Gov. Josh Stein, Treasurer Brad Briner, and top legislative leaders faced a deadline Friday to offer additional written arguments ahead of their Nov. 10 clash at North Carolina’s top court.
Stein is challenging state laws that placed new restrictions on his power to fill statewide judicial vacancies and limited his appointments to multiple North Carolina boards and commissions.
The North Carolina Supreme Court has set aside 2 ½ hours next month to hear oral arguments in cases titled Stein v. Berger and Stein v. Hall. The lawsuits pit the Democratic governor against Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell.
The governor’s brief had not been posted online as of 5:15 p.m.
State legislative leaders filed two new briefs Friday.
One challenged Stein’s arguments about filling vacancies on the state Supreme Court and Court of Appeals. Senate Bill 382 in 2024 required that the governor must fill a vacancy by choosing one of three people recommended by the departing judge or justice’s political party.
Stein based his opposition to the change on Article IV, Section 19 of the state constitution. He labeled the targeted provision of SB 382 as unconstitutional on its face.
“[A]ppellate vacancies are still filled by appointment of the Governor, and nothing about the term of the appointed office changes,” legislative leaders’ lawyers wrote Friday. “The Governor asks for more. He reads Section 19 not as a duty to fill a vacancy until the People can act for themselves, but as an exclusive power to install jurists who share his views and priorities — a power he says the General Assembly infringes by limiting his choice of nominees on political grounds.”
“In other words, the Governor would convert a duty of his office into an explicit check on the General Assembly’s plenary power to set qualifications for appointees or to define the pool from which he appoints,” lawmakers’ brief continued. “The constitutional text will not bear that weight, and the Governor’s arguments fall well short of overcoming the presumption of constitutionality and the demanding standard for a facial challenge.”
The second legislative brief rebutted Stein’s arguments about changes to his appointments to state boards and commissions. The governor objected to changes that shifted one or more of his appointments to other members of the elected Council of State. In each case, the Republican-led General Assembly shifted an appointment to a Republican member of that council.
“Contrary to the Governor’s claims, the Legislature’s changes to the seven boards and commissions upheld below do not violate the separation of powers,” legislators’ lawyers wrote.. “Nor do they reflect an effort to impose what the Governor calls ‘legislative tyranny.’ Instead, they represent a legitimate exercise of the General Assembly’s express and plenary power to organize — and reorganize — State agencies and assign duties among the independently elected constitutional officers who serve on the Council of State and comprise our State’s multi-member, ‘plural’ executive branch.”
“Indeed, the executive branch continues to hold a majority of appointments to each of the boards and commissions the Governor challenges at this stage of his appeal,” the brief continued.
“To succeed on a facial challenge, the Governor must show that an express provision of the Constitution explicitly prohibits the legislation at issue,” the legislative leaders argued. “But no provision of the Constitution prohibits the General Assembly from allocating statutory appointments between the Governor and other members of the Council of State. Nor does the Constitution require that the Governor hold a majority of the appointments over these boards and commissions.”
“To the contrary, the Constitution explicitly authorizes the General Assembly to assign duties to various members of the Council of State, to organize State agencies, and to prescribe the functions, powers, and duties they will perform,” the brief continued.
Briner is defending a state law that shifted one of the governor’s three state Utilities Commission appointments to the treasurer. State legislators appoint the other two members of the five-member commission.
Both a three-judge trial court panel and the state Appeals Court upheld the shift of one Utilities Commission appointment to Briner.
“Governor Stein insists that Treasurer Briner cannot appoint a single one of the five members of the Utilities Commission,” Briner’s lawyers wrote Friday. “He believes that the Governor is the lone executive official who can make such an appointment. He asserts that the constitution requires gubernatorial domination of the Utilities Commission, and the General Assembly was wrong to empower the Treasurer to appoint one of its commissioners.”
“Nothing in our constitution says the Governor must control the Utilities Commission,” Briner’s brief continued. The state Supreme Court ruled in 2025 “that the constitution provides for three categories of executive powers: constitutionally assigned powers, powers assigned by law, and powers inherent in an executive office. Thus, for the Governor to have a constitutional right to control the Utilities Commission, he must show that his power to appoint the majority of the commissioners falls within one of these three categories. The Governor is unable to do so.”
Stein is asking the state Supreme Court “to embrace three novel principles to govern the diffusion of executive power under our constitution,” Briner’s lawyers wrote. “These principles, if accepted, would require this Court to hold that much of the current structure of the executive branch is unconstitutional. But each argument is flawed, so there is no need to inject chaos into the state’s laws.”
“First, the Governor insists that if a power is not inherent in the office of a member of the Council of State, then the power must be assigned to the Governor,” according to the treasurer’s brief. “This argument is an attempt to invert the Court’s [2025] decision in Stein v. Berger. This argument also contradicts the constitution’s express text, which empowers the legislature to prescribe the duties of the members of the Council of State. In other words, executive branch officials can be given any powers that are not inherent in another official’s office.”
