Filing at top NC court targets precedents supporting governor’s power
The latest court filing in an appointments dispute between Gov. Josh Stein and top legislative leaders directly targets two precedent cases supporting the governor.
The precedents “were wrong the day they were decided,” top Republican lawmakers argued in a state Supreme Court brief filed Monday.
Legislators are asking the high court to take the case Stein v. Berger. It deals with the structure of appointments to seven state boards and commissions.
The North Carolina Court of Appeals issued partial victories in October to both Stein, a Democrat, and GOP legislative leaders. A unanimous all-Republican three-judge appellate panel upheld legislative changes to appointments for the Coastal Resources Commission, Emergency Management Commission, Wildlife Resources Commission, and Residential Code Council.
The same panel ruled for Stein and rejected legislators’ changes to the Board of Transportation, Economic Investment Committee, and Commission for Public Health.
Legislative leaders filed a Nov. 19 petition asking the state Supreme Court to reverse the portion of the Appeals Court’s decision that favored the governor.
Stein responded on Dec. 2. He asked the Supreme Court not to take the case. If justices consider Stein v. Berger, though, the governor asked them to revisit the portion of the Appeals Court decision favoring lawmakers.
Legislators’ latest court filing supports the governor’s request to review all seven boards “so that all may be addressed at once and under the same standard,” their lawyers wrote.
The latest court filing disputes the governor’s argument that two precedent cases — McCrory v. Berger in 2016 and Cooper v. Berger in 2019 — should determine the outcome of the latest appointments dispute. The court filing refers to the Cooper case as “Cooper I” since other court battles carried that same title.
The two prior opinions named Stein’s immediate predecessors, Republican Pat McCrory and Democrat Roy Cooper, as plaintiffs. In all three cases, Senate Leader Phil Berger, R-Rockingham, is named as lead defendant.
The state Supreme Court ruled in both targeted precedent cases that the General Assembly overstepped its authority in limiting the governor’s power.
In McCrory, the high court ruled that the General Assembly violated the state constitution when it gave itself a majority of appointments to new state Oil and Gas, Mining, and Coal Ash commissions. In Cooper I, the Supreme Court rejected the General Assembly’s plan to take over the governor’s appointments to a reconfigured State Board of Elections. That board would have split elections board membership evenly between the two major parties, rather than allow the governor to appoint a majority from his party.
The current appeal “raises the more fundamental question whether McCrory and Cooper I were correctly decided in the first place,” legislative lawyers wrote.
“McCrory and Cooper I are badly flawed decisions that cannot be squared … with constitutional text, history or precedent,” the brief continued. “The Court’s decisions in those cases break with the ‘fundamental approach according to which North Carolina’s courts evaluate a law’s constitutionality,’ and seek to enforce an implied, unwritten limit on the General Assembly’s power to structure State government and appoint statutory officers.”
Top lawmakers quote the Cooper case’s dissent, authored by current Chief Justice Paul Newby. He warned that “the Court’s decisions in McCrory and Cooper I ‘violate[ ] the very separation-of-powers principle [they] claim[] to protect’ by thrusting the judiciary into the legislative and political process and creating in the Governor a ‘sweeping’ power ‘to implement [his own] personal policy preferences.’”
“McCrory and Cooper I represent a fundamental break with this Court’s prior jurisprudence as well as the standards that govern this Court’s exercise of judicial review,” legislative lawyers argued. “Those decisions conjured, and then aggrandized, a previously-unannounced power in the Governor, reasoning that when the Take Care Clause says that ‘[t]he Governor shall take care that the laws be faithfully executed,’ it really means that the Governor must have the power to carry out his own ‘views and priorities’ even if they conflict with those of the General Assembly.”
“That notion, and the conclusion that it serves as an unwritten limit on the General Assembly’s otherwise plenary power to reorganize administrative agencies and determine who appoints statutory officers, cannot find any support in our Constitutional text, history, or precedent,” the brief continued.
“Our Constitution locates policy-making power in the General Assembly, not the Governor,” legislative lawyers argued. “And it imposes upon the Governor a duty to take care that the General Assembly’s laws be faithfully executed, not a power to execute the laws according to his policy preferences.”
“McCrory and Cooper I thus flip the script and reverse balance of power that has served as the foundation of our system of separated powers,” the brief added.
Stein’s court filing earlier this month explained why he believes the state Supreme Court should avoid the Stein v. Berger appointments dispute.
“In this separation-of-powers dispute, the challenged legislation presented the trial court and Court of Appeals with several different statutory structures that increased legislative involvement in the appointment, supervision, and removal of decision-makers in executive agencies,” Stein’s lawyers wrote. “The lower courts upheld some of those statutory structures and rejected others. Legislative Defendants now ask this Court to revisit the constitutionality of each of the statutory structures that were invalidated.”
The dispute “does not involve a substantial constitutional question,” the governor’s lawyers argued. Nor does the case provide other good reasons for a state Supreme Court review.
Top lawmakers are asking the high court to “reverse McCrory and Cooper I,” Stein’s lawyers wrote. Those precedent cases from 2016 and 2019 gave previous governors victories over the General Assembly in separation-of-powers disputes.
“But there is no good reason to do that,” the governor’s court filing argued. “McCrory and Cooper I supply an established, effective framework for analyzing separation-of-powers claims that should not be disturbed.”
If the state Supreme Court decides to take the case, Stein “conditionally petitions” justices to review the four boards upheld by the Appeals Court.
“If the Court determines that the revised agency structures presented by Legislative Defendants are worthy of its review, … then the same must be true of those presented by the Governor,” Stein’s lawyers wrote. “The Court should not pick and choose which of the seven restructurings it should take up.”
Lawmakers explained last month why they believe the state’s highest court should 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.”
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.
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.
“Filing at top NC court targets precedents supporting governor’s power” was originally published on www.carolinajournal.com.
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