Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
The North Carolina Court of Appeals has rejected Gov. Josh Stein's request to delay a case dealing with appointments to vacant statewide judicial seats and the state Utilities Commission. The dispute pits the Democrat Stein against Republican State Treasurer Brad Briner and GOP legislative leaders.
Stein's lawyers filed a motion on Aug. 15 asking North Carolina's second-highest court to stay proceedings in the case, Stein v. Hall. 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 court order Thursday formally denied Stein's motion. Appellate judges set a Sept. 12 deadline for the first briefs in the case. Briefing will continue through Oct. 6.
"No extensions shall be granted for briefing," according to the order from an unnamed three-judge appellate panel.
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.
Both sides in the dispute appealed the panel's decision.
"This appeal concerns the structure and operation of our government. Thus, for the sake of the public interest, the Treasurer has respectfully asked the Court to expedite this appeal to eliminate potential doubts over the legitimacy of ongoing government operations," Briner's lawyers wrote in opposing Stein's request for a stay.
"The Governor, after successfully expediting the trial court's hearing of this case, has now reversed course and asked the Court to pause this appeal because it might be inconvenient to resolve the Governor's constitutional challenges."
"Swiftness, not delay, is the path forward," the treasurer's lawyers argued.
"Because the Treasurer believes the public interest takes precedence over the Governor's scheduling preferences, a stay should be denied. The Court should instead grant the Treasurer's pending request to expedite the briefing and resolution of this appeal."
Legislative lawyers agreed with Briner that
"this appeal should proceed expeditiously," according to their separate court filing.
While the governor linked the Stein v. Hall case to others currently sitting in the Appeals Court, lawmakers emphasized the
"unique" nature of the dispute involving judicial vacancies. Waiting for a resolution of other cases would have
"no impact on the analysis of whether the new methodology for appointing judicial vacancies is constitutional under different constitutional provisions," lawmakers' lawyers wrote.
Trial judges blocked the planned changes in judicial appointments.
"Whenever a sovereign is prevented 'from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury,'" according to the legislative court filing.
"While that variable may support expediting the review, it certainly does not suggest the appeal should be stalled awaiting a decision that has little to no impact on the substantial part of the present appeal."
Stein asked the Appeals Court to delay briefing in Stein v. Hall until 30 days after the court issues a decision in a separate dispute between the governor and legislative leaders. The other case, called Cooper v. Berger, also involves a dispute 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.
Stein's latest court filing echoed arguments the governor made on Aug. 7. At that time, he opposed Briner's request to expedite the Stein v. Hall appeal.
"Cooper v. Berger, which also concerns statutes restructuring executive branch boards and commissions, involves similar constitutional issues as this case," the governor's lawyers wrote.
"Given the significant factual and legal overlap between Cooper v. Berger and this case, judicial economy and the public interest are best served by staying briefing in this appeal until Cooper v. Berger is resolved," Stein's lawyers argued.
"That decision is likely to have a significant impact on the parties' arguments and positions in this case."
"Indeed, the Court's decision in Cooper v. Berger could resolve the issues pertinent to the Utilities Commission and Building Code Council altogether," the court filing continued.
"A short stay of briefing would also eliminate the risk of a need for supplemental briefing or re-argument if Cooper v. Berger is decided while this appeal is pending."
Cooper v. Berger involves a dispute over changes to appointments for seven state boards and commissions. At the trial court, lawmakers prevailed on five of the seven disputed boards. Stein prevailed on the other two boards. Both the governor and legislative leaders appealed.
"The constitutional issues presented in this case are important and should be determined expeditiously so that the public and regulated entities can have certainty on the state of the law," the treasurer's lawyers wrote on Aug. 5.
"Although the Treasurer does not have a stake in all three issues on appeal, he has an important stake in his appointment authority for the Utilities Commission," Briner's lawyers wrote.
"The commission regulates the public utilities in the state. The public, the regulated utilities, and their customers all depend on a fully functioning commission that can speak with the force of law."
"The Treasurer, while confident that this Court will affirm his ability to appoint a member of the commission, is nonetheless troubled that the Governor's appeal could cast doubt on the commission's work," the motion explained.
That trial court decision allowed Briner to appoint Donald van der Vaart to the Utilities Commission, effective July 1. Van der Vaart is a former state secretary of the Department of Environmental Quality under Republican Gov. Pat McCrory. Van der Vaart most recently led the Office of Administrative Hearings.
Superior Court Judges James Ammons, Imelda Pate, and Graham Shirley heard two hours of arguments in the dispute 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.