“Second, the Governor argues that executive power cannot be split between two different members of the Council of State,” Briner’s lawyers wrote. “This argument is nothing but an attempt to backdoor the unitary executive theory of the United States Constitution into the North Carolina Constitution. North Carolina has consistently chosen a plural executive model in contrast to the federal Constitution’s unitary model.”
“Finally, the Governor tries to limit the legislature’s power to let a Council of State member appoint a member of a commission that is housed, for administrative convenience only, within a ‘cabinet’ department of the Governor,” the treasurer’s brief added. “This argument has no constitutional support. The constitution does not create a cabinet for the Governor to head at all; the so-called cabinet agencies are legislative creations. The constitution assigns the ultimate responsibility for structuring the executive branch to the legislature. That the legislature decided to administratively house the Utilities Commission within the Department of Commerce has no constitutional relevance.”
All five living former North Carolina governors back Stein in his court battle with top legislative leaders and Briner.
Democrats Mike Easley, Bev Perdue, and Roy Cooper joined Republicans Jim Martin and Pat McCrory in filing a friend-of-the-court brief in September supporting Stein.
“The former Governors of North Carolina have a strong interest in these cases: their interest in preserving the executive power, status, and dignity that the Constitution confers on the Office of the Governor,” according to a court filing.
“Other than Governor Stein, they are the only five living individuals who have been entrusted with the State’s executive power … and served as ‘our state’s chief executive,’” the document continued. “That unique, shared experience, spanning from 1985 to 2024, has given the former Governors a deep understanding of how the separation of powers works in the real world.”
“Although the former Governors’ affiliation is bipartisan (two Republican and three Democratic former Governors), their interest is nonpartisan,” the former governors argued. “After all, these cases are about the separation of powers — a bedrock constitutional principle that transcends politics.”
“The former Governors strongly agree with Governor Stein on the merits of these cases,” the document added. “But as a threshold issue, the former Governors wish to emphasize the need for the Court to actually decide these cases on the merits — something that the Legislative Defendants and the State Treasurer are asking this Court not to do.”
The former governors argue that the “political question” argument supported by top lawmakers and Briner “should fail here.”
The political-question doctrine suggests that courts should avoid addressing constitutional disputes that should be settled instead by government’s executive or legislative branches.
“[I]nvoking the political-question doctrine in these cases is not only inconsistent with this Court’s history, but it would allow for an entirely different level of mischief between our branches of government,” the former governors’ court filing asserted.
“[T]his Court should decide these cases on the merits, rather than relinquish its judicial power and allow the General Assembly to become the final judge of whether it can take the Governor’s executive power,” the document continued.
The former governors filed their court document a day after University of North Carolina constitutional scholar John Orth filed a request to support Stein on the issue of filling judicial vacancies.
Stein and North Carolina legislative leaders offered the first glimpse on Sept. 2 at arguments they will make when they square off at the state’s highest court in November.
“Article IV of our Constitution erects different regimes for filling vacancies in different judicial offices,” Stein’s lawyers wrote in a brief focusing on judicial vacancies. “The General Assembly may prescribe the process for filling vacancies in some offices, like Magistrates and District Court, Special Superior Court, and Emergency Judges. But for vacancies in other judicial offices, including the Judges and Justices of our Court of Appeals and Supreme Court, the plain text of the Constitution gives the Governor exclusive appointment power and explicitly prohibits the General Assembly from prescribing a different process.”
“That is why in their seminal treatise on the North Carolina Constitution, Chief Justice [Paul] Newby and Professor Orth explain that the Constitution gives the Governor an ‘unfettered power of appointment’ for appellate judicial vacancies,” the court filing continued. Newby is one of the justices who will decide the current dispute.
“Notwithstanding the plain text and well-settled understanding of Article IV, shortly after voters elected Josh Stein Governor, a lame duck General Assembly chose to simply ignore the Constitution and enact a law that forces the Governor to fill appellate court vacancies with judges selected not by him, but by unelected political operatives,” Stein’s lawyers wrote.
The disputed law, Senate Bill 382 from 2024, requires Stein to replace a departing judge or justice with one of three names recommended by that jurist’s political party.
A three-judge panel blocked the change, ruling that it “facially violates Article IV, Section 19,” Stein’s lawyers explained. The state Court of Appeals reversed that ruling.
“The Court of Appeals erred,” Stein’s lawyers argued. “The majority decision failed to honor the framers’ deliberate choice to allow the General Assembly to set the process for filling some judicial vacancies but give the Governor the exclusive power to fill others.”
Stein filed a separate brief focusing on appointments to state boards and commissions.
“The Governor’s appeal raises two issues of first impression challenging the ‘complicated and indirect measures’ that the General Assembly has enacted to increase legislative control over the execution of laws,” Stein’s lawyers wrote.
“First, is the Governor’s executive power fungible with the executive power belonging to other members of the Council of State?” the brief explained. “For four of the boards and commissions at issue in this appeal, all of which are housed in departments led by the Governor’s Cabinet, Legislative Defendants have provided the executive branch with appointment, supervision, and removal power over a majority of members, but no single executive has control.”
