Judges tackle power struggle between governor, lawmakers over appointments

A three-judge panel could decide as early as Tuesday afternoon whether the governor or General Assembly will prevail in a legal battle over multiple types of government appointment. The bipartisan panel heard two hours of arguments in the dispute in the morning.

The decision could affect a shift in a North Carolina Utilities Commission appointment set to take effect on July 1.

Gov. Josh Stein, a Democrat, challenges the Republican-led General Assembly’s decision to make three separate changes in state law affecting appointments. Stein challenges a provision of 2024’s Senate Bill 382 that moved one of his three Utilities Commission appointments to State Treasurer Brad Briner, a Republican.

Briner, who watched the hearing from the audience, has selected state Office of Administrative Hearings director Donald van der Vaart to fill the Utilities Commission seat. Van der Vaart would replace a gubernatorial appointee whose term ends on June 30.

The governor challenges a separate section of SB 382 that requires him to fill statewide judicial vacancies with one of three people recommended by the political party of a departing judge or justice. The third piece of the governor’s suit involves a section of Senate Bill 166 that changed voting requirements for the state Building Code Council.

SB 382 is an “aberration,” argued lawyer Daniel Smith, representing Stein on the issue of judicial vacancies. By constraining the governor’s choices when filling vacancies on the state Court of Appeals and state Supreme Court, the law “plainly, clearly” violates Article 4, Section 19 of the North Carolina Constitution, Smith added. The governor has enjoyed “unfettered” power over filling the targeted vacancies since 1868.

The governor’s arguments failed to recognize “the nature of legislative power” under the state constitution, responded lawyer Noah Huffstetler. He represented state legislative leaders. Stein needed to cite text in the constitution that “specifically prohibited” the General Assembly from changing the law regarding judicial vacancies, Huffstetler argued.

Superior Court Judges James Ammons, Imelda Pate, and Graham Shirley are overseeing the case.

Shirley, a Republican from Wake County, peppered Huffstetler with questions about lawmakers’ arguments. Shirley asked whether those arguments would allow the General Assembly to force a governor to appoint a Cabinet member like the secretary of Transportation from an opposing party.

Some provisions could be so “severe” that the governor’s appointment would become a “ministerial act” removing all of his decision-making authority, Huffstetler conceded. “That is not this case,” he said.

Pate, a Lenoir County Democrat, asked legislative lawyers about the burden of forcing the governor to investigate a prospective judge’s party affiliation before making an appointment.

Shirley also led questioning of lawyer Amanda Hawkins as she presented Stein’s arguments against changes to the Utilities Commission and Building Code Council.

The judge noted that the General Assembly has been assigning duties to the treasurer and other members of the elected Council of State since the 19th century. Lawmakers have resisted multiple recommendations to do away with many of those statewide elected executive offices, he said.

Hawkins urged the panel to avoid allowing the General Assembly to shift duties among Council of State members. Such changes “eliminate the independence” of those elected officials, she warned.

Lawyer Matthew Tilley argued for state lawmakers that Stein’s arguments “would turn the separation of powers on its ear.” Stein argues that “all executive power rests with the governor alone,” Tilley added, despite multiple court precedents that reach a different conclusion.

The governor needs to cite an “express limitation” in the constitution that blocks lawmakers’ actions, Tilley argued. “He hasn’t done that.”

“Nothing in the constitution gives him the exclusive right to make appointments,” Tilley said.

Briner’s lawyer, Troy Shelton, argued that the disputed Utilities Commission appointment is neither spelled out in the state constitution nor assigned to the governor by law. “The governor can prevail only if utilities regulation is inherently” a power assigned to the governor, Shelton said. “But it cannot be an inherent power.”

The state constitution gives the General Assembly the authority to organize the executive branch, including assigning an appointment to the treasurer, Shelton added.

“The Governor challenges three recently enacted statutory provisions that expand legislative power beyond what our Constitution’s framers envisioned,” Stein’s lawyers wrote in a June 13 court filing. “One provision purports to require the Governor to fill vacancies on appellate courts with appointees selected by political-party leaders. The other two provisions restructure executive commissions to allow the General Assembly, not the executive branch, to control how our State’s laws are enforced.”

“These transparent power grabs — two of which were enacted by a lame-duck General Assembly — are difficult to defend, and Legislative Defendants do not succeed in doing so,” Stein’s lawyers added. “On the judicial vacancies front, they argue that constitutional silence should not be read to constrain the General Assembly. But that is a non sequitur.”

“The Constitution is not silent about whether the General Assembly may qualify the Governor’s authority to fill appellate court vacancies,” the court filing continued. “Instead, Article IV, Section 19 specifically prohibits the legislature from imposing any limits on the Governor’s appointment authority beyond those found in Article IV itself. Legislative Defendants’ partisan appointment restriction runs counter to that constitutional prohibition.”

Stein’s court filing also challenged the Utilities Commission and Building Code Council changes. 

“Legislative Defendants … assert that the Governor claims a right ‘to control every action taken by every board and commission the General Assembly creates,’” Stein’s lawyers wrote. “The Treasurer similarly claims that ‘[t]he Governor seeks to consolidate all executive power in himself.’ But the Governor does not claim such broad power over the executive branch, and the Treasurer and Legislative Defendants know it.”

