RALEIGH — The North Carolina Court of Appeals ruled 2-1 in favor of the General Assembly over Gov. Josh Stein in the lawsuit involving a state law that changed certain appointments last Wednesday.
Court of Appeals Judge John Tyson issued the ruling with Judge Valerie Zachary concurring and Judge Allegra Collins dissenting. Tyson and Zachary are Republicans, and Collins is a Democrat.
Stein’s lawsuit was filed over Session Law 2024-57 (Senate Bill 382), which made changes to judicial and Building Code Council appointments as well as giving the state treasurer power to make appointments to the Utilities Commission. The bill, which included $252 million in Hurricane Helene relief funding, became law after a successful override of then-Gov. Roy Cooper’s veto.
The Court of Appeals upheld the Superior Court ruling on the Building Code Council and State Utilities Commission.
State Treasurer Brad Briner appointed Donald van der Vaart to the Utilities Commission effective July 1, 2025. Before the appointment, Van der Vaart was the director of the state Office of Administrative Hearings. He had also served as the state’s environmental secretary under former Republican Gov. Pat McCrory.
The Court of Appeals ruled the restructuring of appointments to the Building Code Council and Utilities Commission had not violated the separation of powers.
“This is another affirmation that executive branch functions do not sit solely with the governor here in North Carolina,” Briner said in a press release. “The entire council of state is duly elected by all citizens of the state, and should carry out executive roles and responsibilities.”
“Another victory secured!” Senate Leader Phil Berger (R-Eden) wrote in a social media post. “Despite Gov. Stein’s efforts to weaponize the courts to usurp the General Assembly’s authority, this ruling recognizes reality and proper constitutional order. In North Carolina, the governor is not a king.”
The ruling also reversed a previous ruling on the portion of the laws putting limits on the governor’s power to fill vacancies on the state Supreme Court and Court of Appeals. The judicial appointment changes in the law would only allow the governor to choose from nominees selected by the political party of the judge who was vacating their seat.
A spokesperson from Stein’s office said an appeal would be filed.
Stein and Cooper both had characterized the changes to appointments as a “power grab” and had filed two other lawsuits over the law.
One lawsuit was over changes to appointing the head of the State Highway Patrol, and the other regarded transferring authority over the State Board of Elections (NCSBE) to the State Auditor’s Office. Republicans won both cases.
Regarding the highway patrol case, the two Republicans and one Democrat on a Superior Court panel unanimously ruled last June that Stein had failed to prove beyond a reasonable doubt that Senate Bill 382 was unconstitutional. The governor decided not to appeal that ruling.
Last May, the North Carolina Supreme Court ruled 5-2 down party lines against Stein’s appeal over State Auditor Dave Boliek retaining authority over the NCSBE. While the case made its way through the courts, Boliek was allowed to make appointments to the NCSBE, changing it from 3-2 Democrat control to 3-2 Republican.
