Stein v. Hall

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-745

Filed 7 January 2026

Wake County, No. 25CV004705-910

JOSHUA H. STEIN, in his official capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA, Plaintiff,

v.

DESTIN C. HALL, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES; PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE, Defendants.

Cross appeals by plaintiff and defendants from order entered 24 June 2025 by

Judges James Floyd Ammons, Jr.; A. Graham Shirley; and Imelda J. Pate in Wake

County Superior Court. Heard in the Court of Appeals 28 October 2025.

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 plaintiffappellant.

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 intervenorappellee.

TYSON, Judge.

Joshua H. Stein, in his official capacity as Governor of the State of North

Carolina and Philip E. Berger, in his official capacity as President Pro Tempore of the

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Opinion of the Court

North Carolina Senate and Destin C. Hall, in his official capacity as Speaker of the

North Carolina House of Representatives (collectively “Legislative Defendants”)

appeal from the 24 June 2025 order entered by a three-judge superior court panel.

The order granted in part and denied in part the motions for summary

judgment filed by the Governor, the State Treasurer, and the Legislative Defendants.

We affirm in part, reverse in part, and remand.

I. Background

The North Carolina General Assembly enacted N.C. Sess. L. 2024-49 and N.C.

Sess. L. 2024-57, which amended N.C. Gen. Stat. § 143-136 and N.C. Gen. Stat. § 62-10. N.C. Gen. Stat. §§ 143-136; 62-10 (Supp. 2024). These amendments altered the

structures of and appointments to the Building Code Council and the Utilities

Commission respectively.

Senate Bill 382 amended N.C. Gen. Stat. § 163-9 (“Judicial Vacancies

Provision”), which provides for the appointment and filling of appellate judicial

vacancies on the Court of Appeals and the Supreme Court. N.C. Sess. L. 2024-57 §

3C.1.(a). This section mandates for the Governor to fill appellate judicial vacancies

on the Court of Appeals and the Supreme Court “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.” N.C. Gen. Stat. § 163-9 (Supp.

2024). If no recommendation is received within thirty (30) days or if the departing

appellate judge or justice was not a member of a political party at the time of election,

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the Governor “shall appoint a qualified person to fill the vacancy.” Id.

The Governor filed a verified complaint on 7 February 2025 in Wake County

Superior Court, seeking a declaratory judgment and arguing: Section 3C.1 of Senate

Bill 382 facially violates Article IV, Section 19 of the North Carolina Constitution;

Section 3F.2 of Senate Bill 382 and Senate Bill 166 facially violate Article I, Section

6 the Separation of Powers Clause, Article III, Section 1, the Vesting Clause, and

Article III, Section 5(4), the Faithful Execution Clause, of the North Carolina

Constitution.

The Governor filed a motion for a temporary restraining order, preliminary

injunction, and for transfer of the cause to a three-judge panel for hearing under N.C.

Gen. Stat. § 1-267.1 (2023). The Legislative Defendants filed their answer on 22 April

2025. The superior court granted the Governor’s motion to transfer the case to a

three-judge panel on 24 April 2025. The Chief Justice of North Carolina assigned the

panel of three superior court judges to hear the case.

Bradford B. Briner, in his official capacity as State Treasurer of North

Carolina, intervened and filed a motion for summary judgment on 30 May 2025. The

Governor and the Legislative Defendants also filed motions for summary judgment

on 30 May 2025. The three-judge panel held a hearing on the cross motions for

summary judgment on 24 June 2025. The panel unanimously held the Governor

proved beyond a reasonable doubt the purported amendments to N.C. Gen. Stat. §

163-9 in Section 3C.1 of Session Law 2024-57, the Judicial Vacancies Provision, are

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unconstitutional. The three-judge panel granted the Governor’s motion for summary

judgment and denied the Legislative Defendants’ motion for summary judgment on

this issue.

The three-judge superior court panel also unanimously held the Governor had

not proven beyond a reasonable doubt N.C. Sess. L. 2024-49, which amended N.C.

Gen. Stat. § 143-136, the Building Code Council, and N.C. Sess. L. 2024-57, which

amended N.C. Gen. Stat. § 62-10, the Utilities Commission, were unconstitutional.

The panel denied the Governor’s motion for summary judgment and granted the

Legislative Defendants’ motion for summary judgment on these issues. The

summary judgment order did not mention the State Treasurer’s motion for summary

judgment on the Utilities Commission challenge, resolved in his favor. The Governor

and the Legislative Defendants cross appeal.

II. Jurisdiction

This Court has jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b) (2023).

III. Issues

The Governor argues the three-judge superior court panel erred by denying his

motion for summary judgment challenging the Building Code Council and Utilities

Commission. The Legislative Defendants argue the three-judge superior court panel

erred in denying their motion for summary judgment to uphold the Judicial Vacancies

amendments.

IV. Standard of Review

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North Carolina Rule of Civil Procedure 56(c) allows a moving party to obtain

summary judgment upon demonstrating “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits” show “there is

no genuine issue as to any material fact,” and they are “entitled to a judgment as a

matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2023).

“The party moving for summary judgment bears the burden of establishing

that there is no triable issue of material fact.” DeWitt v. Eveready Battery Co., 355

N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citation omitted). “This burden may be

met by proving . . . an essential element of the opposing party’s claim is nonextant,

or by showing through discovery . . . opposing party cannot produce evidence to

support an essential element of his claim or cannot surmount an affirmative

defense[,] which would bar the claim.” Id. (citation and internal quotation marks

omitted). An order granting summary judgment is reviewed de novo on appeal.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).

We also review de novo a three-judge superior court panel’s ruling on state

constitutional questions. Cooper v. Berger, 370 N.C. 392, 413, 809 S.E.2d 98, 110-11

(2018). “When assessing a challenge to the constitutionality of legislation, this

Court’s duty is to determine whether the General Assembly has complied with the

constitution. If constitutional requirements are met, the wisdom of the legislation is

a question for the General Assembly.” Hart v. State, 368 N.C. 122, 126, 774 S.E.2d

281, 284 (2015).

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“In performing our task, we begin with a presumption that the laws duly

enacted by the General Assembly are valid.” Id. The three-judge panel properly

concluded, “a law will be declared invalid only if its unconstitutionality is

demonstrated beyond reasonable doubt.” Id.

Our Supreme Court has held, when interpreting our State’s Constitution:

“provisions should be construed in consonance with the objects and purposes in

contemplation at the time of their adoption.” State v. Webb, 358 N.C. 92, 94, 591

S.E.2d 505, 509 (2004). “To ascertain the intent of those by whom the language was

used, we must consider the conditions as they existed and the purpose sought to be

accomplished.” Id.

V. Facial Challenge

The Governor’s declaratory judgment action is admittedly a facial challenge

and our review is strictly limited to that basis. “A facial challenge is an attack on a

statute itself as opposed to a particular application.” City of Los Angeles v. Patel, 576

U.S. 409, 443, 192 L. Ed. 2d 435, 443 (2015). Facial challenges are “the most difficult

challenge to mount” successfully. United States v. Salerno, 481 U.S. 739, 745, 95 L.

Ed. 2d 697, 707 (1987).

“[A] plaintiff must establish that a law is unconstitutional in all of its

applications.” Patel, 576 U.S. at 418, 192 L.E.2d at 445 (citation and internal

quotation marks omitted). “In a facial challenge, the presumption [before the trial

court and on appeal] is . . . the law is constitutional, and a court may not strike it

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down if it may be upheld on any reasonable ground.” Affordable Care, Inc. v. N.C.

State Bd. of Dental Exam’rs, 153 N.C. App. 527, 539, 571 S.E.2d 52, 61 (2002).

VI. Building Code Council and Utilities Commission

Our Supreme Court has issued three recent precedents interpreting the

separation of powers clause under the North Carolina Constitution: State ex rel.

McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016); Cooper v. Berger, 370 N.C.

392, 809 S.E.2d 98 (2018); Cooper v. Berger, 371 N.C. 799, 822 S.E.2d 286 (2018)

(“Cooper Confirmation”). We review each in turn.

A. State ex rel. McCrory v. Berger

In McCrory, the Governor challenged the General Assembly’s enactment of and

appointments under the Energy Modernization Act and the Coal Ash Management

Act of 2014. See N.C. Gen. Stat. §§ 143B-290-293-6; 130 A-309.20-309.231 (2014).

