NC Supreme Court takes two cases pitting Stein against top lawmakers

The North Carolina Supreme Court has agreed to hear two cases that pit Democratic Gov. Josh Stein against the state’s Republican legislative leaders. Both cases involve state laws that removed appointment powers from the governor’s control.

In one case, the governor and top lawmakers dispute the constitutionality of state laws that changed the membership of seven state boards and commissions. The state Appeals Court issued a mixed ruling in the case, agreeing that changes to four state boards could stand while three others violated the North Carolina constitution.

In the other case, Stein challenged the General Assembly’s power to limit his choices when filling statewide judicial vacancies. The second case also involved a transfer of one of the governor’s state Utilities Commission appointments to State Treasurer Brad Briner, a Republican. The state Appeals Court ruled in favor of top lawmakers and against Stein in that dispute.

The state Supreme Court’s petitions list Friday indicated that justices have agreed to hear both disputes, which have been called Stein v. Berger and Stein v. Hall.

Judicial vacancies

Stein asking North Carolina’s highest court in February to reverse the Appeals Court’s decision about his power to fill statewide judicial vacancies. Stein’s lawyers argued that the decision upheld a law that violated the governor’s constitutional powers.

Appellate judges split, 2-1, 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.”

The Jan. 7 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 2025. 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.

Boards and commissions

Stein had asked the North Carolina Supreme Court last December not to take a separate case involving his dispute with legislative leaders over appointments to seven state boards and commissions.

If the high court ended up taking the case, the Democratic governor urged justices to reverse rulings favoring top GOP lawmakers.

The Appeals Court issued partial victories in October 2025 to both Stein and 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.

State Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell, filed a November petition asking the state Supreme Court to take the case. Berger and Hall asked justices to rule that changes to all seven state boards and commissions comply with the North Carolina Constitution.

Stein responded with a court filing opposing the legislators’ request.

“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 decided 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 in their own court filing why they believed 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 their Supreme Court 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.

A 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.

“NC Supreme Court takes two cases pitting Stein against top lawmakers” was originally published on www.carolinajournal.com.