North Carolina’s highest court could have the final say about a dispute over state government appointments. The legal battle pits the state’s Democratic governor against Republican legislative leaders.
Two lower courts have offered partial victories to both Gov. Josh Stein and top lawmakers. Now legislators are asking the North Carolina Supreme Court to give them a complete victory.
The legal battle stretches back to 2023. Then-Gov. Roy Cooper sued Republican lawmakers over two bills that changed appointment structures for seven boards and commissions. In each instance, the appointment shift reduced the governor’s role.
A bipartisan three-judge trial court panel delivered a mixed decision in February 2024. The judges upheld appointment changes for five targeted groups: the Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission, Commission for Public Health, and a new Residential Code Council. Meanwhile, the court ruled for Cooper and rejected changes to two other groups: the Economic Investment Committee and Board of Transportation.
Each decision depended on whether trial judges believed the appointment changes encroached on the governor’s constitutional authority.
Both sides appealed the ruling. Stein took Cooper’s place as plaintiff this year.
An all-Republican panel of the North Carolina Court of Appeals heard arguments in the case, Stein v. Berger, in February. An Oct. 15 decision tilted the outcome slightly more toward the Democratic governor. Appellate judges agreed with the trial court’s decision about six of the seven boards, while rejecting proposed changes to the Commission for Public Health.
Legislative leaders filed a Nov. 19 petition asking the state Supreme Court to take the case. Lawmakers hope justices will uphold changes to all seven boards. Republicans outnumber Democrats, 5-2, on the high court.
The Appeals Court’s decision “directly interferes with the General Assembly’s express and plenary power to determine how the agencies of State government should be structured,” lawmakers’ lawyers argued.
“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,” the petition continued. “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,” the petition added.
The appellate decision “erroneously enjoins legislation designed to check the exercise of executive power and interferes with the General Assembly’s legitimate exercise of its constitutional authority,” legislative lawyers wrote.
Lawmakers seek clarity about two precedent cases stemming from earlier battles between the General Assembly and the governor’s office. Since the state Supreme Court decided those cases, known as McCrory (2016) and Cooper I (2018), “Governor Stein and his predecessor have numerous lawsuits seeking to consolidate their power,” legislative lawyers argued.
The appointments dispute presents an opportunity to distinguish clearly between legislative and executive authority.
Lower courts upheld appointment transfers from the governor to fellow members of the elected Council of State. In each case, the Republican-led legislature took an appointment from the Democratic governor and gave it to a GOP official such as the insurance or agriculture commissioner.
Cooper and Stein argued that this type of appointment shift violated the state constitution. All six judges who have considered the case have disagreed. Since Council of State members are part of the executive branch, judges determined that the executive maintained the same level of control over appointments before and after challenged changes.
Both the trial court and Appeals Court cast more doubt on other appointment shifts. With the 13-member Commission for Public Health, for example, the General Assembly removed four of the governor’s nine appointments. The North Carolina Medical Society maintained its existing four appointments, while the legislature gained four appointments at the governor’s expense. Trial judges endorsed the plan, but appellate judges struck it down.
Lawmakers hope the state Supreme Court will settle the debate. A decision from North Carolina’s highest legal authority could endorse the General Assembly’s recent approach toward exercising its appointment power. Or justices could rule that legislators have strayed too far from the constitution’s command to separate government powers.
Any final decision from the judicial branch could influence long-term relations between North Carolina’s chief executive and its lawmaking body.
Mitch Kokai is senior political analyst for the John Locke Foundation.