- State Treasurer Brad Briner countered legal arguments Tuesday from Gov. Josh Stein in a court fight involving an appointment to the North Carolina Utilities Commission.
- Stein challenges a provision in a 2024 state law that shifted one of his three commission appointments to Briner. A trial court ruled in favor of Briner.
- A bipartisan three-judge panel of the North Carolina Court of Appeals will hear oral arguments in the case on Oct. 15.
State Treasurer Brad Briner challenged Gov. Josh Stein’s legal arguments Tuesday in a court battle over appointments to the North Carolina Utilities Commission. The state Court of Appeals will hear the case on Oct. 15.
Stein, a Democrat, is challenging a section of 2024’s Senate Bill 382 that shifted one of his three Utilities Commission appointments to Briner, a Republican. A trial court ruled in favor of Briner. He used his new appointment power to name Donald van der Vaart to the commission effective July 1.
The case called Stein v. Hall also involves a dispute between Stein and Republican state legislative leaders over filling statewide judicial vacancies and changing voting rules for North Carolina’s Building Code Council. Stein and top lawmakers face a deadline Tuesday to file briefs in the case.
“Governor Stein insists that Treasurer Briner cannot appoint one of the five members of the Utilities Commission,” Briner’s lawyers wrote Tuesday. “He believes that the governor is the lone executive official who can make such an appointment. He asserts that the constitution requires his domination of the Utilities Commission, and the General Assembly was wrong to empower Treasurer Briner to appoint one … Commissioner.”
“Nothing in our constitution says the Governor must control the Utilities Commission,” Briner’s lawyers continued.
“To control the Utilities Commission, Governor Stein must point to a constitutional provision, statute, or inherent power that requires his control,” the treasurer’s brief added. “He can identify none. As such, the constitution leaves the General Assembly free to take one of the Governor’s appointments to the Utilities Commission and give it to the Treasurer, another member of the Council of State. Governor Stein’s opposition is a political fight to be waged between the political branches; it is not a dispute that can be resolved by the judiciary.”
Appeals Court Judges John Tyson, Valerie Zachary, and Allegra Collins will hear oral arguments in Stein v. Hall next month. Tyson and Zachary are Republicans. Collins is a Democrat.
The Appeals Court announced the hearing date more than a week after rejecting Stein’s request to delay the case.
A three-judge Superior Court panel ruled in Stein’s favor in June on the judicial vacancies issue. The same panel ruled in favor of legislative leaders and Briner on the other portions of the dispute.
Before joining the Utilities Commission, Van der Vaart was director of the state Office of Administrative Hearings. He was secretary of the Department of Environmental Quality under Republican Gov. Pat McCrory.
“The trial court’s order in this case ignores the Separation of Powers Clause and the changes North Carolinians have made to their constitution to empower the executive branch,” Stein’s lawyers argued in a Sept. 12 Appeals Court brief. “First, the court wrongly rejected the Governor’s challenge to Senate Bill 382’s changes to the Utilities Commission.”
In addition to shifting a commission appointment to Briner, SB 382 “grants the General Assembly the power to reject or remove the Governor’s and Treasurer’s appointees,” Stein’s lawyers wrote. “The Commission’s structure — especially in light of the General Assembly’s purportedly unlimited authority to reassign the Treasurer’s appointment to any other executive officer at any time — places the legislature, not the executive, in functional control of the Commission.”
“The trial court similarly erred by rejecting the Governor’s challenge to Senate Bill 166,” the brief continued. “That law allows the General Assembly to appoint enough members to the Building Code Council to prevent it from operating at all, while at the same time restricting the Governor’s ability to remove members from the Council including his own appointees. Such a structure prevents the Governor from fulfilling his constitutional function and therefore violates the Separation of Powers Clause.”
“Ultimately, the challenged provisions permit the General Assembly to control executive bodies, or at least to prevent the executive branch from controlling them,” Stein’s lawyers argued. “That violates the Separation of Powers Clause. The trial court erred in concluding otherwise.”