The Energy Modernization and the Coal Ash Management Act of 2014 created three

administrative commissions: the Oil and Gas Commission; the Mining Commission;

and, the Coal Ash Management Commission. Id.

The Oil and Gas Commission is housed within the Department of

Environmental and Natural Resources (“DENR”), and it “has the power to

promulgate rules, make determinations, and issue orders consistent with the Oil and

Gas Conservation Act.” McCrory, 368 N.C. at 636-37, 781 S.E.2d at 251 (citation

omitted) (DENR was renamed Department of Environmental Quality, however,

“[b]ecause the Energy Modernization Act and the Coal Ash Management Act predate

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this name change . . . , we will continue to use this superseded name.”). Nine members

comprise the Oil and Gas Commission: three appointed by the Governor and six

appointed by the General Assembly. Id. at 637, 781 S.E.2d at 251 (citation omitted).

The Mining Commission is also housed within DENR. Id. (citation omitted).

It “has the power to promulgate mining rules and affirm, modify or overrule permit

decisions that DENR makes.” Id. The Mining Commission “has eight members: two

appointed by the Governor; four appointed by the General Assembly; the chair of the

North Carolina State University Minerals Research Laboratory Advisory Committee;

and the State Geologist, who is ex officio and nonvoting.” Id.

“The Coal Ash Management Commission is administratively located in the

Division of Emergency Management of the Department of [Public] Safety but is

expressly required to exercise its powers and duties ‘independently,’ without ‘the

supervision, direction, or control of the Division or Department.’” Id. (citation

omitted). The Coal Ash Management Commission “has the power to review and

approve coal ash surface impoundment classifications and closure plans that DENR

proposes” and “has nine members: three appointed by the Governor and six appointed

by the General Assembly.” Id. (citations omitted).

The Governor can remove any member of all three commissions for

“malfeasance, misfeasance, or nonfeasance.” Id. at 637-38, 781 S.E.2d at 251. The

Governor challenged the provisions, which allowed the General Assembly to appoint

members to the commissions under both Article III, Section 5(8) the appointments

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clause and Article I, Section 6, the separation of powers clause.

Chief Justice Martin, writing for the majority of the Court, addressed the

constitutional tension between the legislative and executive branches: “The

Governor’s power to appoint officers under the [appointments clause] continues to

extend only to constitutional officers” and “does not prohibit the General Assembly

from appointing statutory officers to administrative commissions.” Id. at 644, 781

S.E.2d at 255.

The Court’s majority opinion then turned to the separation of powers

arguments and clause, laying out an analytical framework, that is used to accomplish

the task of determining “we must determine whether the actions of a coordinate

branch ‘unreasonably disrupt a core power of the executive.”’ Id. at 645, 781 S.E.2d

at 256 (citing Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2021)). Article

III, Section 5(4) of the North Carolina Constitution requires and mandates “the

Governor [to] have enough control over the board or commission that” is “primarily

administrative or executive in character” “to perform” its “constitutional duty.” Id.

at 645-46, 781 S.E.2d at 256. The Supreme Court’s majority opinion further noted

the General Assembly “insulate[d] the Coal Ash Management Commission from

executive branch control even more by requiring the Commission to exercise its

powers and duties ‘independently,’ without the’ supervision, direction or control of

the Division of Emergency Management or Department of Public Safety.” Id. at 646,

781 S.E.2d at 257.

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Unlike in State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), the

Supreme Court in McCrory did not create a bright line rule:

We cannot adopt a categorical rule that would resolve every

separation of powers challenge to the legislative

appointment of executive officers. Because each statutory

scheme will vary the degree of control that legislative

appointment provisions confer on the General Assembly,

we must resolve each challenge by carefully examining its

specific factual and legal context. While the General

Assembly’s ability to appoint an officer obviously does not

give it the power to control what that officer does, we must

examine the degree of control that the challenged

legislation allows the General Assembly to exert over the

execution of the laws.

McCrory, 368 N.C. at 646-47, 781 S.E.2d at 257.

In Wallace, the Supreme Court had considered a separation of powers

challenge to a law appointing four sitting legislators to the Environmental

Management Commission. Wallace, 304 N.C. at 606-07, 286 S.E.2d 79, 87 (1982).

The General Assembly had created the cabinet-level Environmental Management

Commission, whose responsibilities are “promulgat[ing] rules and regulations for air

quality standards, emission control standards, and classifications for air contaminant

sources . . .; for water quality standards and classifications . . . ; to issue permits for

water use within capacity areas; and for the protection of sand dunes[.]” Id. at 607-08, 286 S.E.2d at 88. The Court, in Wallace, held the Environmental Management

Commission functions and duties were “administrative or executive in character.” Id.

at 608, 286 S.E.2d at 88. The Court further held the General Assembly “cannot create

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a special instrumentality of government to implement specific legislation and then

retain some control over the process of implementation by appointing legislators to

the governing body of the instrumentality.” Id. This per se rule prohibits one branch

of government from exercising powers, which are vested exclusively in another

branch. This prohibition was violated by sitting legislators creating and appointing

themselves to the Commission and wielding executive power. The Court held it was

“crystal clear” the Environmental Management Commission’s duties are

“administrative or executive in character.” Id.

The Court’s majority in McCrory, further held: “As a part of the inquiry in this

case, we must also consider whether the General Assembly has ‘retain[ed] some

control’ over the executive branch’s functions.” McCrory, 368 N.C. at 646, 781 S.E.2d

at 257 (citing Wallace, 304 N.C. at 608, 286 S.E.2d at 88). The sufficiency of the

Governor’s “degree of control” “[d]epends on his [or her] ability to appoint the

commissioners, to supervise their day-to-day activities and to remove them from

office.” Id. at 646, 781 S.E.2d at 256.

The Supreme Court of North Carolina applied the above framework and held

in McCrory:

Using that approach here, we hold that the challenged

appointment provisions violate the separation of powers

clause. When the General Assembly appoints executive

officers that the Governor has little power to remove, it can

appoint them essentially without the Governor’s influence.

That leaves the Governor with little control over the views

and priorities of the officers that the General Assembly

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appoints. When those officers form a majority on a

commission that has the final say on how to execute the

laws, the General Assembly, not the Governor, can exert

most of the control over the executive policy that is

implemented in any area of the law that the commission

regulates. As a result, the Governor cannot take care that

the laws are faithfully executed in that area. The

separation of powers clause plainly and clearly does not

allow the General Assembly to take this much control over

the execution of the laws from the Governor and lodge it

with itself.

Id. at 647, 781 S.E.2d at 257 (citations omitted).

The Court’s majority opinion in McCrory specifically declined to address “how

the separation of powers clause applies to those executive departments that are

headed by the independently elected members of the Council of State.” Id. at 646 n.5,

781 S.E.2d at 256 n.5.

B. Cooper v. Berger

Two years after McCrory, the Supreme Court decided another separation of

powers case in Cooper v. Berger. 370 N.C. at 395, 809 S.E.2d at 99. The General

Assembly had enacted Senate Bill 4 and House Bill 17, which abolished the separate

State Board of Elections and State Ethics Commission and appointed the existing

members of the State Board of Elections to a newly created Bipartisan State Board

of Elections and Ethics Enforcement. Id. The General Assembly consolidated both

boards’ powers into the Bipartisan State Board of Elections and Ethics Enforcement.

Id. After examining the political question and standing doctrines, the majority’s

opinion examined the Governor’s argument asserting Senate Bill 4 and House Bill 17

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“unconstitutionally infringe on the Governor’s executive powers in violation of

separation of powers.” Id. at 413, 809 S.E.2d at 110 (alteration omitted).

The Supreme Court in Cooper applied the analytical framework from McCrory.

The Court acknowledged its decision in McCrory did not define “control.” Id. at 414,

809 S.E.2d at 111. The Bipartisan State Board of Elections and Ethics Enforcement

“performs primarily executive, rather than legislative or judicial functions.” Id. at

415, 809 S.E.2d at 112. The Bipartisan State Board of Elections and Ethics

Enforcement consists of “eight members appointed by the Governor, four of whom

must be members of the political party with the highest number of registered

affiliates selected from a list of nominees provided by the chair of the party in question

and four of whom must be members of the political party with the second highest

number of registered affiliates selected from a list of nominees provided by the chair

of the party in question.” Id. (citation omitted).

