Briner drops Utilities Commission appointment appeal to top NC court

State Treasurer Brad Briner at Council of State Image by Jacob Emmons for Carolina Journal.

State Treasurer Brad Briner is withdrawing his request for the North Carolina Supreme Court to review a legal dispute over his power to appoint a member of the state Utilities Commission.

Briner, a Republican, originally requested the review on Feb. 11. Gov. Josh Stein, a Democrat, filed a petition on the same day asking the state’s high court to review a separate portion of the same court case dealing with judicial appointments.

“Among other things, Governor Stein’s petition sought conditional review of the issue related to the Utilities Commission, an issue on which the Governor lost below. The Treasurer sought review of this same issue, on which he prevailed below,” Briner’s lawyers wrote Friday.

“Upon review of the Governor’s petition, the Treasurer has determined that his own petition is unnecessary,” the latest court filing added.

Stein’s lawyers argued in its Feb. 11 petition that the state Appeals Court upheld a law that violated the governor’s constitutional powers.

Appellate judges split, 2-1, last month in ruling that state lawmakers could place new restrictions on Stein’s choices for filling vacant seats on either of the state’s two highest courts. Appellate judges also upheld a state law that shifted a state Utilities Commission appointment from Stein to Briner.

Prior to 2024’s Senate Bill 382, Stein could fill Appeals Court and Supreme Court vacancies with the qualified person of his choice. SB 382 limited Stein’s choices to one of three names submitted by the political party of the departing judge or justice.

The Appeals Court’s decision overturned a trial court’s ruling favoring Stein in the judicial vacancies dispute.

“The Court of Appeals’ judgment directly involves a substantial question arising under the Constitution of the State of North Carolina, namely whether a mere statute can change the constitutionally established process for filling appellate judicial vacancies,” Stein’s lawyers wrote.

“For 150 years, the consensus view of Article IV, Section 19 was that the Governor’s authority to fill vacancies in judicial offices under the provision was limited only by other provisions of Article IV itself. That is what the General Statutes reflected until Senate Bill 382,” according to the court filing. “It is what this Court explained in Baker v. Martin [in 1991]. It is why Chief Justice Newby and his co-author Professor Orth observed that the Governor enjoys ‘unfettered power of appointment’ for appellate court vacancies” in a 2013 book on the state constitution.

“And it is what the General Assembly itself told voters in 2018 during a failed effort to repeal Article IV, Section 19,” Stein’s lawyers argued.

“The Court of Appeals’ decision below departed from this consensus,” the court filing continued. “Reversing a unanimous superior court, a divided Court of Appeals panel held that the General Assembly’s decision to force the Governor to fill appellate court vacancies with judges selected by unelected political operatives did not violate Article IV, Section 19 of our Constitution. That erroneous decision directly involves a substantial constitutional question.”

Briner’s court filing focused on the SB 382’s shift of a Utilities Commission appointment from the governor to the treasurer.

“The Treasurer won below,” Briner’s lawyers acknowledged. “But just technically prevailing can nonetheless be a Pyrrhic victory when the Court of Appeals declines to apply this Court’s precedent. Such a ruling leaves this Court’s constitutional doctrine in jurisprudential limbo and invites continued defiance by governors in future cases.”

The Jan. 7 Appeals Court ruling against Stein produced a party-line 2-1 split, with two Republican judges outvoting a Democratic colleague.

The decision upheld a trial court’s unanimous June 2025 ruling favoring lawmakers on the issue of shifting the Utilities Commission appointment. Briner used that appointment to place Donald van der Vaart on the Utilities Commission in July. Van der Vaart had been the director of the state Office of Administrative Hearings before the appointment. He served as state environmental secretary during the administration of former Gov. Pat McCrory, a Republican.

The Appeals Court decision unanimously affirmed the trial court’s ruling upholding changes to the membership and voting rules of the state Building Code Council.

But the appellate ruling reversed trial judges’ decision favoring Stein on the issue of judicial appointments. A unanimous three-judge Superior Court panel had ruled that lawmakers had overstepped their authority by limiting the governor’s choices when he fills vacancies for the state Supreme Court or Court of Appeals.

