RALEIGH, N.C. — The governor and top Republican lawmakers have submitted closing briefs in two separation-of-powers cases that the North Carolina Supreme Court will hear on Nov. 10, a week after the general election.
The court has blocked out 150 minutes of argument for Stein v. Berger and Stein v. Hall. Both sides turned in final briefs on Friday, Oct. 30. No new ruling has been issued, and the cases do not affect Tuesday’s election results.
Both cases grow out of Senate Bill 382, which the GOP-led legislature enacted as its 2024 session wrapped up, overriding a veto by then-Gov. Roy Cooper. One provision limits a governor filling some appellate court openings to a shortlist of three candidates supplied by the party of the judge who is leaving. Stein contends that Article IV, Section 19 hands that choice to the governor alone. Legislative leaders reply that the appointment is still his, and that lawmakers are free to set qualifications and a procedure.
The second fight is over who appoints members of state boards that carry out the law. Under the challenged setup, one appointment moved to Republican Treasurer Brad Briner: he now fills one of the three Utilities Commission seats the governor once filled, and the legislature fills the other two. Stein also objects to how votes work on the two state code councils for buildings and homes, where a nine-vote requirement, his lawyers say, lets legislative appointees stall decisions.
The state Court of Appeals sided with lawmakers in January. Judge John Tyson wrote that the General Assembly may appoint and confirm statutory officers and affirmed a three-judge panel that upheld the treasurer’s Utilities Commission appointment. In a 2-1 decision the court also upheld the party-list rule for appellate vacancies, with Judge Allegra Collins dissenting on both questions and warning of legislative dominance over how laws are carried out.
Legislative leaders have asked the justices to revisit earlier separation-of-powers rulings involving former Govs. Pat McCrory and Roy Cooper. The Utilities Commission regulates electricity service and rates, and the code councils set building standards used by builders, inspectors and local governments statewide.
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