- The North Carolina Court of Appeals listened Monday to arguments for and against state laws changing appointments to seven state boards and commissions.
- Gov. Josh Stein took over his predecessor Roy Cooper's legal fight against the changes. Cooper and Stein argue that the appointment changes violate the state constitution by restricting the governor's control over appointed boards.
- A unanimous three-judge Superior Court panel upheld five of the newly restructured boards and struck down two others in February 2024.
North Carolina’s second-highest court listened Monday as lawyers for Gov. Josh Stein and top legislative leaders disputed lawmakers’ ability to limit the governor’s appointment power over seven state boards and commissions.
A unanimous three-judge Superior Court panel upheld the changes to five boards but struck down two others in February 2024. Then-Gov. Roy Cooper, a Democrat, had filed suit against the appointment changes in 2023.
Now Stein, also a Democrat, is asking the Appeals Court to strike down changes to all seven boards. Top Republican legislators also appealed the three-judge panel’s decision. Lawmakers want all seven newly restructured boards upheld.
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.
Appellate Judges John Tyson, Jeff Carpenter, and Tom Murry fired questions at both lawyers. All three are Republicans.
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.
There is no deadline for a decision from the Appeals Court panel.