- The North Carolina Court of Appeals split, 2-1, in favoring Republican legislative leaders over Democratic Gov. Josh Stein in a dispute over judicial and utilities appointments.
- Wednesday's decision marked a complete victory for GOP lawmakers. Trial judges had supported legislators' shift of one of Stein's state Utilities Commission appointments to Treasurer Brad Briner, a Republican. But the trial court had ruled in favor of Stein on the issue of filling judicial vacancies.
- The ruling prompted a party-line split. Republican judges supported the majority opinion. A Democratic judge dissented.
The North Carolina Court of Appeals has ruled in favor of Republican legislative leaders and against Democratic Gov. Josh Stein in a dispute over appointments to statewide judicial offices and the Utilities Commission.
The ruling Wednesday 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 a Utilities Commission appointment from Stein to State Treasurer Brad Briner, a Republican. Briner used that appointment to place Donald van der Vaart on the Utilities Commission effective July 1. 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.
“This is another affirmation that executive branch functions do not sit solely with the governor here in North Carolina,” Briner said in a prepared statement. “The entire Council of State is duly elected by all citizens of the state to carry out executive roles and responsibilities independent of the governor.”
Wednesday’s 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.
Senate Bill 382 in 2024 called for the governor to fill 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 restriction on statewide judicial appointments.
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.”
Oral arguments extended more than 20 minutes longer than normal as appellate judges questioned lawyers on all sides of the case called Stein v. Hall on Oct. 28.
“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.
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 challenged three recent changes to state law. One limited his choices when filling statewide judicial vacancies. The second shifted one of his state Utilities Commission appointments to Briner. The third involved changes to the membership and voting rules of 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 2024 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.”
Collins 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.
Tyson 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.”
Zachary joined the discussion. “Is there … any prohibition in our constitution for the General Assembly to make policy decisions that some people might consider crazy?” she asked.
“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.
Smith argued that the Utilities Commission 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 court-ordered briefs that the Appeals Court’s decision earlier in October in the case Stein v. Berger had resolved that dispute in favor of the General Assembly.
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 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.