North Carolina House Speaker Destin Hall (R-Caldwell), left, and Senate President Pro Tem Phil Berger (R-Rockingham) speak ahead of Democratic Gov. Josh Stein's State of the State address on March 12, 2025. (Photo: Galen Bacharier/NC Newsline)
The NC Court of Appeals has ruled in favor of the General Assembly over Governor Josh Stein in a challenge involving judicial appointments and a restructuring of the state’s Utilities Commission.
Senate Bill 382 was passed at the end of the 2024 session, with the Republican majority overriding then-Governor Roy Cooper’s veto.
GOP leaders called SB 382 as a “good government” measure and said that transferring the governor’s appointments to other members of the executive branch – all Republicans, notably – maintains the constitutionally required separation of powers.
The Stein administration filed several legal challenges to the law, arguing that the governor should control the majority of appointments to regulatory bodies that carry out the executive branch function of enforcing state law. Stein said the legislation amounted to “partisan power grabs [to] thwart North Carolina voters’ decisions at the ballot box.”
On Wednesday, the court ruled that the General Assembly did not violate the separation of powers clause by restructuring the Utilities Commission and giving Republican state Treasurer Brad Briner, rather than the Democratic governor, the power to appoint members to the commission. Briner used that authority last year to name Donald van der Vaart, a former state Department of Environmental Quality Secretary and a climate skeptic, to the commission.
“The General Assembly can appoint and confirm statutory officers,” wrote Judge John Tyson. “The order of the three-judge superior court panel upholding the State Treasurer’s appointment to the Utilities Commission is affirmed.”
Briner was quick to praise the ruling.
“This is another affirmation that executive branch functions do not sit soley with the governor here in North Carolina. The entire council of state is duly elected by all citizens of the state, and should carry out executive roles and responsibilities,” said Briner in a statement.
In a 2-1 split decision, the appellate court also ruled that the legislature did not violate the separation of powers clause by requiring the governor to appoint appellate judges “from a list of three qualified persons recommended by the political party executive committee of the political party with which the vacating judge was affiliated when elected.”
Attorneys for Stein had argued in a February 2025 filing that “absent a constitutional amendment approved by the people, the constitution leaves no room for the legislature to place restrictions, qualifications or limitations on the governor’s power to fill judicial appellate court vacancies.”
Judge Allegra Collins dissented from the majority opinion in addressing the Utilities Commission appointments and appellate judicial vacancies.
Collins reasoned SB 382 unfairly tips the scales to provide ‘legislative dominance.’
“The General Assembly’s asserted authority to reassign appointments among Council of State members at any time, including immediately after an election, for any reason, or no reason at all, gives the General Assembly the power to determine which executive official controls the swing vote on the Commission, including the swing vote on the selection of the chair,” Collins wrote. “This creates the separation?of?powers danger…legislative dominance over the execution of the laws.”
Last April, the North Carolina Court of Appeals upheld yet another controversial provision in SB 382, which transferred authority over the state’s Board of Elections to the state auditor’s office.
On Wednesday, Senate President Phil Berger celebrated the latest ruling on social media.
“Another victory secured! Despite Gov. Stein’s efforts to weaponize the courts to usurp the General Assembly’s authority, this ruling recognizes reality and proper constitutional order. In North Carolina, the governor is not a king,” Berger posted.
Stein’s office did not immediately respond to a request for comment.
Read the full opinion in Stein v. Hall below.
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