North Carolina judges issue mixed ruling on governor’s appointment powers

RALEIGH, N.C. (AP) — North Carolina trial judges issued a mixed ruling Tuesday for Democratic Gov. Josh Stein and Republican legislative leaders in Stein’s litigation over recent law changes that eroded the governor’s powers to appoint members to state boards and to fill appeals court vacancies.

A three-judge panel unanimously sided with Stein and struck down as unconstitutional a portion of a law that placed some limits on whom the governor could choose to fill vacancies on the seven-member state Supreme Court and 15-member intermediate-level Court of Appeals.

But the Superior Court judges let stand a pair of provisions that take away some of Stein’s appointments to the state Utilities Commission and Building Code Council.

In a brief order issued after two hours of arguments earlier in the day, Superior Court Judges James Ammons, Graham Shirley and Imelda Pate wrote that Stein “failed to demonstrate, beyond reasonable doubt,” that the alterations involving the two state boards were unconstitutional.

The order, which can be appealed, is the latest result from lawsuits that Stein or his fellow Democrat and predecessor Roy Cooper filed in recent years to attempt to counter measures approved by the Republican-controlled legislature that they say weaken gubernatorial control and the separation of powers between government branches. Several lawsuits have focused on the State Board of Elections.

The state constitution says the governor fills appellate court vacancies. Appointees must be licensed to practice law in North Carolina.

But the law approved last December directed the governor to fill such a vacancy from a list of three people offered by the political party with which the departing judge or justice was affiliated when elected. That limitation wouldn’t apply if the court judge was unaffiliated at the time, or if the party didn’t provide the list quickly.

Stein attorney Daniel Smith told the judges that legal scholars — among them the current chief justice — have said the governor has an “unfettered power of appointment” for these vacancies, which fill positions until the next statewide election.

Shirley pushed back on arguments by Noah Huffstetler — an attorney for House Speaker Destin Hall and Senate leader Phil Berger — that since the constitution doesn’t specifically forbid conditions on these appointments, the legislature can act to add some.

The panel declined to block the latest changes to the Utilities Commission, which regulates electricity, natural gas and other public utilities. Beginning next month, the commission will decrease to five members.

Without the December law, the retooled commission would be composed of three members appointed by the governor and two by the General Assembly. But the challenged law gave one of the governor’s three appointments to the elected state treasurer, currently Republican Brad Briner. His nominee is set to take his post in July.

Stein’s attorneys argued that the change would dilute the governor’s powers and prevent him from controlling the commission to make sure utilities regulations are enforced. But GOP leaders countered that they can assign duties to other statewide elected executive officials known as the Council of State.

Briner, who joined the case to help defend the law, said Tuesday’s decision affirms that “the governor does not have ultimate authority over other duly elected members of the Council of State to carry out their roles and responsibilities as members of the executive branch.”

The panel also let stand General Assembly changes to the Building Code Council, whose members have been appointed solely by the governor.

Under the new law, the governor still would appoint seven of the 13 members, with legislative leaders choosing six. Stein’s lawyers say he’ll lack sufficient control over the revised board because code changes and other action couldn’t be approved unless nine members agree.

Stein said late Tuesday on social platform X that the judges’ decision on judicial vacancies “maintains our state’s separation of powers.” Stein said he was disappointed that they failed to follow similar principles in ruling on the Utilities Commission and Building Code Council.

Pate is a registered Democrat, while Ammons is unaffiliated. Shirley ran unsuccessfully for another court term in 2024 as a Republican. He became a special Superior Court judge this year.

Just last week another three-judge panel dismissed a lawsuit filed by Stein that challenged another law from December directing that current State Highway Patrol Col. Freddy Johnson remain patrol commander until 2030.