Battle over judicial, utilities appointments reaches NC Appeals Court
North Carolina’s second-highest court wrestled Tuesday with a constitutional battle among Gov. Josh Stein, state legislative leaders, and Treasurer Brad Briner over government appointments. Oral arguments extended more than 20 minutes longer than normal as judges questioned lawyers on all sides of the Stein v. Hall dispute.
“At issue before the court is a legislative attempt to expand legislative powers beyond what the constitution permits,” argued lawyer Dan Smith on behalf of Stein, a Democrat, before the North Carolina Court of Appeals.
The General Assembly’s action “is constitutional unless the governor can show an express prohibition in the constitution against it,” argued lawyer Martin Warf on behalf of Republican state legislative leaders.
The Democratic governor challenges three recent changes to state law. One limits his choices when filling statewide judicial vacancies. A second shifts one of his state Utilities Commission appointments to Briner, a Republican. The third involves changes to the membership and voting rules for the state Building Code Council.
In June a unanimous three-judge trial court panel ruled in favor of Stein in the judicial appointments dispute. The same panel sided with state lawmakers and Briner in the conflict over the utilities appointment and Building Code Council changes.
Oral arguments focused mainly on judicial appointments.
Senate Bill 382, approved in December over then-Gov. Roy Cooper’s veto, requires the governor to fill statewide judicial vacancies with one of three names recommended by the political party of the departing judge or justice. Prior to SB 382, the governor faced no partisan limitation.
“This is not a question of legislative policy,” Smith argued. “It’s a question of constitutional balance of powers.”
“The ultimate appointee, if this is allowed to take effect, will be someone that partisan insiders have chosen,” Smith added. “That’s not something that the people want.”
Smith noted that North Carolina voters rejected a 2018 state constitutional amendment that would have made the same change in judicial appointments.
Warf responded that the North Carolina Constitution gives the General Assembly the authority to change the process of filling judicial vacancies.
“The specific language of Articles II, III, and IV confirms that the legislature — not the executive or judicial branches — wields plenary power,” Warf said. “Because of that, … we will require a constitutional limitation on the General Assembly to be explicit in the text of the constitution and demonstrated beyond a reasonable doubt.”
Judge Allegra Collins, a Democrat, questioned Warf’s argument that Article IV did not limit the General Assembly’s ability to restrict the governor’s judicial choices.
“It’s your contention that ‘shall be filled by appointment of the governor’ is not explicit enough that it shall be filled by the appointment of the governor?” Collins asked.
Judge John Tyson, a Republican, asked Warf whether the law would stand if legislators required Stein to fill a judicial vacancy with a lawyer working in Wake County. Tyson extended his hypothetical to appointments recommended by the Charlotte mayor or the candidate the governor defeated in the last election.
“I still think that would be OK,” Warf said. “I do not think that to be a very wise move or what the legislature would pass, but constitutionally speaking there is an opportunity for choice there.”
Judge Valerie Zachary, a Republican, joined the discussion. “Is there … any prohibition in our constitution for the General Assembly to make policy decisions that some people might consider crazy?”
“Well, that’s their right as the legislature,” Warf responded. “Our courts have held before that this court and courts in general do not judge the wisdom of a particular act but just whether it’s constitutional or not.”
“Don’t the people of the state have a ready response if they think this is an unwise act on the part of the General Assembly?” Zachary asked.
“They do. The General Assembly is elected every two years,” Warf said.
The trial court’s ruling in favor of Briner and state lawmakers on the Utilities Commission appointment allowed the treasurer to name Donald van der Vaart to the commission effective July 1. Van der Vaart directed the state Office of Administrative Hearings and served as state environmental secretary under former Gov. Pat McCrory.
Van der Vaart works alongside two gubernatorial appointees and two members appointed by the legislature.
Smith argued that the appointment shift gives the General Assembly too much power over the commission’s work.
“We believe that the treasurer’s appointment is legislative,” he said. “It’s the legislature — directly through its two direct appointments and indirectly through the treasurer — that controls the work of the Utilities Commission.”
Warf rejected that argument. “When you look at the ability to appoint someone, the treasurer has just as much ability to appoint a person to run a Utilities Commission or help run that as the governor. They’re both executive officials.”
Neither side focused on the Building Code Council changes. All parties agreed in recent court-ordered briefs that the Appeals Court’s decision earlier this month in the case Stein v. Berger had resolved that dispute in favor of the General Assembly.
The governor reserved the right to appeal that ruling to the North Carolina Supreme Court.
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.”
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.
“Battle over judicial, utilities appointments reaches NC Appeals Court” was originally published on www.carolinajournal.com.