The majority’s opinion concluded the creation of the Bipartisan State Board of

Elections and Ethics Enforcement “leave[s] the Governor with little control over the

views and priorities . . . by requiring that a sufficient number of its members to block

the implementation of the Governor’s policy preferences and selected from a list of

nominees chosen by the leader of the political party other than the one to which the

Governor belongs” which “limit[s] the extent to which individuals supportive of the

Governor’s policy preferences have the ability to supervise the activities,” thereby

“significantly constraining the Governor’s ability to remove members.” Id. at 416,

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809 S.E.2d at 112-13.

C. Cooper Confirmation

The same year as the Supreme Court of North Carolina decided Cooper, it also

decided another separation of powers case in Cooper Confirmation. Cooper

Confirmation, 371 N.C. at 801, 822 S.E.2d 290.

In Cooper Confirmation, the Governor challenged the appointments provision

of N.C. Gen. Stat. § 143-9(a) under the separation of powers clause and the

appointments clause, which granted the North Carolina Senate the power to confirm

the Governor’s nominees to serve in his cabinet, who head as secretaries the eleven

statutorily created administrative departments. Id. The Court noted the Governor

“is the Chief Executive Officer of the State.” Id. at 802, 822 S.E.2d at 290. “Cabinet

members must provide the Governor with extensive information about the work of

their respective departments.” Id. The Governor can remove any member of their

cabinet for any reason. Id.

Chief Justice Martin, writing for the Court’s majority, as he had in McCrory,

applied the McCrory analysis: “the degree of control that the Governor has over

executive officers can be measured by considering ‘his ability to appoint [them], to

supervise their day-to-day activities, and to remove them from office.’” Id. at 806, 822

S.E.2d at 293. The Court’s majority held “senatorial confirmation curtails the

Governor’s appointment power only minimally.” Id. at 807, 822 S.E.2d at 294. The

Governor can nominate any eligible person he or she wants. Id. The General

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Assembly “granted the Senate some piece of the appointment power” through

confirmation, however, “the Governor retains the most important role in the process:

the ability to choose, from the universe of all eligible people, the person on whom the

Senate will have an up-or-down vote.” Id. at 807-08, 822 S.E.2d at 294.

Chief Justice Martin’s opinion distinguished the facts at hand from the earlier

Cooper case, where the choice was from “two short lists” prepared “by the state party

chair[s] of the two political parties with the highest number of registered affiliates.”

Id. (citation omitted). The Court noted the Governor’s ability to control the views and

priorities of cabinet members, and held “the Governor has extensive supervisory

power, allowing him to directly manage his Cabinet members in virtually every

aspect of their authority.” Id. at 808, 822 S.E.2d at 294-95.

Finally, the Court noted the Governor retained the sole and “plenary authority

to remove the members of his Cabinet.” Id. at 809, 822 S.E.2d at 295. The Court held

senatorial confirmation of Cabinet nominees does not violate the separation of powers

clause. Id.

D. Stein v. Berger

On the day oral argument was originally scheduled in this case, this Court

released its opinion in Stein v. Berger, __ N.C. App. __, __ S.E.2d __, 2025 LX 415164

(2025) (“Stein Commissions”). In Stein Commissions, a prior panel of this Court

examined Senate Bill 512 and House Bill 488, which restructured the membership

and composition of seven state boards and commissions: (1) the Board of

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Transportation; (2) the Economic Investment Committee; (3) the Commission for

Public Health; (4) the Environmental Management Commission; (5) the Coastal

Resources Commission; (6) the Wildlife Resources Commission; and, (7) the Building

Code Council. N.C. Sess. Laws 2023-136, 2023-108.

The Governor argued the General Assembly’s restructuring of the above boards

and commissions violated the separation of powers clause of Article I, Section 6 of the

North Carolina Constitution. This Court reasoned:

Separation of powers is one of the “‘fundamental principles

on which state government is constructed . . . .’” The

separation of powers clause of the North Carolina

Constitution mandates that the “legislative, executive, and

supreme judicial powers of the State government shall be

forever separate and distinct from each other.” “[I]n other

words, each branch is directed to perform its assigned

duties and avoid encroaching on the duties of another

branch.”

The North Carolina Constitution also provides that the

“Governor shall take care that the laws be faithfully

executed.” But “the Governor is not alone in this task.” In

addition to the Governor, nine elected officers “assist the

executive branch in fulfilling its purpose,” including the:

Lieutenant Governor, Secretary of State, Auditor,

Treasurer, Superintendent of Public Instruction, Attorney

General, Commissioner of Agriculture, Commissioner of

Labor, and Commissioner of Insurance. Together, the

Governor and the nine executive officers comprise the

Council of State. As a result, “the Governor’s duty to ‘take

care that the laws be faithfully executed’ . . . is a

nonexclusive duty conferred upon all ten Council of State

members.”

When a branch is accused of violating separation of powers

by encroaching upon the executive branch’s authority, we

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consider whether the accused branch’s actions

‘“unreasonably disrupt a core power of the

executive.’” Such action generally occurs when the accused

branch “‘retains some control’ over the executive branch’s

functions.” There is, however, no “categorical rule that

would resolve every separation of powers challenge”

because “each statutory scheme” varies. Consequently,

“we must resolve each challenge by carefully examining its

specific factual and legal context.” Separation of powers

violations, therefore, can be “more nuanced” and occur

“when the actions of one branch prevent another branch

from performing its constitutional duties.”

Id. at __, __ S.E.2d at __, 2025 LX 415164, at *6-8 (internal citations omitted).

Judge Murry, concurring in full, but writing a separate concurrence, noted the

non-unitary nature of the Executive Branch: “Article III divides our Executive

Branch’s powers among the plural Council of State, with the Governor chief among

them.” N.C. Const. art III, § 1-2, 7-8.” Id. at __, __ S.E.2d at __, 2025 LX 415164, at

*25 (Murry, J., concurring).

House Bill 488 took duties belonging to the Building Code Council and

assigned them to the Residential Code Council. HB 488, § 1(a). The Residential Code

Council is housed within the Department of Insurance. Id. The Commissioner of

Insurance is a statewide elected Council of State member. The Residential Code

Council consists of thirteen members: seven are appointed by the Governor and six

are appointed by the General Assembly. Id. The Governor selects the chair and the

chair assigns members to committees. The Residential Code Council requires nine

members to take action and to form a quorum to conduct business. Id.

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This Court unanimously held:

By restructuring the BCC in this manner, the Governor

controls the majority and the chair, who controls the

composition of committees. While the change in size and

voting structure does not guarantee the Governor total

control over the RCC’s actions, the Governor nonetheless

retains “enough control” because his appointed members

constitute seven of the nine members required for the

quorum. See McCrory, 368 N.C. at 646, 781 S.E.2d at

256; Cooper Confirmation, 371 N.C. at 800, 822 S.E.2d at

289-90. Given the quorum requirement, it is not as though

the General Assembly’s six appointed members can take

action without the approval of at least three of the

Governor’s appointed members. As the General Assembly

did not violate separation of powers, the panel did not err

by concluding that the restructuring of the BCC was

constitutional.

Stein Commissions, __ N.C. App. at __, __ S.E.2d at __, 2025 LX 415164, at *23.

E. Building Code Council

Here, the Governor argues the restructuring of the Building Code Council’s

quorum and voting requirements violated the separation of powers clause by

depriving the Governor of his constitutionally sufficient control over the Council. In

Stein Commissions, this Court addressed the same issue with respect to the

Residential Code Council.

Both the Supreme Court of North Carolina and this Court have long recognized

“[w]here a panel of the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373,

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384, 379 S.E.2d 30, 37 (1989). We are bound by this Court’s holding in Stein

Commissions. The Governor, in his supplemental brief on the impact of Stein

Commissions, “recognizes the constitutional issues before this panel with respect to

the Building Code Council are nearly identical to those addressed by the Stein

Commissions panel with respect to the Residential Code Council. Accordingly, the

Governor acknowledges this Court is now bound by panel precedent for purposes of

resolving that aspect of this appeal.” The Governor has also filed a response to the

Legislative Defendants’ petition for discretionary review before the Supreme Court

requesting that Court to deny further review of Stein Commissions. Id.

The three-judge panel did not err in denying the Governor’s motion for

summary judgment and granting the Legislative Defendants’ motion for summary

judgment on the restructuring of the Building Code Council. Id.

F. Utilities Commission

The Governor argues Senate Bill 382 deprives the Governor of constitutionally

sufficient control over the Utilities Commission. The Governor asserts Senate Bill

382 fails the “enough control” test the Supreme Court articulated in McCrory.

