Court of Appeals Issues Mixed Ruling In Separation of Powers Case Regarding Certain Board Appointments

Today, a three-judge Appeals Court panel comprised of all Republican judges issued a mixed ruling in Stein V. Berger, a case regarding separation of powers issues for several important boards that make state-level policies. This case began in 2023, when then-Gov. Roy Cooper filed a lawsuit against changes made to all seven boards, arguing that the changes weakened the Governor’s influence. 

The appellate decision affirmed the General Assembly’s changes to the Wildlife Resource Commission, Emergency Managment Commision, Coastal Resources Commission, and Residential Code Council. The three-judge panel rejected the changes to the Board of Transportation, Economic Investment Committe, and the Commission on Public Health. This decision from the lower court, with the only difference being the decision on Public Health.  

Judge Carpenter wrote, “The Governor and State argue the panel erred by denying in part the Governor’s motion for summary judgment, thereby allowing the restructuring of the CPH, EMC, CRC, WRC, and BCC. Legislative Defendants argue the panel erred by denying in part their motion for summary judgment, thereby enjoining the restructuring of the BOT and EIC. In essence, the Governor and State contend the restructuring of the seven boards and commissions violates the separation of powers clause of Article I, Section 6 of the North Carolina Constitution, whereas Legislative Defendants disagree.”  

The core argument is that the Executive Branch needs to have the majority appointment power for boards that implement certain executive policies.  

Tim’s Take: This case is likely headed to the North Carolina Supreme Court, along with the litigation surrounding Senate Bill 512, to further define the separations of powers between the legislature and the governor. One key thing to keep an eye on, is that if the Supreme Court sides with Stein, its likely that the appointment power for the State Board of Elections will shift from the Republican State Auditor to Democrat Governor Josh Stein, shifting the partisan affiliation of the group administering over North Carolina elections.