NC Supreme Court hears Gov. Josh Stein's challenge of laws limiting his appointment power

RALEIGH, N.C. — The North Carolina Supreme Court on Tuesday heard Democratic Gov. Josh Stein’s challenges to a pair of laws that restrict his appointments to boards, commissions and the state’s appellate courts.

The cases stem from Republican lawmakers’ repeated efforts to weaken the office of the governor, sometimes redirecting those powers to other executive offices held by Republican or to the legislature itself.

In one of Tuesday’s cases, Stein challenges a 2023 law that diminished then-Gov. Roy Cooper’s appointments to various state regulatory boards, including the Board of Transportation and the Environmental Management Commission.

Speaking before the Supreme Court on Tuesday, Stein’s attorney, Eric Fletcher, said the changes would “undermine the structure of a directly accountable executive” and result in a “steadily increasing number of agencies, employees and commissions responsible for executing and enforcing laws” that answer to the legislature.

Lawyers for legislative leaders and Treasurer Brad Briner, a Republican who gained appointments to the Utilities Commission under the new law, argued that it was within the General Assembly’s power to shuffle appointments among the Council of State — the 10-member executive branch that Stein leads.

“If the court agrees with the governor, the organization of state government will be flipped upside down while the state is simply converted into a unitary executive,” Troy Shelton, Briner’s attorney, said.

Justice Richard Dietz, a Republican, questioned how far that power could reasonably go, noting that the legislature could simply reassign an executive’s power after an election if they did not like the candidate that won. After the 2024 elections, the legislature stripped incoming Gov. Stein of his appointments to election boards and transferred them to the newly elected state auditor, a Republican.

“It seems to me like what you’re proposing would allow the General Assembly to really thwart the will of people,” Dietz said.

Dietz, however, also suggested that Stein’s attorney took his argument too far by claiming Stein was the only executive constitutionally required to take care that laws are faithfully executed.

“It feels to me like you’re hedging because you’re trying to preserve as much power for the governor as you can, and in doing so, making bad arguments about what ‘we the people’ meant in our constitution,” he said.

Justices did not indicate when they would issue a decision in Tuesday’s case.

Last year, the Court of Appeals partially ruled in Stein’s favor, finding that the legislature’s changes to three boards, including the transportation board, violated the state constitution. The changes to the remaining four boards, however, were left intact.

Stein now asks the Supreme Court to reverse the legislature’s changes to all the affected boards, arguing that the current structure allows the General Assembly to routinely reassign power to officials who share their political preferences.

“No single executive official has sufficient control over the commissions’ actions to ensure their faithful execution of the law,” Stein’s lawyers argued in a legal brief. “Moreover, even if the people sought to make a change at the ballot box, legislative defendants claim the power to render the people’s votes meaningless by reassigning executive duties in lame-duck sessions.”

Legislative leaders argue that the changes do not violate the constitution’s separation of powers clause.

“Instead, they represent a legitimate exercise of the General Assembly’s express and plenary power to organize — and reorganize — state agencies and assign duties among the independently elected constitutional officers who serve on the Council of State,” they wrote in a legal brief.

In the second of Tuesday’s cases, Stein challenges a law that limits his ability to fill vacancies on the Court of Appeals and the state Supreme Court.

The law states that, when filling vacancies, Stein must choose from a list of nominees selected by the political party of the departing judge.

Judges in North Carolina run for election, but the governor is able to fill vacancies on appellate courts whenever a judge leaves office before their term ends.

Sarah Boyce, an attorney for Stein, said that the state constitution’s framers intended for that power to remain with the elected governor, rather than the unelected leaders of a political party.

“Those individuals ... are not accountable to anyone,” she said. “In most instances, the people of North Carolina do not even know who those people are.”

Boyce also noted that the governor held sole authority to fill appellate vacancies for 150 years before the legislature attempted to limit it.

Martin Warf, an attorney for legislative leaders, said that while the constitution guarantees the governor’s right to make appointments, it doesn’t prohibit the legislature from limiting his choices.

“People understood appointment to mean the choice of doing it, but not where that choice comes from,” he said. “And when you have that silence there, that’s where the General Assembly can come in and fill that silence with a law.”

Multiple justices questioned why the legislature would not attempt to amend the constitution to change the vacancies process, rather than passing a law.

“You do concede that this is something the legislature has never attempted before,” Justice Trey Allen, a Republican, said. “... Given the absence of that history, wouldn’t the prudent thing to have done be to make this a constitutional amendment and submit that to the people?”

“I don’t think it’s necessary to do that,” Warf responded. “The question is not what would be the prudent thing to do, but what is the power of the legislature?”

In a split ruling earlier this year, the Court of Appeals upheld the new law, finding that the General Assembly had not overstepped its authority by limiting Stein’s appointments.

In Stein’s appeal to the Supreme Court he argues that this law empowers “unelected political operatives” rather than the “popularly elected governor.”

Legislative leaders argue that the seat of any departing judge should remain filled by a member of the same political party until the term expires.

“(Stein) reads (the constitution) not as a duty to fill a vacancy until the people can act for themselves, but as an exclusive power to install jurists who share his views and priorities,” they wrote in a legal brief.

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