McCrory, 368 N.C. at 646, 781 S.E.2d at 256. The Governor further asserts the State

Treasurer and the Governor are not “fungible.” He argues the General Assembly

cannot reassign one Council of State member’s core constitutional duties to another.

When the General Assembly is able to reassign functions within the Council of State,

Article III, Section 11 of the North Carolina Constitution requires the functions to be

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grouped together “according to major purposes.” Finally, the Governor asserts Senate

Bill 382 functionally gives the General Assembly de facto control of the State

Treasurer’s appointment to the Commission.

The Utilities Commission is composed of five members. N.C. Gen. Stat. § 62-10 (2023). Prior to the enactment of Senate Bill 382, the Governor was authorized to

appoint three members and designate the chair. Id. The Legislative Defendants were

authorized to appoint two members. Id. Senate Bill 382 transferred one of the

Governor’s three (3) appointments to the State Treasurer. N.C. Sess. L. 2024-57, §

3F.1(a).

The Governor asserts he is denied sufficient control over the Utilities

Commission, citing McCrory. “[T]he Governor must have enough control over [the

commissions] to perform his constitutional duty.” McCrory, 368 N.C. at 646, 781

S.E.2d at 256. However, in McCrory, the Supreme Court did not address “how the

separation of powers clause applies to those executive departments that are headed

by the independently elected members of the Council of State.” Id. (emphasis

supplied).

The Governor maintains he “has little, possibly no authority to remove

Commissioners.” The Public Utilities Act provides “[m]embers of the Commission

shall be liable to impeachment for the causes and in the manners provided for judges.”

N.C. Gen. Stat. § 62-10(i) (2023). This removal provision is not changed by Senate

Bill 382, and it is instead governed by the Public Utilities Act. Id. This argument is

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Opinion of the Court

without merit.

The Utilities Commission is “declared to be an administrative board or agency

of the General Assembly.” N.C. Gen. Stat. § 62-23 (2023). Our General Statutes

further provide: “The [Utilities] Commission shall separate its administrative or

executive functions, its rulemaking function, and its functions judicial in nature to

such extent as it deems practical and divisible in the public interest.” Id.

In Stein Commissions, this Court held, “[w]hile the Governor does not directly

appoint a majority of each commission, the executive branch holds the majority

appointment power.” Stein Commissions, __ N.C. App. at __, __ S.E.2d at __, 2025

LX 415164, at *21. This Court in Stein Commissions held elected members of the

Council of State, specifically, the Commissioner of Agriculture and Commissioner of

Insurance, could make appointments to the Coastal Resources Commission, the

Environmental Management Commission, and the Wildlife Resources Commission.

Id. This Court held the General Assembly could restructure these commissions

because the “executive branch holds the majority appointment power.” Id.

The requisite analysis and issue, as Judge Murry further articulated in detail

in his concurrence, was not whether the Governor alone appoints the majority, but

whether the executive branch makes the majority of appointments. “[T]he Governor’s

duty to take care that the laws be faithfully executed . . . is a nonexclusive duty

conferred upon all ten Council of State members.” Id. (citation and internal quotation

marks omitted).

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Opinion of the Court

Here, the Governor and the State Treasurer appointees hold the majority

appointment power. The Governor asserts the General Assembly cannot reassign one

Council of State member’s core constitutional duties to another. Article III, Section

11 of the North Carolina Constitution provides:

Not later than July 1, 1975, all administrative

departments, agencies, and offices of the State and their

respective functions, powers, and duties shall be allocated

by law among and within not more than 25 principal

administrative departments so as to group them as far as

practicable according to major purposes. Regulatory,

quasi-judicial, and temporary agencies may, but need not,

be allocated within a principal department.

N.C. Const. art III, § 11.

This section does not address the allocation of duties between Council of State

members. The Governor asserts the State Treasurer’s role does not revolve or resolve

around the regulation of public utilities, citing Justice Dietz’s separate concurrence

in an order denying the Governor’s petition for a writ of supersedeas and a petition

for writ of certiorari and also dismissing the Governor’s motion for a temporary stay

in a challenge to the General Assembly’s alteration of the structure and oversight of

the State Board of Elections. Stein v. Berger, 387 N.C. 575, 575, 915 S.E.2d 146, 146

(2025). Justice Dietz wrote:

In addition to each Council of State member’s core

constitutional roles, the General Assembly has long

assigned other executive duties to each Council of State

member that are related to that member’s core functions.

The authority to do so comes from the constitutional

provisions authorizing the General Assembly to reorganize

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Opinion of the Court

the executive branch however it sees fit, so long as

administrative functions and duties are grouped together

“as far as practicable according to major purposes.” N.C.

Const. art. III, §§ 5(10), 11.

Id. at 581-82, 915 S.E.2d at 150 (Dietz, J., concurring).

Article III, Section 5(10) grants the General Assembly the power to “prescribe

the functions, powers, and duties of the administrative departments and agencies of

the State and may alter them from time to time[.]” N.C. Const. art III, § 5(10)

(“Administrative reorganization. The General Assembly shall prescribe the

functions, powers, and duties of the administrative departments and agencies of the

State and may abolish and/or alter them from time to time, but the Governor may

make such changes in the allocation of offices and agencies and in the allocation of

those functions, powers, and duties as he considers necessary for efficient

administration. If those changes affect existing law, they shall be set forth in

executive orders, which shall be submitted to the General Assembly not later than

the sixtieth calendar day of its session, and shall become effective and shall have the

force of law upon adjournment sine die of the session, unless specifically disapproved

by resolution of either house of the General Assembly or specifically modified by joint

resolution of both houses of the General Assembly.” (emphasis supplied)).

The General Assembly holds the residual power of the People as their elected

representatives and has made a choice. After the constitutional mandate, giving the

General Assembly the right to reorganize State administrative departments by 1975,

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Opinion of the Court

the Constitution expressly gives them the right to modify the departments functions,

powers, and duties “from time to time.” N.C. Const. art III, § 5(10).

The Governor argues and asserts Senate Bill 382 functionally gives the

General Assembly control because of the ability to confirm. As our Supreme Court

emphasized in Cooper Confirmation, the Governor has the power to appoint “all

constitutional officers whose appointments are not otherwise provided for in the

constitution.” Cooper Confirmation, 371 N.C. at 805, 822 S.E.2d at 292 (citation

omitted). The General Assembly can appoint and confirm statutory officers. Id.

“[A]ppointing statutory officers is not an exclusively executive prerogative.” Id. The

“lesser power to confirm statutory officers is not vested in either branch.” Id. Upon

de novo review, the order of the three-judge superior court panel upholding the State

Treasurer’s appointment to the Utilities Commission is affirmed.

VII. Judicial Vacancies

The Legislative Defendants argue the three-judge superior court panel erred

by granting the Governor’s motion for summary judgment and denying their motion

for summary judgment by holding the amendments to N.C. Gen. Stat. § 163-9 in

Section 3C.1 of Session Law 2024-57 were facially unconstitutional.

This section provides:

SUBPART III-C. JUDICIARY

MODIFY THE APPOINTMENT PROCESS TO FILL

SUPREME COURT AND COURT OF APPEALS

VACANCIES

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Opinion of the Court

SECTION 3C.1.(a) G.S. 163-9 reads as rewritten:

Ҥ 163-9. Filling vacancies in State and district judicial

offices.

N.C. Sess. L. 2024-57, § 3C.1.(a).

A. Baker v. Martin

The Supreme Court of North Carolina examined an amendment to N.C. Gen.

Stat. § 7A-142, which governs the appointment of vacancies in the district court in

Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991). The challenged statute

provided:

A vacancy in the office of district judge shall be filled for

the unexpired term by appointment of the Governor from

nominations submitted by the bar of the judicial district. .

. . If the district court judge was elected as the nominee of

a political party, then the district bar shall submit to the

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Opinion of the Court

Governor the names of three persons who are residents of

the district court district who are duly authorized to

practice law in the district and who are members of the

same political party as the vacating judge[.]

Id. at 334, 410 S.E.2d at 889.

The plaintiff, an otherwise qualified candidate but who affiliated with the

Republican Party, attended the district bar meeting convened to nominate three

candidates for the departing registered Democrat judge’s seat. The plaintiff was not

considered for the slate of three candidates submitted, because his party affiliation

was different from that of the departing judge. Id. at 333, 410 S.E.2d at 888. The

plaintiff argued “certain provisions of the North Carolina Constitution set the

qualifications for appointment to the office of district court judge and, by placing the

additional qualification on candidates that they be members of the same political

party as the vacating judge, N.C.G.S. § 7A-142 violate[d] the Constitution.” Id. at

334, 410 S.E.2d at 889.

