Lawmakers ask top NC court to consider appointments dispute
Top North Carolina legislative leaders are asking the state Supreme Court to take up a dispute between the General Assembly and governor over appointments to seven state boards and commissions.
The North Carolina Court of Appeals issued a mixed ruling on Oct. 15 for the executive and legislative branches. The court upheld legislative changes to appointments for four state boards. But appellate judges struck down changes to the Board of Transportation, Economic Investment Committee, and the Commission for Public Health.
Gov. Josh Stein challenged changes to appointments for all seven boards.
Now legislative leaders are petitioning the state’s highest court to take the case.
“The Court of Appeals’ judgment enjoining the changes the CPH, BOT, and EIC directly interferes with the General Assembly’s express and plenary power to determine how the agencies of State government should be structured,” lawmakers’ lawyers wrote in Wednesday’s petition. “As this Court has consistently held, because the General Assembly acts as the agent of the People, it retains all powers not expressly prohibited by the Constitution. As a result, the General Assembly has ‘broad authority to reorganize the executive branch,’ which includes the power to determine who will appoint individuals to the statutory boards and commissions the General Assembly creates as well as to reserve that power for itself.”
“The Court of Appeals’ decision prevents the General Assembly from exercising that power, effectively denying the People the ability to structure State government as they see fit and ensure statutory officers carry out their duties in a manner consistent with the policies reflected in the State’s laws,” legislative leaders’ lawyers wrote.
The unanimous decision from an all-Republican appellate panel in Stein v. Berger represented a slight change to the ruling a three-judge trial court panel issued in February 2024. That panel had upheld changes to five boards while rejecting changes to two others.
Then-Gov. Roy Cooper filed suit in 2023 against changes to all seven boards. Stein has pursued the case against legislative leaders since he took office this year.
The appellate decision affirmed the General Assembly’s changes to appointments for the Wildlife Resources Commission, Emergency Management Commission, Coastal Resources Commission, and Residential Code Council.
The ruling favoring Stein’s arguments about the Commission for Public Health marked the only change from the 2024 trial court decision. The governor had challenged a state law shifting four of his nine appointments to the 13-member board to the General Assembly.
“Despite retaining greater appointment and removal power than the General Assembly following the CPH’s restructuring, the Governor appoints and removes five members while the General Assembly and North Carolina Medical Society appoint and remove a combined eight members,” Judge Jeff Carpenter wrote. “Even though the North Carolina Medical Society is a nongovernmental organization, its control, when combined with the control the General Assembly removed from the Governor and vested in itself, restricts the Governor’s majority-appointment power, supervisory ability, and influence over the CPH.”
“By giving itself control over four members previously controlled by the Governor, where the North Carolina Medical Society already controls four members, the General Assembly has effectively restricted the Governor’s control to less than half of the CPH,” Carpenter wrote. “Consequently, the General Assembly has ‘prevent[ed] another branch from performing its constitutional duties.’ Indeed, when a majority quorum is required ‘for the transaction of business’ and the Governor only controls five of thirteen members, the executive branch cannot take care that the laws be faithfully executed as there is no guarantee that the members from the North Carolina Medical Society will support the Governor’s policy preferences.”
The Appeals Court agreed with the trial court panel that lawmakers violated the constitutional separation of powers with changes to appointments for the transportation board and the Economic Investment Committee, which awards targeted tax incentives to recruited companies.
Appellate judges rejected Stein’s arguments against changes to the state commissions addressing the environment, wildlife, and the coast. Lawmakers shifted appointments to those commissions from the governor to the commissioners of agriculture and insurance, both Republicans.
“While the Governor does not directly appoint a majority of each commission’s members, the executive branch holds majority-appointment power,” Carpenter wrote. “In fact, the 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. 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.”
Stein challenged a shift of some functions from the Building Code Council, a seven-member group appointed completely by the governor, to a new 13-member Residential Code Council housed within the Department of Insurance. The governor appoints seven members to the new group, including the chair. The General Assembly appoints the other six members. 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.”
