NC Supreme Court hears Stein’s appeals of laws stripping governors’ powers

The North Carolina Supreme Court Tuesday heard two cases concerning Gov. Josh Stein’s powers to make appellate court appointments and fill state commission vacancies. 

The Republican-led legislature has worked for years to limit governors’ appointment powers to various boards and commissions. The state Supreme Court’s opinions on these attempts have been mixed. 

One case heard Tuesday was Stein’s challenge of a law requiring that the governor’s appointments to vacant Court of Appeals and state Supreme Court seats be taken from lists compiled by the state Democratic or Republican Party executive committees. The law also requires the appointee to be from the same party as the person who vacated the seat. 

Sarah Boyce, Stein’s general counsel, said the state constitution leaves decisions about those appointments to the governor alone. 

“Once you permit the legislature to insert itself into the process by imposing qualifications, you have taken what the constitution specifically grants the governor and given it to other actors,” she said.

Boyce pointed out that Republican lawmakers themselves said in 2018 that that power rests with the governor.

In 2018, voters rejected a proposed constitutional amendment to change how judicial vacancies are filled. The wording of the amendment said it would “change the process in which the Governor has sole appointment power,” she noted. 

If the legislature believed that the governor had the sole constitutional authority, what changed between 2018 and now to make legislators think they had the authority to do it on their own, asked  Democratic Justice Allison Riggs. 

Martin Warf, an attorney for the legislature, said there’s no way to know why voters rejected the proposed constitutional amendment because it included other changes. 

The law preserves the voters’ partisan choices for judicial seats, Warf said, and there’s no language in the state constitution prohibiting the legislature from creating a nominating pool. 

In the other case, Stein is appealing a law that cuts his appointments on the Environmental Management Commission, the Coastal Resources Commission, the Wildlife Resources Commission, and the Utilities Commission.

Appeals Court sides with NC General Assembly in latest lawsuit over appointment powers

The governor no longer appoints the chairs of the Environmental Management, Coastal Resources, and Utilities commissions. They are elected by commission members. 

Diminishing the governor’s role inhibits his ability as the state’s chief executive to ensure laws are faithfully executed, as required in the constitution, Stein’s lawyer Eric Fletcher argued. 

Lawyers for legislators and Treasurer Brad Briner, who was given a Utilities Commission appointment, said legislators have the option to take appointments from the governor and distribute them to other members of the Council of State, who are all also members of the executive branch.

Every statutory official swears an oath to follow the law, said Matthew Tilley, the lawyer representing legislators. 

The justices did not indicate when they would rule on the cases. 

Stein is also appealing a recent Court of Appeals decision upholding the law allowing the transfer of Board of Elections appointments from the governor to the state auditor.  The Supreme Court has not yet scheduled that case for oral arguments.