Lawmakers appeal court ruling on judicial vacancy appointments

North Carolina’s top legislative leaders are appealing a three-judge panel’s ruling allowing Gov. Josh Stein to fill statewide judicial vacancies without new restrictions.

The unanimous panel ruled for Stein and against lawmakers on the judicial vacancy issue on June 24. At the same time, the judges ruled in favor of legislative leaders and against the governor on legal changes affecting the North Carolina Utilities Commission and state Building Code Council.

Legislative leaders filed their notice of appeal Wednesday.

The panel’s decision cleared the way for State Treasurer Brad Briner to appoint a new Utilities Commission member this week.

The panel sided with Stein on his authority to fill statewide judicial vacancies without legislative limits. But judges ruled against a separate challenge of the Utilities Commission appointment shift from Stein to Treasurer Brad Briner. The panel also rejected Stein’s challenge of a law changing voting requirements for the state Building Code Council.

“The Court unanimously determines Plaintiff has demonstrated beyond a reasonable doubt that the amendments to N.C.G.S. § 163-9 in Section 3C.1 of Session Law 2024-57 (Judicial Vacancies Provision) are unconstitutional and is entitled to judgment as matter of law on that claim,” according to the two-page order. “Plaintiff, however, has failed to demonstrate, beyond reasonable doubt, that the General Assembly’s amendments to N.C.G.S. § 62-10 in Section 3F.1 of Session Law 2024-57 (North Carolina Utilities Commission) and N.C.G.S. § 143-136 and other related amendments to Chapter 143, Article 9 in Section 5.1 of Session Law 2024-49 (Building Code Council) are unconstitutional. Defendants are entitled to judgment as matter of law on those two claims.”

Superior Court Judges James Ammons, Imelda Pate, and Graham Shirley heard two hours of arguments in the dispute earlier in the day.

Stein, a Democrat, challenged the Republican-led General Assembly’s decision to make three separate changes in state law affecting appointments. The governor objected to a provision of 2024’s Senate Bill 382 that moved one of his three Utilities Commission appointments to Briner, a Republican.

Briner, who watched the hearing from the audience, selected state Office of Administrative Hearings director Donald van der Vaart to fill the Utilities Commission seat.

“This decision affirms that the governor does not have ultimate authority over other duly elected members of the Council of State to carry out their roles and responsibilities as members of the executive branch,” Briner said in a prepared statement. “I was elected treasurer by people across the state to carry out the duties of this office. The judges, to their credit, carefully reviewed the matter, and properly found that the General Assembly is not prohibited from empowering the treasurer to appoint a member to the Utilities Commission.” 

The governor challenged 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.

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.

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.”

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 moved one of Stein’s appointments to Briner. SB 382 also removed Stein’s authority to select the chair.

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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