A ruling Wednesday in a courtroom battle over appointments to seven North Carolina state boards and commissions could influence the outcome of another legal fight. This one involves the shift of a state Utilities Commission appointment from the governor to the state treasurer.
Gov. Josh Stein, a Democrat, challenges a state law that allowed Treasurer Brad Briner, a Republican, to appoint a new utilities commissioner to the five-member board on July 1. Briner chose Donald van der Vaart, the director of the state Office of Administrative Hearings and a former state environmental quality secretary under Republican Gov. Pat McCrory.
The case heads to oral arguments before the North Carolina Court of Appeals on Oct. 28.
A court order Wednesday in the case Stein v. Hall called on parties in the dispute to respond to the same court’s ruling earlier in the day in a case called Stein v. Berger.
In Stein v. Berger, the governor challenged state laws changing appointments to seven state boards and commissions. A unanimous all-Republican appellate panel upheld changes for four commissions. The panel rejected changes for three other boards.
Stein v. Hall involves three separate disputes. First, Stein challenges changes to the process for filling statewide judicial vacancies. Second, he challenges the shift of one of his three Utilities Commission appointments to Briner. Third, Stein challenges changes involving the state Building Code Council’s voting procedures.
The three-judge appellate panel overseeing Stein v. Hall “directs the parties” dealing with the utilities and building code disputes to submit new brief in the case by Oct. 23. Those briefs should address the impact of the Stein v. Berger ruling, according to Wednesday’s order.
Stein v. Berger addressed issues that also appear in Stein v. Hall. In both cases, the governor objected to legislators transferring one of his appointments to a Republican member of the Council of State.
The Stein v. Berger panel rejected that argument when upholding changes to appointments for the Environmental Management Commission, Wildlife Resources Commission, and Coastal Resources Commission.
“[T]he Commissioner of Agriculture and Commissioner of Insurance, both members of the Council of State, along with the Governor combine to grant the executive branch majority-appointment power concerning the EMC, CRC, and WRC,” wrote Judge Jeff Carpenter. “Moreover, given the commissions’ majority quorums for the transaction of business, the executive branch ‘can exert most of the control over the executive policy that is implemented’ by the commissions.”
The Stein v. Berger panel also upheld a change in state law shifting functions of the state Building Code Council to a new Residential Code Council. Before the new law, the governor appointed all seven BCC members. With the new law in place, Stein maintains seven appointments and can name the chair of the RCC. The General Assembly now has six appointments. Nine members are required for a quorum.
“By restructuring the BCC in this manner, the Governor controls the majority and the chair, who controls the composition of committees,” Carpenter wrote. “While the change in size and voting structure does not guarantee the Governor total control over the RCC’s actions, the Governor nonetheless retains ‘enough control’ because his appointed members constitute seven of the nine members required for the quorum.”
Judge John Tyson joined Carpenter’s decision in Stein v. Berger. Judge Thomas Murry “fully concur[red]” with the decision but wrote separately to defend a particular methodology used to reach the decision. All three judges are Republicans.
Tyson will also take part in the Stein v. Hall case. Judges Valerie Zachary and Allegra Collins will join him on the panel hearing oral arguments later this month. Zachary is a Republican. Collins is a Democrat.
Stein and Briner had taken contrasting approaches toward the timeline for addressing the Stein v. Hall case. Briner asked the Appeals Court to expedite the case. Stein had asked for the court to wait until it issued a ruling in Stein v. Berger. The court set a briefing schedule and scheduled oral arguments in Stein v. Hall before it was clear that the Stein v. Berger decision would be released Wednesday.
A three-judge trial court panel ruled in June that the Republican-led General Assembly had encroached on the Democratic governor’s authority when it created new restrictions on Stein’s power to fill statewide judicial vacancies. But the same panel sided with lawmakers on the Utilities Commission appointment shift and the Building Code Council changes.
Stein and top lawmakers appealed the panel’s mixed decision.
Superior Court Judges James Ammons, Imelda Pate, and Graham Shirley heard two hours of arguments in the Stein v. Hall case 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.
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. Cooper is now seeking the Democratic Party’s nomination for North Carolina’s 2026 US Senate race.
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