By: Andrew Ring
On February 7, 2025, North Carolina Governor Josh Stein (Stein) filed a complaint in state court challenging portions of Senate Bill 382 (SB 382),[1] a disaster relief bill passed last December designed to provide relief to Western North Carolina following Hurricane Helene.[2]
Stein is not challenging the aid portions of the bill, however, and instead is seeking to nullify provisions that severely limit the Governor’s discretion to nominate replacements for vacant North Carolina appellate and Supreme Court seats.[3] Previously, the Governor had seemingly “unfettered” decision-making with no oversight or input from the legislative branch.[4] Now, SB 382 requires that the Governor fill both appellate and Supreme Court vacancies by selecting from a list of three candidates curated by the executive committee of the departing judge’s political party.[5]
While several states have legislatively implemented selection committees to provide candidates for judicial vacancies,[6] the North Carolina legislature’s attempt may prove to be difficult given the text of the state Constitution potentially conflicts with SB 382.
The Arguments
In recent years, the Democratic Governor and Republican Legislature have become familiar foes in North Carolina Courts, with both sides seeking to define the role of the executive in ways favorable to their respective parties.[7]With that in mind, below is an overview of the arguments that both sides will likely bring forward.
While the Republican legislative defendants in the SB 382 lawsuit have not filed an Answer as of now,[8] their argument will likely center on both constitutional interpretation and separation of powers arguments. Article IV, Section 19 of the North Carolina Constitution states that “all vacancies occurring in [the court of appeals and Supreme Court] shall be filled by appointment of the Governor.”[9] The defendants will likely argue that the Governor is still filling the judicial vacancies by appointment and is therefore not violating the plain language of the North Carolina Constitution. Additionally, they will likely argue that this limitation on the Governor’s discretion is not enough to “prevent [the executive] branch from performing its constitutional duties,” which would violate the separation of powers clause.[10] After all, the Governor would still be “appointing” the vacancy, just now with a narrower set of options.
On the other hand, Democrat Governor Stein is arguing that both the plain language of Article IV, Section 19 and the express requirement of separation of powers in the North Carolina Constitution together render the vacancy changes unconstitutional.[11] Additionally, Stein is making a contextual argument that since the North Carolina Constitution lays out the vacancy appointment process for superior court judges that invites the General Assembly to make changes, the Founders would have done the same for appellate and Supreme Court vacancies had they so desired.[12] Stein also contends that the defendants already knew this type of change to the vacancy appointment process requires a constitutional amendment, given that during the November 2018 elections the measure was put on the ballot and shot down.[13]
What’s Next?
Both parties in this case are making arguments that have roots in the North Carolina Constitution. However, given recent North Carolina Supreme Court decisions clarifying the notions of separation of power, it seems the superior court might be inclined to grant Stein’s requested declaratory and injunctive relief.[14]
The Court has continued to emphasize the textual commitment to the separation of powers in the North Carolina Constitution by siding with the executive branch when the legislature has tried to constrain its authority.[15] For instance, in Cooper v. Berger, the Court held that the republican legislature’s attempt to constrain former democrat Governor Roy Cooper’s appointments to an executive branch commission violated the separation of powers.[16] In Cooper, the legislature modified the nomination and oversight power of the Governor to a state election committee, requiring the Governor to choose from a list of nominees from the opposing political party and only allowing committee member dismissal for malfeasance.[17] The Cooper Court found that constraining gubernatorial power in this way “impermissibly interfere[d] with the Governor’s ability to execute the laws in any manner.”[18]
While Cooper involved a separation of powers dispute regarding an executive branch commission,[19] Stein v. Hall is comparable in that it involves interference of the Governor’s appointment power. The Cooper Court emphasized the importance of the Governor maintaining control, without undue interference, of appointment powers granted to the Governor by the state Constitution.[20] The “selection list” model adopted in SB 382 constrains the Governor’s power to appoint judicial vacancies in the same vein as the measures struck down as unconstitutional in Cooper. With this comparison and the constitutional text in mind, it would not be surprising to see the superior court rule in favor of Stein and find the vacancy appointment measures unconstitutional.
While scholars have debated the importance of placing some check on a Governor’s appointment power, it seems that in North Carolina it needs to be done via constitutional amendment.[21] Given the importance and contentious nature of this issue, this case will likely make its way up to the North Carolina Supreme Court by the end of 2025 no matter which way the superior court rules.
[1] Verified Complaint at 1–2, Stein v. Hall, No. 25CV004705-910 (N.C. Sup. Ct. Feb. 7, 2025).
[2] The Disaster Recovery Act of 2024 – Part III, 2024 N.C. Sess. Law. 2024-57 (S.B. 382).
[3] Id. at § 120–22.
[4] See John V. Orth & Paul M. Newby, The North Carolina State Constitution 141–42 (2d ed. 2013); see also N.C. Gen. Stat. §163-9(a) (2024).
[5] Id.
[6] See Stephen Ware, Judicial Selection Fails Separation of Powers, 72 Cath. U. L. Rev. 299, 319 (2023).
[7] See e.g., Cooper v. Berger, 370 N.C. 392 (2018) (discussing separation of powers regarding executive oversight of elections).
[8] As of Feb. 16, 2025.
[9] N.C. Const. art. IV, §19.
[10] See Cooper, 370 N.C. at 414 (quoting State ex rel. McCrory v. Berger, 368 N.C. 633, 645 (2016)).
[11] See Verified Complaint at 5–7, Stein v. Hall, No. 25CV004705-910 (N.C. Sup. Ct. Feb. 7, 2025).
[12] Id. at 7.
[13] Id. There were 2,385,696 votes (66.85%) against modifying the Amendment and 1,183,080 (33.15%) in favor. Id.
[14] Id. at 1.
[15] See e.g., Cooper, 370 N.C. at 414; McCrory, 368 N.C. at 644–45.
[16] Cooper, 370 N.C. at 416–17.
[17] Id.
[18] Id. at 417.
[19] Id. at 416–17.
[20] See id. at 418.
[21] See Orth & Newby, supra note 4, at 325–26.