No vacancies have occurred on either statewide court during the course of the legal battle.

“The General Assembly did not violate the separation of powers clause by restructuring the Building Code Council and Utilities Commission in Senate Bill 382,” wrote Judge John Tyson for the Appeals Court majority. “The three-judge superior court panel correctly granted the Legislative Defendants’ and the State Treasurer’s motions for summary judgment and correctly denied the Governor’s motion for summary judgment.”

“The General Assembly did not violate the separation of powers clause by requiring the Governor to appoint appellate judges ‘from a list of three qualified persons recommended by the political party executive committee of the political party with which the vacating judge was affiliated when elected,’” Tyson added. “The three-judge superior court panel erred as a matter of law by granting the Governor’s motion for summary judgment and denying the Legislative Defendants’ motion for summary judgment.”

Tyson cited the state Supreme Court’s ruling in the 1991 case Baker v. Martin to support the Appeals Court’s latest decision on filling judicial vacancies.

“The Governor asserts ‘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.’ This assertion is patently incorrect based upon the plain language of the Supreme Court in Baker,” Tyson wrote. “Baker expressly addresses vacancy appointments in Article IV, Section 19, holding ‘N.C. Const. art IV, § 19 does not govern exclusively the appointment of district court judges.’”

“In Baker, the Supreme Court of North Carolina rationalized and held the phrase ‘in a manner prescribed by law’ grants the General Assembly ‘some part to play’ in the appointment of judges,” Tyson added. “The Governor’s argument is overruled.”

Judge Valerie Zachary joined Tyson’s opinion. Both are Republicans.

Judge Allegra Collins, a Democrat, agreed with the portion of Tyson’s ruling upholding legislative changes to the Building Code Council. She disagreed with her colleagues on both the Utilities Commission appointment and judicial vacancies.

“The Utilities Commission is ‘an administrative board or agency’ that was ‘created for the principal purpose of carrying out the administration and enforcement of’ the Public Utilities Act,” Collins wrote. “It investigates utilities, issues certificates of public convenience, and approves transfers of franchises. These are quintessential executive tasks. Because the Commission is an executive agency, the Governor must retain ‘enough control’ over the Commission to ensure that it faithfully executes the law.”

Collins rejected lawmakers’ argument that moving one of Stein’s commission appointments to Briner allowed the executive branch to continue appointing three of the commission’s five members. Legislative leaders appoint the other two members.

“[T]he Treasurer’s appointment is not wholly an exercise of executive power; it exists only because the General Assembly gave it to him, and the General Assembly may take it away,” Collins wrote. “The General Assembly’s asserted authority to reassign appointments among Council of State members at any time, including immediately after an election, for any reason, or no reason at all, gives the General Assembly the power to determine which executive official controls the swing vote on the Commission, including the swing vote on the selection of the chair.”

“This creates the separation‑of‑powers danger that McCrory forbids: legislative dominance over the execution of the laws,” Collins added, citing the state Supreme Court’s 2016 decision in McCrory v. Berger.

Collins also objected that Briner’s appointment “bears no relationship to the Treasurer’s constitutional role.” She argued that the McCrory precedent “requires the Governor to control agencies housed in Cabinet departments.” The Utilities Commission is housed in the state Department of Commerce, a Cabinet department controlled by Stein.

The dissent also critiqued the majority’s decision about filling judicial vacancies. “Under the Judicial Vacancy Provision, the political party executive committee – not the Governor – chooses which three individuals will be eligible for appointment,” Collins wrote. “The Governor may conclude that each of the three is unqualified; he nonetheless must appoint one of them, so long as they satisfy the minimal constitutional prerequisites of age and bar membership. His ‘choice’ is reduced to selecting the least objectionable of three individuals pre-screened by partisan actors.”

SB 382 combined Hurricane Helene relief with a series of changes to state government’s structure. Lawmakers approved the measure in December 2024 over then-Gov. Roy Cooper’s veto. Cooper is now seeking the Democratic Party’s nomination for North Carolina’s 2026 US Senate race.

“Briner drops Utilities Commission appointment appeal to top NC court” was originally published on www.carolinajournal.com.