Constitutional – Gubernatorial Appointments – Separation of Powers

The North Carolina Supreme Court upheld 2024 legislation restructuring executive commissions and modifying the process for filling appellate judicial vacancies, concluding the laws did not violate the state constitution’s separation of powers or judicial appointment provisions.

The Court affirmed in part, reversed in part, and remanded with instructions to enter summary judgment for the Legislative Defendants on all claims.

The case arose from cross-motions for summary judgment before a three-judge superior court panel challenging amendments to statutes governing the Building Code Council and Utilities Commission, as well as Senate Bill 382’s judicial vacancies provision. Under the challenged judicial vacancies law, the Governor must appoint replacement judges from a list of three candidates provided by the political party of the departing judge. The Governor contended these changes violated the separation of powers and judicial appointment clauses, while the Legislative Defendants appealed the panel’s invalidation of the judicial vacancies amendments.

The Court emphasized the strong presumption of constitutionality afforded to legislative enactments and the demanding standard for facial constitutional challenges. It relied on recent precedent, including State ex rel. McCrory v. Berger, Cooper v. Berger, and Cooper v. Berger (Confirmation), which clarify that separation of powers violations occur only when the legislature “unreasonably disrupts” a core executive power by depriving the Governor of “enough control” to faithfully execute the laws.

Applying these principles, the Court held that the Building Code Council restructuring did not violate separation of powers. Citing its prior decision in Stein v. Berger, the Court found that the Governor retained sufficient control through executive appointments and quorum requirements, ensuring the executive branch maintained effective authority over council operations. Similarly, the Court upheld the Utilities Commission amendments, which transferred one appointment power from the Governor to the State Treasurer, an independently elected Council of State member. The Court reasoned that the relevant inquiry is whether the executive branch as a whole retains majority appointment power, not whether the Governor alone does; the Governor and Treasurer together held a majority, and the legislature may allocate duties among Council of State members under the constitution.

Regarding the judicial vacancies provision, the Court reversed the three-judge panel and upheld the statute. Relying on Baker v. Martin, it concluded that Article IV, Section 19 authorizes the General Assembly to prescribe the manner of filling judicial vacancies, including requiring the Governor to appoint from party-generated lists. The Court rejected the Governor’s claim that this impermissibly transferred executive appointment power, affirming the legislature’s authority to structure the process consistent with constitutional requirements.

In sum, the Court upheld the executive commission restructuring and judicial vacancies amendments, reaffirming the legislature’s broad discretion to organize state administrative departments and prescribe judicial appointment procedures, while confirming the Governor retains sufficient executive control to satisfy the state constitution.

Affirmed in part, reversed in part, and remanded.

Stein v. Hall (Lawyers Weekly No. 011-002-26, 50 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (James Floyd Ammons, Jr., J.; A. Graham Shirley, J.; and Imelda J. Pate, J.) Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., Eric Fletcher, Amanda S. Hawkins, and Daniel F. E. Smith, and Wilmer, Cutler, Pickering, Hale & Dorr LLP, by W. Swain Wood, for the plaintiff-appellant. Nelson Mullins Riley & Scarborough, LLP, by D. Martin Warf, Noah H. Huffstetler, III, and Womble Bond Dickinson (US) LLP, by Matthew F. Tilley, Mike Ingersoll, and Emmett Whelan for the defendant-appellants. Dowling PLLC, by Craig D. Schauer and Troy D. Shelton, for the intervenor-appellee. North Carolina Court of Appeals.