Briner seeks expedited resolution of utilities appointment legal battle

State Treasurer Brad Briner is asking North Carolina’s second-highest court to expedite a legal dispute involving an appointment to the state Utilities Commission. Gov. Josh Stein is appealing a lower court ruling that upheld the shift of a commission appointment from the governor to Briner.

Briner, a Republican, filed a motion Tuesday to expedite the appeal at the North Carolina Court of Appeals. Republican state legislative leaders “consent” to the motion. The Democrat Stein “opposes” the idea.

“This appeal involves three constitutional challenges brought by Governor Stein. A three-judge panel rejected two of the challenges but agreed with one,” Briner’s lawyers wrote. ”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 three-judge Superior Court panel in the case, Stein v. Hall, agreed with the governor in June that he should be able to fill appellate judicial vacancies without any new restrictions from the General Assembly. But the same panel rejected Stein’s objection to the shift of a Utilities Commission appointment to Briner, along with changes to voting requirements for the state Building Code Council.

“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.  

Briner appointed 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’s lawyers want to wait to address the appeal involving van der Vaart’s appointment, Briner’s lawyers wrote. The governor’s legal team would like to see the Appeals Court resolve a separate dispute involving appointments to seven other state boards and commissions. An appellate panel heard that case, Cooper v. Berger, in February.

“The Governor stated that he would rather delay briefing this appeal pending this Court’s disposition of Cooper v. Berger,” Briner’s lawyers wrote. “Notwithstanding that position, the governor’s counsel asserted in conferral that the governor has been irreparably harmed by the change in law for the Utilities Commission going into effect.”

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.

“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 … 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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