Stein seeks to stay appeal in utilities, judicial vacancy dispute

Gov. Josh Stein is asking the North Carolina Court of Appeals to put off legal filings for now in an appeal involving judicial and Utilities Commission appointments. The legal dispute pits the Democratic governor against Republican state legislative leaders and Republican Treasurer Brad Briner.

Top lawmakers and Briner oppose Stein’s request, according to a court filing Friday.

A three-judge trial court panel in Stein v. Hall ruled in June that state legislators had encroached on Stein’s constitutional power by limiting his choices for filling statewide judicial vacancies. But the same panel ruled against Stein and in favor of legislators on the shift of one of Stein’s Utilities Commissions appointments to Briner. Judges also ruled for legislative leaders and against the governor on changes to the state Building Code Council’s voting procedures.

All parties appealed the trial judge’s decision in July.

The court filing Friday asks the Appeals Court to delay briefing in Stein v. Hall until 30 days after the court issues a decision in a separate dispute between the governor and legislative leaders. The other case, called Cooper v. Berger, also involves a dispute over appointments to state boards and commissions. A three-judge appellate panel heard oral arguments in Cooper v. Berger on Feb. 17.

Stein’s latest court filing echoes arguments the governor made on Aug. 7. At that time, he opposed Briner’s request to expedite the Stein v. Hall appeal.

“Cooper v. Berger, which also concerns statutes restructuring executive branch boards and commissions, involves similar constitutional issues as this case,” the governor’s lawyers wrote in the latest filing.

“Given the significant factual and legal overlap between Cooper v. Berger and this case, judicial economy and the public interest are best served by staying briefing in this appeal until Cooper v. Berger is resolved,” Stein’s lawyers argued. “That decision is likely to have a significant impact on the parties’ arguments and positions in this case.”

“Indeed, the Court’s decision in Cooper v. Berger could resolve the issues pertinent to the Utilities Commission and Building Code Council altogether,” the court filing continued. “A short stay of briefing would also eliminate the risk of a need for supplemental briefing or re-argument if Cooper v. Berger is decided while this appeal is pending.”

Briner and top lawmakers “intend to respond in opposition to this motion,” Stein’s lawyers added.

Cooper v. Berger involves a dispute over changes to appointments for seven state boards and commissions. At the trial court, lawmakers prevailed in five of the seven disputed boards. Both the governor and legislative leaders appealed.

The Appeals Court has not yet issued a ruling on Briner’s Aug. 5 motion to expedite Stein v. Hall.

”The constitutional issues presented in this case are important and should be determined expeditiously so that the public and regulated entities can have certainty on the state of the law,” the treasurer’s lawyers wrote.

“Although the Treasurer does not have a stake in all three issues on appeal, he has an important stake in his appointment authority for the Utilities Commission,” Briner’s lawyers wrote. “The commission regulates the public utilities in the state. The public, the regulated utilities, and their customers all depend on a fully functioning commission that can speak with the force of law.”

“The Treasurer, while confident that this Court will affirm his ability to appoint a member of the commission, is nonetheless troubled that the Governor’s appeal could cast doubt on the commission’s work,” the motion explained.  

That trial court decision allowed Briner to appoint Donald van der Vaart to the Utilities Commission, effective July 1. Van der Vaart is a former state secretary of the Department of Environmental Quality under Republican Gov. Pat McCrory. Van der Vaart most recently led the Office of Administrative Hearings.

Stein filed his notice of appeal in the Utilities Commission dispute on July 23. Legislative leaders filed a notice of appeal on July 2 on the judicial vacancy issue.

Superior Court Judges James Ammons, Imelda Pate, and Graham Shirley heard two hours of arguments in the dispute before issuing their June 24 decision.

“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 judges’ 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.”

The governor challenged a section of 2024’s Senate Bill 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.

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.

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 Cooper’s veto. Cooper recently announced plans to seek the Democratic Party’s nomination next year for North Carolina’s US Senate race.

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