Our Supreme Court interpreted Article V, Section 6 to apply only to “‘election

to office’ . . . rather than to appointment to an ‘elective office.’” Id. at 336, 410 S.E.2d

at 890. The Supreme Court further examined Article VI, Section 8, holding it “does

not necessarily imply that additional disqualifications cannot be added by the

General Assembly for those persons not elected by the people. Instead, N.C. Const.

art VI, § 8 merely enumerates three disqualifications, one of which applies only to

offices filled by election by the people.” Id. at 339, 410 S.E.2d at 892.

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Opinion of the Court

The Court then examined the plaintiff’s challenges under Article IV, Sections

10 and 19. The Court’s majority opinion rejected the plaintiff’s argument Article IV,

Section 10 “provides for the creation of district courts and that vacancies on the

district court bench shall be filled ‘in a manner prescribed by law.’” Id. at 340, 410

S.E.2d at 892-93. The plaintiff asserted Article IV, Section 10 “prescribes the manner

in which district court judges are appointed and nowhere in this section does it say

that a person must be of a certain political party to be eligible for appointment as a

district court judge.” Id.

The Court’s majority held “[t]he phrase ‘in a manner prescribed by law’ appears

in two places in N.C. Const. art IV, § 10.” Id. See N.C. Const. art IV, § 10 (“The

General Assembly shall, from time to time, divide the State into a convenient number

of local court districts and shall prescribe where the District Courts shall sit, but a

District Court must sit in at least one place in each county. District Judges shall be

elected for each district for a term of four years, in a manner prescribed by law. When

more than one District Judge is authorized and elected for a district, the Chief Justice

of the Supreme Court shall designate one of the judges as Chief District Judge. Every

District Judge shall reside in the district for which he is elected. For each county, the

senior regular resident Judge of the Superior Court serving the county shall appoint

from nominations submitted by the Clerk of the Superior Court of the county, one or

more Magistrates who shall be officers of the District Court. The initial term of

appointment for a magistrate shall be for two years and subsequent terms shall be

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Opinion of the Court

for four years. The number of District Judges and Magistrates shall, from time to

time, be determined by the General Assembly. Vacancies in the office of District

Judge shall be filled for the unexpired term in a manner prescribed by law. Vacancies

in the office of Magistrate shall be filled for the unexpired term in the manner

provided for original appointment to the office, unless otherwise provided by the

General Assembly.” (emphasis supplied).

The phrase “in a manner prescribed by law” “appears in that part of the section

providing for the election of judges and that part of the section providing for the

appointment of judges. It follows that the identical words used in the same section

must have an identical meaning.” Baker, 330 N.C. at 340, 410 S.E.2d at 892-93.

The Court’s majority concluded the use of the phrase “in a manner prescribed

by law” “means that the General Assembly must play some part. The complicated

procedure governing elections is not set forth in the Constitution.” Id. at 341, 410

S.E.2d at 893. The Court’s majority noted: “The General Assembly in this case has

chosen to protect the mandate of the previous election by providing that the appointed

judge should be of the same political party as his or her predecessor.” Id.

The Court’s majority opinion cited the Supreme Court of the United States’

opinion in Rivera-Rodriguez v. Popular Democratic Party, although it acknowledged

the case had interpreted the Constitution of the United States instead of the North

Carolina Constitution, 457 U.S. 1, 72 L. Ed. 2d 628 (1982). That case held: “it did not

violate the United States Constitution for Puerto Rico to protect the mandate of the

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Opinion of the Court

people by requiring a legislator to be of the same political party as his or her deceased

predecessor.” Id. The Supreme Court’s opinion recognized Rivera-Rodriguez “does

illustrate that the protection of the mandate of an election is a legitimate concern.”

Id.

The majority’s opinion then addressed the plaintiff’s argument the political

party membership was an unconstitutional qualification for office. The plaintiff cited:

Starbuck v. Havelock, 252 N.C. 176, 113 S.E.2d 278; Cole v. Sanders, 174 N.C. 112,

93 S.E. 476 (1917); Spruill v. Bateman, 162 N.C. 588, 77 S.E. 768 (1913); and, State

of N.C. by the At. Gen’l, Hargrove, ex rel. Lee v. Dunn, 73 N.C. 595 (1875). Our

Supreme Court overruled this argument by distinguishing the above cases as

“election to office cases and not appointment to office.” Id. at 341-42, 410 S.E.2d at

893. The Court upheld the statute’s political party requirement. Id.

The Legislative Defendants assert our Supreme Court’s holding in Baker

supports their position, asserting the Court found a similar design did not violate

Article IV, Section 19. In Baker, as examined above, the Supreme Court upheld a

requirement that the Governor must appoint a member of the same political party as

the departing judge. The General Assembly, as within its right and power, later

amended N.C. Gen. Stat. § 7A-142 in 1999 to remove the challenged requirement in

Baker. 1999 HB. 168.

Our Supreme Court has not repudiated or overruled its analysis in Baker

either expressly or implicitly. This Court is bound by the analysis in Baker. See

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Opinion of the Court

Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985) (noting the Court of

Appeals’ “responsibility to follow th[e] decisions [of the Supreme Court of North

Carolina], until otherwise ordered by the Supreme Court”).

Section 3C.1 further provides the Governor “shall appoint” “from a list of three

qualified persons recommended by the political party with which the vacating judge

was affiliated when elected.” The Governor asserts the provisions “transfers the core

of the appointment power from the Governor to unrelated political operatives.”

In Baker, as here, the Governor was free to select any member of the political

party who was included in the district bar’s list of three nominees. The Governor was

required to appoint someone from the district bar’s list of three nominees, who

otherwise met the qualifications and requirements for office. The statutes still

require the list of potential judicial appointees to be generated by a body outside of

the Governor’s control.

The state executive political party committees and other local political party

leaders and committees are mentioned extensively in Chapter 163 to nominate

individuals for appointment by the Governor to fill vacancies in both federal and state

legislative offices. See N.C. Gen. Stat. § 163-11 (2023) (“[T]he Governor shall

immediately appoint for the unexpired part of the term [in the General Assembly] the

person recommended by the political party executive committee provided by this

section. The Governor shall make the appointment within seven days of receiving

the recommendation of the appropriate committee. If the Governor fails to make the

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Opinion of the Court

appointment within the required period, he shall be presumed to have made the

appointment and the legislative body to which the appointee was recommended is

directed to seat the appointee as a member in good standing for the duration of the

unexpired term.”); N.C. Gen. Stat. § 163-12 (2023) (“If the [United States] Senator

was elected as the nominee of a political party, the Governor shall appoint from a list

of three persons recommended by the State executive committee of the political party

with which the vacating member was affiliated when elected if that party executive

committee makes recommendations within 30 days of the occurrence of the

vacancy.”).

The Governor argues and asserts the power to appoint is the ability to “select

his nominees from a virtually unlimited pool of qualified people.” Cooper

Confirmation, 371 N.C. at 808, 822 S.E.2d at 294. This language refers to the ability

of the Governor to select a nominee of his choice, who must be confirmed by the Senate

to his Cabinet. The Governor wields substantial power over his Cabinet. Id. The

Supreme Court held “Cabinet members are some of the Governor’s closest deputies,

and are critical to the Governor’s ability to take care that the laws be faithfully

executed.” Id. at 807, 822 S.E.2d at 294. “In short, the Governor has extensive

supervisory power, allowing him to directly manage his cabinet members in virtually

every aspect of their authority,” and the Cabinet members “serve at the Governor’s

pleasure.” Id. at 808, 822 S.E.2d at 295 (citation omitted).

In Cooper, the Supreme Court rejected the statutory framework in which the

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Opinion of the Court

Governor had to choose an equal number of his appointees from two short lists

prepared “by the State party chair[s] of the two political parties with the highest

number of registered affiliates.” Cooper, 370 N.C. at 396, 809 S.E.2d at 101.

However, the Bipartisan State Board of Elections and Ethics Enforcement “performs

primarily executive, rather than legislative or judicial functions.” Id. at 415, 809

S.E.2d at 112.