“Given the quorum requirement, it is not as though the General Assembly’s six appointed members can take action without the approval of at least three of the Governor’s appointed members,” Carpenter added. “As the General Assembly did not violate separation of powers, the panel did not err by concluding that the restructuring of the BCC was constitutional.”
Judge John Tyson joined Carpenter’s opinion. Judge Thomas Murry wrote “I fully concur with the majority’s well-reasoned opinion,” but offered additional thoughts about the dispute.
Murry used his concurring opinion to “defend the methodological interpretation most suited to the task of discerning the relevant constitutional provisions at issue — original public meaning based on analogical reasoning from text, history, and precedent.”
The panel heard oral arguments in the case in February.
Stein believes the restructured boards violate the state constitution’s separation of government powers, lawyer Jim Phillips argued during a special Appeals Court session at the Campbell Law School. The lawsuit is designed to “protect against the accumulation of too much power in one branch of government,” he said. The case is about “respecting and protecting the genius of our republic.”
Phillips referenced Stein’s November election victory. Taking away his appointment powers “makes a mockery of the people’s vote,” he said. “How are they to demand accountability?”
In the case of some challenged boards, lawmakers shifted some of the governor’s appointments to the state agriculture and insurance commissioners. Both are now Republicans. In those cases, executive branch officials still control the majority of board appointments.
Stein argues that “the governor and only the governor” can exercise appointment authority over the boards, argued Matthew Tilley on behalf of legislative leaders. “That doesn’t square with the history, text, or structure” of the boards and laws involved in the dispute.
The panel fired questions at both lawyers.
When Phillips argued that court precedents called for the governor to maintain “enough” control over board appointments, Murry responded, “What’s ‘enough’ control?”
As Phillips discussed appointment changes to the state Environmental Management Commission, Carpenter asked, “Can the General Assembly abolish the Environmental Management Commission?” “Yes,” Phillips responded.
If the General Assembly has the power to create or repeal the targeted boards, what about its power to “amend or modify” them, Tyson asked.
Cooper filed suit in 2023 to challenge Senate Bill 512 and House Bill 488. He objected to changes that took appointments away from the governor’s office.
The three-judge Superior Court panel upheld changes lawmakers made to the appointment process for the state Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. The same panel rejected lawmakers’ changes to the state’s Economic Investment Committee and Board of Transportation.
While Cooper was still in office, all five living former North Carolina governors filed a brief supporting the governor’s arguments in the dispute.
“As the only living former Governors, they take great issue with the notion that the General Assembly can take away the Governor’s executive power, ‘divide’ it up, and ‘allocate’ it to members of the Council of State — the argument that the Superior Court accepted from the General Assembly,” the governors’ lawyers wrote. “[O]nly by disregarding Article III’s text, history, and electoral realities could the Superior Court’s rationale be upheld.”
The John Locke Foundation and North Carolina Institute for Constitutional Law filed a competing brief supporting lawmakers’ legal arguments.
“The Governor’s across-the-board challenge to SB 512 and HB 488 hinges on a theory that the General Assembly may not deprive a governor of any power or jurisdiction of the executive branch,” wrote NCICL’s Jeanette Doran. “Not only is that notion inconsistent with the General Assembly’s power to assign the duties of most executive branch constitutional officers, but it is also unsupported by the language of the Executive Vesting Clause which … contains no express restriction on the General Assembly.”
“If drafters had intended to stop the General Assembly from legislating on the assignments of authority within the executive branch merely because executive power is ‘vested’ in the Governor, then the drafters would have included some language stating the General Assembly had no power to deprive the Governor of any power or jurisdiction that belongs to the entirety of the executive branch. But they didn’t,” Doran added.
“In fact, the constitution assumes the General Assembly has the power to make appointments,” Doran wrote.
“Lawmakers ask top NC court to consider appointments dispute” was originally published on www.carolinajournal.com.
