RALEIGH, N.C. (CN) - A panel of North Carolina Court of Appeals judges quashed Governor Josh Stein's case to retain full control over filling appellate judicial court vacancies Wednesday.

Stein filed suit against Republican legislative leaders last year, challenging a hurricane relief package that also reduced the power of incoming Democrats after Republicans lost their supermajority in the 2024 elections. 

The controversial bill limits Stein's ability to fill vacancies in the state Supreme Court and Court of Appeals, requiring him to select a nominee from a list provided by the political party of the judge or justice departing the seat. Should a Republican judge leave their seat, this would prevent Stein, a Democrat, from filling the vacancy with a judge from his political party.

Speaker of the House Destin Hall and Senate President Pro Tempore Phil Berger upset the constitutional balance of power when they passed the law, Stein claimed. 

The parties had argued before the appeals panel last October, with the defendants claiming that the General Assembly is allowed to create political qualifications for judicial vacancy appointees. 

The three-judge panel split along party lines, with the Republican judges upholding the legislature's changes to the judicial vacancies in their majority opinion.

"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,'" Judge John Tyson, a Republican, wrote in the majority opinion. 

The panel remanded the case back to Raleigh court with instructions to grant the legislative defendants' motion for summary judgment, and deny Stein's. 

In his case, Stein had also confronted changes to his appointment ability on the North Carolina Utilities Commission and Building Code Council. The governor lost the ability to appoint the commissioner on the utilities board, and had the number of members he could appoint to the building code council reduced. But a lower court disagreed that the legislature's changes to the boards were unconstitutional, while also finding that his judicial appointment ability was constitutionally delegated.  

The appeals panel upheld the restructuring of the building code council and found that the power to confirm statutory officers, like those upon the utilities commission, is not vested in either the executive or legislative branch. 

"The General Assembly holds the residual power of the people as their elected representatives and has made a choice," Tyson wrote. "After the constitutional mandate, giving the General Assembly the right to reorganize state administrative departments by 1975, the Constitution expressly gives them the right to modify the departments functions, powers, and duties 'from time to time.'" 

The panel's lone Democrat, Judge Allegra Collins, dissented from the majority over the utilities commission and appellate judicial vacancies. The requirement for Stein to select a judge or justice from a list of recommendations substantially displaces his appointment power, she said. 

"Labeling this partisan-screening requirement a 'qualification' does not transform it into one," she said. "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 ... And as legislative defendants conceded at oral argument, there is nothing to prevent the General Assembly from even further limiting its gatekeeping requirements."

Voters previously rejected a constitutional amendment that would establish a commission in charge of submitting judicial nominees to the General Assembly. The legislature would then recommend appointees to the governor. The amendment failed overwhelmingly when put to the ballot in 2018. 

Since taking office, Stein has also filed several lawsuits over other provisions in the challenged law, including over election board appointments and the emancipation of the state highway patrol. However, he has struggled to obtain success before the state's Court of Appeals, where Republicans hold 12 of the 15 seats. 

Last year, a Court of Appeals panel held that Stein's appointment ability over the state's board of elections - which the governor has held for over a century -  could be removed from his office and given to the Republican state auditor. Stein also declined to send his state highway patrol case to the Court of Appeals after a panel of Raleigh judges unanimously found that the changes he was disputing were constitutional. 

Berger and Hall did not reply to a request for comment, but Stein vowed to keep fighting.

"The North Carolina Constitution gives the responsibility to fill appellate vacancies to the governor, not unelected political operatives," a spokesperson for Stein said. "We will appeal this decision to protect the governor's authority to make these critical judicial appointments and stop the injection of extreme partisanship in the courts."

Stein has 30 days to appeal the panel's decision to the state's Supreme Court, which has discretion over the cases it accepts.  

Source: Courthouse News Service