The Governor asserts “Article IV, Section 19 specifically prohibits the

legislature from imposing any limits on the Governor’s appointment authority beyond

those found in Article IV itself.” This assertion is patently incorrect based upon the

plain language of the Supreme Court in Baker. Baker expressly addresses vacancy

appointments in Article IV, Section 19, holding “N.C. Const. art IV, § 19 does not

govern exclusively the appointment of district court judges.” Baker, 330 N.C. at 341,

410 S.E.2d at 893 (emphasis supplied).

In Baker, the Supreme Court of North Carolina rationalized and held the

phrase “in a manner prescribed by law” grants the General Assembly “some part to

play” in the appointment of judges. Id. The Governor’s argument is overruled.

VIII. Conclusion

The General Assembly did not violate the separation of powers clause by

restructuring the Building Code Council and Utilities Commission in Senate Bill 382.

The three-judge superior court panel correctly granted the Legislative Defendants’

and the State Treasurer’s motions for summary judgment and correctly denied the

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Opinion of the Court

Governor’s motion for summary judgment.

The General Assembly 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.” N.C. Sess. L. 2024-57, §

3C.1.(a); Baker, 330 N.C. at 341, 410 S.E.2d at 893. The three-judge superior court

panel erred as a matter of law by granting the Governor’s motion for summary

judgment and denying the Legislative Defendants’ motion for summary judgment.

The order of the three-judge superior court panel is affirmed in part, reversed

in part, and remanded with instructions to grant the Legislative Defendants’ motion

for summary judgment and to deny the Governor’s motion for summary judgment. It

is so ordered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Judge ZACHARY concurs.

Judge COLLINS concurs in part and dissents in part with separate opinion.

- 33 -No. COA25-745 – Stein v. Hall

COLLINS, Judge, concurring in part and dissenting in part.

I concur in the majority opinion addressing the Building Code Council as we

are bound by Stein Commissions for purposes of resolving that aspect of this appeal.

For the reasons stated herein, I respectfully dissent from the majority opinion

addressing the Utilities Commission and appellate judicial vacancies.

IX. Utilities Commission

B. Background

Before Senate Bill 382, the Governor was authorized to appoint three of the

Commission’s five members and designate the Commission’s chair. N.C. Gen. Stat. §

62-10. The General Assembly was authorized to appoint the remaining two

Commissioners. Id. Commissioners were “liable to impeachment for the causes and

in the manners provided for judges . . . .” Id. § 62-10(i).

With Senate Bill 382, the General Assembly transferred one of the Governor’s

appointments to the State Treasurer. N.C. Sess. Laws 2024-57, § 3F.1.(a) (amending

N.C. Gen. Stat. § 62-10(a)). The Governor’s appointees and the Treasurer’s appointee

remain subject to confirmation by the General Assembly. N.C. Gen. Stat. § 62-10(a).

The Treasurer is independently elected and not subject to appointment or removal by

the Governor. N.C. Const. art. III, § 7(1); N.C. Gen. Stat. § 147-4. The Governor and

the Treasurer have no authority to remove any appointee; Commissioners remain

removable only by impeachment, id. § 62-10(i).

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

Senate Bill 382 also eliminates the Governor’s authority to appoint the

Commission’s chair. Instead, the chair is now selected by a majority of the

Commissioners. N.C. Sess. Laws 2024-57 § 3F.1.(a). The chair is “the chief executive

and administrative officer of the Commission.” N.C. Gen. Stat. § 62-13(a). The chair

decides whether matters are heard by the full Commission or a panel of three

Commissioners and dictates the composition of any such panels; rules on procedural

motions and petitions; and may unilaterally initiate investigations, complaints, or

any other proceedings. Id. §§ 62-13(b)-(d).

C. Analysis

The Utilities Commission is “an administrative board or agency” that was

“created for the principal purpose of carrying out the administration and enforcement

of” the Public Utilities Act. N.C. Gen. Stat. § 62-23. It investigates utilities, issues

certificates of public convenience, and approves transfers of franchises. Id. §§ 62-34,

62-37, 62-110, 62-111. These are quintessential executive tasks. See Stein v. Berger,

2025 N.C. App. LEXIS 727, *8 (“Stein Commissions”). Because the Commission is an

executive agency, the Governor must retain “enough control” over the Commission to

ensure that it faithfully executes the law. State ex rel. McCrory v. Berger, 368 N.C.

633, 646 (2016); N.C. Const. art. III, § 5(4) (“The Governor shall take care that the

laws be faithfully executed.”). The degree of control that the Governor has over the

Commission “depends on his ability to appoint the commissioners, to supervise their

day-to-day activities, and to remove them from office.” McCrory, 368 N.C. at 646.

2

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

Under Senate Bill 382, the Governor appoints two of five Commissioners, the

General Assembly appoints two, the General Assembly gives the remaining

appointment to the State Treasurer, and the chair is chosen by a majority of the

Commissioners. And neither the Governor nor the Treasurer may remove their

appointees from office. The majority opinion concludes that this structure is

constitutional because the Governor and the State Treasurer together hold the

majority appointment power. I disagree for three independent reasons.

First, the Treasurer’s appointment is not wholly an exercise of executive power;

it exists only because the General Assembly gave it to him, and the General Assembly

may take it away. 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. This creates the

separation‑of‑powers danger that McCrory forbids: legislative dominance over the

execution of the laws. Id. at 646-47.

Second, the Treasurer’s appointment bears no relationship to the Treasurer’s

constitutional role. The Constitution requires that duties assigned to Council of State

members be “sufficiently related” to a “major purpose” of the member’s “core

constitutional role.” Stein v. Berger, 387 N.C. 575, 582 (2025) (Dietz, J., concurring);

see N.C. Const. art. III, §§ 5(10), 11. The Treasurer’s core constitutional role concerns

3

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

the custody, accounting, and management of State funds. See N.C. Const. art. V, § 7

(requiring an “accurate account of the receipts and expenditures of State funds” to be

“published annually”); see also Cooper v. Berger, 376 N.C. 22, 43 (2020) (describing

Article V, § 7 as the “definition[] of the . . . State Treasurer found in the State

constitution”). None of the Treasurer’s duties relate to utilities regulation. Assigning

the Treasurer a decisive appointment to the Utilities Commission violates the “major

purpose” doctrine. It also undermines democratic accountability: voters elect the

Treasurer to manage the State’s finances, not to regulate public utilities.

Third, McCrory requires the Governor to control agencies housed in Cabinet

departments. McCrory, 368 N.C. at 646. The Utilities Commission is housed within

the Department of Commerce, a principal department under N.C. Gen. Stat. §

143B‑9. See N.C. Gen. Stat. §§ 143B-6(9), -431(a)(2)(b), -433(1)(b). Under McCrory,

such departments “unquestionably fall under the Governor’s purview.” McCrory, 368

N.C. at 646 n.5.

The majority treats Stein Commissions as dispositive. But that case addressed

different agencies, different statutory structures, and different constitutional

concerns. Most importantly, it did not address: legislative manipulation of

appointment authority immediately after an election; the constitutional requirement

that duties assigned to Council of State members relate to their core functions; or

McCrory’s rule that agencies housed in principal departments must remain under

4

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

gubernatorial control. Because Stein Commissions did not resolve these issues, it

does not bind us here.

For these reasons, I would hold that Senate Bill 382 is unconstitutional as it

relates to the Utilities Commission. I would therefore reverse the three-judge panel’s

order granting summary judgment to Legislative Defendants and remand to the

superior court to enter summary judgment to the Governor on this issue.

X. Appellate Judicial Vacancies

D. Background

Article IV of the North Carolina Constitution establishes the “General Court

of Justice,” divided into the Appellate, Superior Court, and District Court Divisions.

N.C. Const. art. IV, §§ 1-2. The Appellate Division consists of the Supreme Court and

Court of Appeals; justices and judges of those courts are chosen in statewide elections.

Id. §§ 5, 16. Article IV, Section 19 governs the power to fill most judicial offices

created in Article IV: “Unless otherwise provided in this Article, all vacancies

occurring in the offices provided for by this Article shall be filled by appointment of

the Governor.” Id. § 19.

Various sections in Article IV “otherwise provide” different procedures for

filling vacancies with respect to district court judges, special and emergency superior

court judges, clerks of superior court, and magistrates. Vacancies in the office of

district court judge “shall be filled for the unexpired term in a manner prescribed by

law.” Id. § 10. “The General Assembly may provide by general law for the selection

5

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

or appointment of special or emergency superior court judges . . . .” Id. § 9(1).

