reads that the governor, “before entering upon the duties of his office,” shall take an oath of office. In other words, before current Gov. Beverly Perdue could take any actions as governor, she had to be sworn into office. She didn’t take that oath of office until Jan. 10.
Mark Johnson of The Charlotte Observer spoke to some other constitutional experts, including John Sanders, who helped write the current version the state constitution in the early 1970s. They believe Orr is reaching.
Sanders and Perdue’s legal counsel, longtime Deputy Attorney General Eddie Speas, told Johnson that Orr wasn’t reading the constitution as a whole and that the provision on the oath must be considered when examining the other provisions.
I’m not convinced.
The implication in Orr’s reading of the constitution is that Perdue ó not Easley ó was governor from Jan. 1 until the late morning of Jan. 10, but couldn’t take any official actions as governor until taking that oath.
He goes on to note that a provision listing the qualifications of governor does not include the oath of office.
So, does power change hands with that oath of office? Or, does power end for one governor at the stroke of midnight on Jan. 1, and begin for another upon taking that oath? Does the constitution contemplate this kind of gap in power?
It probably doesn’t matter. Unless someone brings a legal challenge to any of Easley’s final actions based on those constitutional provisions, the back-and-forth becomes a discussion in theory, a board game for lawyers. Orr has no plans to sue. That’s just as well. Perdue might be able to make any lawsuit moot by backtracking and redoing Easley’s final actions.
Still, it’s fun to stir up trouble.
– – –
Scott Mooneyham is a columnist for Capitol Press Association.

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