Stein’s opening brief focused only on the issues he’s contesting at the Appeals Court. The same was true for a brief Republican legislative leaders filed on the same day.
“This case presents a straightforward issue of constitutional interpretation,” lawmakers’ lawyers wrote. “Article IV, Section 19 of the State Constitution provides that certain judicial vacancies (including judges on the appellate courts), ‘shall be filled by appointment of the Governor.’ Nothing in that section prohibits the General Assembly from enacting laws that establish what qualifications judges that the Governor appoints must meet or the process by which his appointment power should be exercised.”
“Because our Constitution is not a grant of power, laws enacted by the General Assembly must be upheld as constitutional unless a challenger can show the law is prohibited by another, express provision of the Constitution,” legislators’ brief continued. “Here, that principle controls. Session Law 2024-57’s amendments to N.C. Gen. Stat. 163-9 establish qualifications for the judges the Governor appoints, including that they be from the same political party (if applicable) and selected using a specified process. Those provisions are consistent with, and not prohibited by, Article IV, Section 19.”
“[T]he three-judge superior court panel erred and this Court should reverse because there is not an explicit limitation on the General Assembly determining the qualifications for a nominee to an appointed judicial vacancy,” lawmakers’ lawyers wrote.
Stein’s lawyers filed a motion on Aug. 15 asking North Carolina’s second-highest court to stay proceedings in the case. Briner and top legislators responded on Aug. 27 with court filings opposing Stein’s motion. Briner had filed a separate motion on Aug. 5 to expedite the appeal.
A Sept. 4 court order formally denied Stein’s motion. Briefing in the case will continue through Oct. 6. “No extensions shall be granted for briefing,” according to the order.
A three-judge trial court panel ruled in June that the Republican-led General Assembly had encroached on the Democratic governor’s authority when it created new restrictions on Stein’s power to fill statewide judicial vacancies. But the same panel sided with lawmakers on two other issues: shifting one of Stein’s state Utilities Commission appointments to Briner and changing voting rules for the Building Code Council.
Stein and top lawmakers appealed the panel’s decision.
Stein had asked the Appeals Court to delay briefing in Stein v. Hall until 30 days after the court issued a decision in a separate dispute between the governor and legislative leaders. The other case, called Cooper v. Berger, also involves a disagreement over appointments to state boards and commissions. A three-judge appellate panel heard oral arguments in Cooper v. Berger on Feb. 17. That panel has not issued a decision.
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.”
The governor challenged a section of 2024’s Senate Bill 382 that requires him to fill statewide judicial vacancies with one of three people recommended by the political party of a departing judge or justice.
SB 382 is an “aberration,” argued lawyer Daniel Smith, representing Stein on the issue of judicial vacancies. By constraining the governor’s choices when filling vacancies on the state Court of Appeals and state Supreme Court, the law “plainly, clearly” violates Article 4, Section 19 of the North Carolina Constitution, Smith added. The governor has enjoyed “unfettered” power over filling the targeted vacancies since 1868.
The governor’s arguments failed to recognize “the nature of legislative power” under the state constitution, responded lawyer Noah Huffstetler. He represented state legislative leaders. Stein needed to cite text in the constitution that “specifically prohibited” the General Assembly from changing the law regarding judicial vacancies, Huffstetler argued.
Before SB 382, the governor appointed three of the Utilities Commission’s five members. Legislative leaders appointed the other two members. The governor also selected the commission’s chair. The challenged law moved one of Stein’s appointments to Briner. SB 382 also removed Stein’s authority to select the chair.
SB 382 combined Hurricane Helene relief with a series of changes to state government’s structure. Lawmakers approved the measure in December over then-Gov. Roy Cooper’s veto. Cooper is now seeking the Democratic Party’s nomination for North Carolina’s 2026 US Senate race.