Vacancies in the offices of clerk of superior court and magistrates are filled as

specified in Section 9(3) and Section 10. Id. §§ 9(3), 10. No such “manner prescribed

by law” language appears with respect to justices of the Supreme Court, judges of the

Court of Appeals, or regular superior court judges.

Article IV also contains the constitutional qualifications for judicial office. The

General Assembly “shall prescribe maximum age limits for service as a Justice or

Judge” of the General Court of Justice. Id. § 8. And “[o]nly persons duly authorized

to practice law in the courts of this State shall be eligible for election or appointment

as a Justice or Judge” of the General Court of Justice. Id. § 22.

Consistent with Article IV, Section 19, North Carolina law has long provided

that vacancies on the Supreme Court, Court of Appeals, and superior court “shall be

filled by appointment of the Governor” without further statutory restriction on whom

the Governor could appoint, beyond the constitutional requirements of age and

licensure. See N.C. Gen. Stat. § 163‑9 (prior to 2024 amendment).

In 2024, the General Assembly enacted Session Law 2024‑57, Section 3C.1.(a)

(“Judicial Vacancies Provision”) which amended Section 163‑9 to require the

Governor to fill appellate court vacancies from a partisan list:

The Governor shall appoint persons to fill vacancies

occurring in the offices of Justice of the Supreme Court and

judge of the Court of Appeals for causes other than

expiration of term from a list of three qualified persons

recommended by the political party executive committee of

6

STEIN V. HALL

Collins, J., concurring in part and dissenting in part

the political party with which the vacating judge was

affiliated when elected. If a political party fails to make

recommendations under this subsection within 30 days of

the occurrence of the vacancy, or if a vacating judge was

not affiliated with a political party at the time of the judge’s

election, the Governor shall appoint a qualified person to

fill the vacancy. For purposes of this subsection, a qualified

person is a person who is a resident of the State who is duly

authorized to practice law in this State.

N.C. Sess. Laws 2024‑57, § 3C.1.(a).

The issue before us is whether the Judicial Vacancies Provision impermissibly

infringes on the Governor’s appointment authority in Article IV, Section 19. A threejudge panel of superior court judges unanimously concluded that the Judicial

Vacancies Provision is unconstitutional and enjoined its enforcement. I agree with

the three-judge panel.

E. Governing principles

To determine whether legislative acts conform to the Constitution, we look to

constitutional text, structure, history, and precedent, always with the aim of

effectuating the intent of the people who ratified the provision at issue. Martin v.

State, 330 N.C. 412, 415-16 (1991). “The best way to ascertain the meaning of a word

or sentence in the Constitution is to read it contextually and to compare it with other

words and sentences with which it stands connected.” Id. at 416 (quoting State v.

Emery, 224 N.C. 581, 583 (1944)).

Our State Constitution is a limitation on, rather than a grant of, legislative

power. Cooper v. Berger, 371 N.C. 799, 810 (2018) (“Cooper Confirmation”). “Unless

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Collins, J., concurring in part and dissenting in part

the Constitution expressly or by necessary implication restricts the actions of the

legislative branch, the General Assembly is free to implement legislation as long as

that legislation does not offend some specific constitutional provision.” Id. at 811

(quoting Baker v. Martin, 330 N.C. 331, 338-39 (1991)). Nonetheless, when a

legislative act “plain[ly] and clear[ly]” exceeds an express or necessarily implied

constitutional limit, courts must declare it invalid. McCrory, 368 N.C. at 639.

With these principles in mind, I turn to the constitutional question presented.

F. Analysis

1. Substantial displacement of the appointment power

As an initial matter, I reject Legislative Defendants’ characterization of the

Judicial Vacancies Provision as a modest regulation of “process” or “qualifications”

that leaves the Governor’s appointment power intact. It is more accurately

characterized as a substantial displacement of the appointment power.

Under the Judicial Vacancies Provision, when a justice of the Supreme Court

or a judge of the Court of Appeals who was elected as an affiliate of a political party

vacates office, the executive committee of that political party selects three “qualified

persons” and transmits that list to the Governor. See N.C. Sess. Laws 2024‑57, §

3C.1.(a). The Governor must appoint one of those three people; he may not appoint

any other eligible attorney in the State unless the party fails to submit a list within

30 days or the departing justice or judge was unaffiliated. See id.

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Collins, J., concurring in part and dissenting in part

Where the Constitution vests appointment power in the Governor, that power

inherently includes the ability to select “from a virtually unlimited pool of qualified

people” such that “the ultimate appointee will be a person that he alone has chosen.”

Cooper Confirmation, 371 N.C. at 808, 801 (emphasis added).

Here, the Judicial Vacancies Provision gives to a political party executive

committee what the Supreme Court describes as the core substance of the

appointment power: the power to choose from the pool of qualified people and to

ensure that the ultimate appointee will be a person the Governor alone has chosen.

Id. Under the Judicial Vacancy Provision, the political party executive committee–

not the Governor–chooses which three individuals will be eligible for appointment.

The Governor may conclude that each of the three is unqualified; he nonetheless must

appoint one of them, so long as they satisfy the minimal constitutional prerequisites

of age and bar membership. His “choice” is reduced to selecting the least

objectionable of three individuals pre-screened by partisan actors.

Labeling this partisan-screening requirement a “qualification” does not

transform it into one. A “qualification” for office ordinarily refers to “a quality or skill

that fits a person (as for an office).” Qualification, Merriam-Webster (2025),

https://www.merriam-webster.com/dictionary/qualification (last visited December

20, 2025). Being chosen by a political party executive committee is not a quality or

skill that has any relationship to an individual’s fitness to hold judicial office. The

partisan-screening requirement is also, by design, a condition that can be satisfied by

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Collins, J., concurring in part and dissenting in part

no more than three people at any given time. And as Legislative Defendants conceded

at oral argument, there is nothing to prevent the General Assembly from even further

limiting its gatekeeping requirements. In their view, the Governor need only be given

a “choice” of two candidates, chosen for reasons unrelated to fitness to hold judicial

office, to satisfy constitutional requirements.

I therefore view the Judicial Vacancies Provision as a substantial displacement

of the appointment power Article IV, Section 19 vests in the Governor, not a minor

implementation of that power. Whether that displacement is constitutional turns on

the meaning of Section 19.

2. Plain text and structure

Article IV, Section 19 provides, in pertinent part, “Unless otherwise provided

in this Article, all vacancies occurring in the offices provided for by this Article shall

be filled by appointment of the Governor.” N.C. Const. art. IV, § 19. This provision

provides the general rule that vacancies in “the offices provided for by this Article,”

referring to the judicial offices created in Article IV, “shall be filled by appointment

of the Governor.” Id. This clause identifies both the mechanism (appointment) and

the officer (the Governor) responsible for filling vacancies.

The general rule is expressly subject to the prefatory clause, “Unless otherwise

provided in this Article.” Id. That clause specifies that exceptions to the general rule

may be found in Article IV and nowhere else. Thus, the plain language of Section 19

requires vacancies in Article IV offices to be filled by gubernatorial appointment, and

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Collins, J., concurring in part and dissenting in part

any departure from the default rule, either as to the manner in which a vacancy is

filled or who fills it, must be “otherwise provided in” Article IV. Id.

The structure of Article IV confirms this reading. Where the framers intended

to permit the General Assembly to design the method of filling particular judicial

vacancies, it said so explicitly. Section 9 authorizes the General Assembly to “provide

by general law for the selection or appointment of special or emergency Superior

Court Judges not selected for a particular judicial district.” N.C. Const. art. IV, § 9(1)

(emphasis added). Section 10 likewise provides that “[v]acancies in the office of

District Judge shall be filled for the unexpired term in a manner prescribed by law,”

and that “[v]acancies in the office of Magistrate shall be filled for the unexpired term

in the manner provided for original appointment to the office, unless otherwise

provided by the General Assembly.” Id. § 10 (emphases added). By contrast, for

vacancies in the appellate courts and regular superior courts, the Constitution

neither authorizes the General Assembly to prescribe the “manner” of filling those

vacancies nor otherwise empowers it to constrain the Governor’s choice of appointee.

We generally presume that differences in constitutional text are purposeful and must

be given effect. See Silver v. Halifax Cnty. Bd. of Comm’rs, 371 N.C. 855, 863 (2018)

(emphasizing significance of framers’ choice of “shall” in one subsection and “may” in

another).