“Legislative Defendants have assigned a near-majority of appointments to themselves and transferred some of the Governor’s appointments to Council of State members aligned politically with the legislative majority,” Stein’s lawyers argued. “This design is plainly intended to ensure that executive branch agencies are controlled by a cumulative majority of legislative appointees and allies.”
“Importantly, the General Assembly claims that nothing in our Constitution limits this tactic,” the governor’s lawyers continued. “The General Assembly, in its view, can at any time — even in the lame duck period after an election — change the makeup of a board or commission implementing the substantive law. This gives the General Assembly control over the law’s execution and the ability to substitute its choice over the people’s choice of executive policymaker.”
“Second, may the General Assembly frustrate the execution of the laws by depriving an executive council of the ability to affirmatively act without the cooperation of legislative appointees?” Stein’s brief continued. “For the Residential Code Council and Building Code Council, the legislature has done just that by requiring a supermajority of nine votes for any action to occur.”
“Such a rule would perhaps be permissible if an executive branch official appointed the full supermajority required to act,” the governor’s lawyers argued. “But the Governor — the only executive with appointment, supervision, and removal power over appointees — is limited to only seven appointees (not to mention being further constrained by legislative confirmation of his appointees and for-cause removal restrictions). The Governor thus cannot cause these Councils to act — potentially rendering them inoperable and unable to execute the law.”
The state Court of Appeals upheld appointments changes to some boards and commissions, while striking down others.
Stein’s brief warned that legislative leaders “have already used the lower court’s rulings as approval to continue their effort to control not only the enactment of laws, but also their execution.” The brief cited recent legislation restructuring 13 additional boards and commissions not covered in the Stein v. Berger and Stein v. Hall cases.
“This Court should put an end to this unconstitutional escapade,” Stein’s lawyers argued. “Our
Constitution’s guarantee of separation of powers prevents the General Assembly from controlling the execution of the laws it enacts, whether through its direct appointments or those indirectly selected through politically aligned Council of State members.”
“Legislative Defendants have broken the chain of accountability that is supposed to extend from the people to their elected executive officials by diffusing control in a variety of ways ultimately designed to increase legislative power over the execution of law,” the governor’s brief continued. “This is not the structure and separation of powers that the framers intended, and this Court should reject it.”
While Stein focused his opening briefs on judicial vacancies and board appointment changes upheld in lower courts, Republican legislative leaders used their opening brief to address appointment changes rejected at the state Appeals Court. That court struck down laws changing the makeup of the Commission for Public Health, Board of Transportation, and Economic Investment Committee.
“This case presents a straightforward question: Does the North Carolina Constitution require that the Governor control a majority of appointments to every statutory board and commission created by the General Assembly? The answer is no,” legislative lawyers wrote.
“No provision of the State Constitution expressly prohibits the General Assembly from allocating appointments to statutory boards and commissions as it deems most appropriate — including by retaining some or all of those appointments for itself,” lawmakers’ brief continued. “Yet that is precisely what the Court of Appeals held below, relying on this Court’s split decisions in State ex rel. McCrory v. Berger … and Cooper v. Berger.”
The state Supreme Court decided those cases in favor of previous Govs. Pat McCrory and Roy Cooper in 2016 and 2018.
“Those decisions were wrongly decided and should be overruled,” legislative lawyers argued. “McCrory and Cooper I departed from constitutional text, history, and more than a century of precedent to conjure a new gubernatorial power not found anywhere in the Constitution — the power to make ‘executive policy.’”
The decisions transformed a constitutional provision — the “Take Care Clause” — “from a duty that requires the Governor to follow the law, into a sweeping grant of power that requires he be given ‘enough control’ over every board and commission to ensure it carries out his ‘policy preferences,’” according to the legislators’ brief. “But the Constitution assigns policymaking authority to the General Assembly, not the Governor.”
“And for more than a hundred years, this Court held that appointment is merely ‘a mode of filling the offices created by law’ — not an exercise of the office’s power or control over the appointee,” the brief continued. “The decision how to allocate appointments to statutory boards and commissions — and what mix of perspectives will best ensure that boards and commissions carry out the policies reflected in the State’s laws — is thus a decision that should be left to the People, acting through their representatives in the General Assembly.”
This <a target=”_blank” href=”https://www.carolinajournal.com/stein-briner-legislators-square-off-in-new-nc-supreme-court-filings/”>article</a> first appeared on <a target=”_blank” href=”https://www.carolinajournal.com”>Carolina Journal</a>.<img src=”https://www.carolinajournal.com/wp-content/uploads/2026/01/cropped-cj-favicon-150×150.png” style=”width:1em;height:1em;margin-left:10px;”>
<img id=”republication-tracker-tool-source” src=”https://www.carolinajournal.com/?republication-pixel=true&post=276452&ga4=G-22BQK96JEM” style=”width:1px;height:1px;”>