“[T]he Governor’s challenges to Senate Bill 166’s changes to the Building Code Council and Senate Bill 382’s changes to the Utilities Commission rest on two straightforward positions grounded in the plain text of our Constitution and binding precedent: (1) the executive branch, not the legislative branch, must control entities whose functions are primarily executive; and (2) when an entity with primarily executive functions is housed within one of the Governor’s Cabinet agencies or its functions do not relate to another Council of State member’s core constitutional duties, the Governor himself, as the State’s chief executive, must have enough control to ensure the entity is faithfully executing the law. The challenged provisions are not consistent with these uncontroversial separation-of-powers principles,” the governor argued.

All parties in the seek summary judgment, which would resolve the dispute without a trial.

“The provisions challenged here exceed the General Assembly’s constitutional authority,” Stein’s lawyers wrote. “Legislative Defendants and the Treasurer cannot demonstrate otherwise, and they are therefore not entitled to summary judgment. The Court should deny their motions and grant the Governor’s motion for summary judgment.”

Republican legislative leaders countered Stein’s arguments in a separate June 13 court filing.

“Contrary to the Governor’s claims, Senate Bills 166 and 382 are legitimate exercises of the General Assembly’s plenary and express powers to organize State agencies, assign duties to members of the Council of State, and make laws that govern how officials carry out their constitutional duties, such as the Governor’s duty to fill judicial vacancies on the appellate bench,” legislative lawyers wrote.

“Although the Governor has chosen to bring three, disparate challenges together in the same lawsuit, his claims all suffer from a common defect: He ignores the applicable standard of review,” the court filing continued.

“The Supreme Court has repeatedly admonished that, because our Constitution is not a grant of power, all power not expressly limited by the Constitution remains with the People and their elected representatives in the General Assembly,” lawmakers’ lawyers argued. “In recognition of that principle, it has repeatedly stressed that courts must presume laws are Constitutional unless a Plaintiff can show — beyond a reasonable doubt — that the law at issue is expressly prohibited by another provision of the Constitution.”

“The Governor, however, fails to carry that burden. Instead, he seeks to invent limits on the General Assembly’s powers, inferring them from silence or strained readings of Supreme Court decisions that expressly disclaimed any application to the issues in this case,” the court filing added.

“Accepting the Governor’s claims is not without consequence. Our Founders left decisions regarding how State agencies should be organized, including who appoints statutory officers and how duties are divided amongst the Council of State, to the legislative branch. They did so in order to check the exercise of executive power and to ensure that the executive remains accountable to the People. Accepting the Governor’s theory would eliminate those checks, consolidating power in one man, and erode the very protections our founders built into our constitutional system,” legislative lawyers wrote.

Briner’s lawyers also filed a brief on June 13.

“In his complaint, the Governor claimed that he is the executive branch, having the ‘exclusive’ authority over execution of the laws,” the treasurer’s lawyers wrote. “Shortly thereafter, the Supreme Court rejected that theory. Stein v. Berger resolves this case. If the General Assembly can put the State Auditor fully in charge of the Board of Elections, then it can certainly let the Treasurer appoint one of the Utilities Commission’s five members.”

Stein v. Berger involved the governor’s challenge of a state law allowing State Auditor Dave Boliek to take over appointments to the State Board of Elections.

“The analytical framework most recently articulated last month in Stein v. Berger leaves no doubt about how the Supreme Court would view this case,” Briner’s court filing explained. “Governor Stein does not even attempt to satisfy this framework, so his claim should be dismissed.”

The disputed Utilities Commission appointment makes up one piece of a lawsuit Stein filed on Feb. 7 against multiple provisions of Senate Bill 382, enacted in 2024 over then-Gov. Roy Cooper’s veto. Stein’s suit also challenges a provision in SB 382 that would restrict his appointments if he fills a statewide judicial vacancy. Stein challenges provision in Senate Bill 166 that limit his authority over the state Building Code Council.

Before SB 382, the governor appointed three of the Utilities Commission’s five members. Legislative leaders appointed the other two members. The governor also selected the commission’s chair.

The challenged law moves one of Stein’s appointments to Briner. SB 382 also removes Stein’s authority to select the chair.

“As a result, the Governor will no longer be able to appoint, supervise, or remove a majority of the members of the Utilities Commission,” Stein’s lawyers wrote.

“Starting July 1, 2025, and upon legislative confirmation of the Treasurer’s appointee, the Utilities Commission is likely to elect a new chair that is not one of the Governor’s appointees,” Stein’s lawyers wrote. “These changes will cause immediate and irreparable injury, loss, or damage to the Governor if allowed to take effect.”

“The restructuring of the Utilities Commission violates the North Carolina Constitution — specifically Sections 1 and 5(4) of Article III and Section 6 of Article I,” the court filing continued.

“Senate Bill 382’s changes to the Utilities Commission prevent the Governor from fulfilling the duties and exercising the powers assigned to him in the Constitution,” Stein’s lawyers added.

SB 382 combined Hurricane Helene relief with a series of changes to state government’s structure. Lawmakers approved the measure in December over then-Gov. Roy Cooper’s veto. Both Cooper and Stein are Democrats.

“Senate Bill 382 usurps executive power by allowing the General Assembly to control the execution of the laws — a duty that is constitutionally committed to the Governor,” Stein’s lawyers wrote in the original complaint. “And the Bill attempts to rewrite the Governor’s constitutional powers by statute rather than a constitutional amendment submitted to the people.”

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