Defendants contend that the phrase “[u]nless otherwise provided in this

Article” functions only to acknowledge that Sections 9 and 10 allocate appointment

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Collins, J., concurring in part and dissenting in part

of special or emergency Superior Court judges, district court judges, and magistrates

to other actors. But this narrow reading ignores its broader, limiting language.

Section 19 does harmonize Sections 9 and 10, in that the Governor’s appointment

authority yields where Article IV provides “otherwise.” Yet Section 19 also specifies

that any deviation from the default rule, either as to the manner in which a vacancy

is filled or who fills it, must be rooted in Article IV itself.

This construction is reinforced by Baker v. Martin. There, the Supreme Court

considered a challenge to former North Carolina General Statute Section 7A‑142,

which required the Governor to appoint to district court vacancies a person of the

same political party as the departing judge. Baker, 330 N.C. at 333-34. The plaintiff

argued that this partisan requirement impermissibly added a new disqualification

for office beyond those listed in Article VI, Section 8. Id. at 339. Section 8 provides,

“The following persons shall be disqualified for office:” followed by an enumerated list

of disqualifications. N.C. Const. art. VI, § 8.

The Court rejected that challenge, noting that Article VI, Section 8 does not

contain language limiting disqualifications to those listed in the Constitution. Id.

The Court explained:

Had the framers wanted to limit the disqualifications to

those outlined in N.C. Const. art. VI, § 8 and other

constitutional provisions, they could have done so easily by

rewriting the first sentence in N.C. Const. art. VI, § 8 to

read: “Unless otherwise provided for in this Constitution,

only the following persons shall be disqualified for office[.]”

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Collins, J., concurring in part and dissenting in part

Id. The Court treated “[u]nless otherwise provided for in this Constitution” as

language that, if included in Article VI, Section 8, would have limited

disqualifications to those listed in the Constitution and would have prohibited the

General Assembly from adding more by statute.

Article IV, Section 19 employs materially similar language. It states that

vacancies “shall be filled by appointment of the Governor” “[u]nless otherwise

provided in this Article.” N.C. Const. art. IV, § 19. While Section 19 does not include

the word “only” that Baker used in its hypothetical re-drafting, the absence of that

word is not dispositive. The Supreme Court in Baker held that the operative language

in Article VI, Section 6, “Every qualified voter in North Carolina who is 21 years of

age, except as in this Constitution disqualified, shall be eligible for election by the

people to office,” does limit the General Assembly’s ability to add further

disqualifications for elected office. Id. at 339. The limiting language is the clause

directing that exceptions arise “in this Constitution,” not from the word “only.”

Likewise, Article IV, Section 19 directs that exceptions to the gubernatorial

appointment rule arise when “otherwise provided in this Article.” Under Baker’s

reasoning, that phrase necessarily signals that any constraint on the Governor’s

exercise of the appointment power must be found in Article IV itself, not in ordinary

legislation.

Defendants argue that Baker supports their position because the Court

ultimately upheld the partisan requirement in Section 7A‑142. But the Court did so

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Collins, J., concurring in part and dissenting in part

only after determining that Article IV, Section 19 “does not govern exclusively the

appointment of district court judges.” Id. at 341. Because Article IV, Section 10

expressly provides that “[v]acancies in the office of District Judge . . . shall be filled

for the unexpired term in a manner prescribed by law,” the General Assembly

possessed constitutional authority to prescribe, by statute, how those vacancies would

be filled. Id. at 340-41 (emphasis added). In other words, Baker reconciled Sections

19 and 10 of Article IV by recognizing that Section 10 “otherwise provided” a role for

the General Assembly.

By contrast, no provision of Article IV “otherwise provide[s]” a role for the

General Assembly in determining how vacancies on the Supreme Court and Court of

Appeals are filled. For those offices, Article IV, Section 19 stands alone. Under

Baker’s logic, the General Assembly may not impose additional constraints by

statute.

Article IV, Section 19 is not silent on whether the General Assembly may limit

the Governor’s choice of appointee to the appellate courts. It speaks directly by

confining any limits on that choice to those “otherwise provided in” Article IV. The

Judicial Vacancies Provision imposes a significant, new limitation found nowhere in

Article IV. Accordingly, it exceeds the General Assembly’s constitutional authority.

3. Historical practice confirms the textual reading

Historical practice, while not controlling, may illuminate the meaning of

constitutional provisions. See Baker, 330 N.C. at 416. The history of judicial vacancy

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Collins, J., concurring in part and dissenting in part

appointments in North Carolina is consistent with the interpretation of Article IV,

Section 19 outlined above and inconsistent with Legislative Defendants’ position.

The people adopted a Constitution in 1868 that provided for the popular

election of Supreme Court justices and vested the Governor with the power to fill

judicial vacancies: “All vacancies occurring in the offices provided for by this article

of this Constitution shall be filled by the appointment of the Governor, unless

otherwise provided for, and the appointees shall hold their places until the next

regular election.” N.C. Const. art. IV, § 31 (1868). When Article IV was substantially

revised, the people preserved this structure, again providing that vacancies in Article

IV offices “shall be filled by appointment of the Governor” “[u]nless otherwise

provided in this Article.” N.C. Const. art. IV § 19 (1971).

When the General Assembly sought to impose the additional qualification that

judicial officers be licensed to practice law in North Carolina, it did so not by statute

but by proposing a constitutional amendment. See 1979 N.C. Sess. Laws, ch. 638, §

1 (H 1182) (proposing to amend Article IV to add Section 22). The voters accepted

the proposed amendment, and Section 22 was added to Article IV. The General

Assembly’s choice reflects its understanding that for offices governed by Section 19,

the Governor’s appointment power is limited only by qualifications “otherwise

provided in this Article,” and that any new limit had to be added to Article IV itself.

Similarly, and more recently, when the General Assembly sought to

fundamentally alter the process for filling judicial vacancies, it did so by proposing a

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Collins, J., concurring in part and dissenting in part

constitutional amendment to repeal Article IV, Section 19 and replace it with a

different system. See N.C. Sess. Laws 2018‑132, §§ 4-6. The General Assembly

presented the amendment to the voters with the explanation that repealing Section

19 was necessary because “the Governor has sole appointment power” to fill judicial

vacancies that occur between judicial elections:

Constitutional amendment to change the process for filling

judicial vacancies that occur between judicial elections

from a process in which the Governor has sole appointment

power to a process in which the people of the State

nominate individuals to fill vacancies by way of a

commission comprised of appointees made by the judicial,

executive, and legislative branches charged with making

recommendations to the legislature as to which nominees

are deemed qualified; then the legislature will recommend

at least two nominees to the Governor via legislative action

not subject to gubernatorial veto; and the Governor will

appoint judges from among these nominees.

Id. § 6 (emphasis added).

The voters rejected that proposed amendment in the 2018 general election.

Legislative Defendants now argue that, notwithstanding their explicit

acknowledgement to the voters, Article IV, Section 19 allows the General Assembly,

by statute alone, to direct how appellate judicial vacancies must be filled. Legislative

Defendants’ present stance is incongruent with the General Assembly’s prior

acknowledgement, and the text and structure of Article IV do not support it.

The General Assembly’s own statutory enactments also align with its previous

acknowledgment to the people and my own reading of Article IV, Section 19. When

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Collins, J., concurring in part and dissenting in part

the General Assembly first enacted Section 163‑9 in 1967, and when it later amended

that statute to account for the creation of the Court of Appeals and various timing

changes to elections, the General Assembly did not attempt to restrict the Governor’s

choice of appointee for appellate vacancies. It simply mirrored the Constitution’s

requirement that such vacancies “shall be filled by appointment of the Governor.”

N.C. Const. art. IV § 19. It also did not add a partisan list requirement for appellate

courts in 1981 when it imposed such requirements for certain other offices, including

district court judges, whose vacancies Article IV, Section 10 expressly provides for “in

a manner prescribed by law.” See 1981 N.C. Sess. Laws 763.

This longstanding practice of leaving the Governor free to choose from all

constitutionally qualified attorneys when filling appellate judicial vacancies, coupled

with the resort to constitutional amendment when the General Assembly sought to

add new constraints, confirms that Article IV, Section 19 is understood as a limit on

legislative authority.

G. Conclusion

For these reasons, I conclude the Judicial Vacancies Provision impermissibly

infringes on the Governor’s appointment authority in Article IV, Section 19. I would

therefore affirm the three-judge panel’s order granting summary judgment to the

Governor on the Judicial Vacancies Provision issue.

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