RALEIGH, N.C. (CN) - A panel of judges ruled Tuesday that the ability to fill judicial appointments is one that is constitutionally delegated to the North Carolina governor. 

North Carolina Governor Josh Stein and his predecessor, Roy Cooper, filed suit against Republican lawmakers in February, challenging a Senate bill that the Republican majority passed during their lame duck session, before they lost their veto-proof supermajority. The law was the focus of widespread public backlash after it was reported that it stripped power from incoming Democrats, including the governor and attorney general. 

Stein struck out against a section that would limit his ability to fill court vacancies in the state Supreme Court and Court of Appeals, a power he says he was exclusively granted as governor under the state constitution. 

In a two-page order that came the same day as arguments for summary judgment, the presiding panel agreed with Stein that changes to his judicial appointment power were unconstitutional. The panel did not find that changes to his appointment ability on the North Carolina Utilities Commission and building code council were similarly unconstitutional, finding in favor of legislative defendants, who made changes to the makeup of the boards.    

"The face of the judicial vacancy provision attempts to limit the plenary power of the governor. It is facially unconstitutional," Dan Smith, counsel for Stein, argued at a Raleigh hearing for summary judgment on Tuesday. 

The law restrains the governor's power to fill vacancies, Smith said, because Stein is forced to select a replacement from a list of three attorneys recommended by the party the former judge was affiliated with. 

The state constitution outlines a process allowing the legislative branch to fill district and magistrate positions, but did not do so for the Court of Appeals and the state Supreme Court, instead directing all other vacancies to be "filled by appointment of the governor," Smith said.

"The people knew how to authorize legislative involvement in the vacancy process, and then did so when they wanted to," Smith said. "If we're free to ignore the constitution's language, then what is the point of the constitution?"

Noah Huffstetler III, counsel for the legislative defendants, contended that while the federal Constitution grants Congress certain powers, North Carolina's state constitution outlines restrictions of powers. Any particular power that the constitution does not bar the General Assembly from having, the Legislature can exercise, Huffstetler said. 

"The basic misunderstanding of the governor's argument is that it failed to recognize the nature of the Legislature's power in North Carolina," Huffstetler said. The governor must prove the statute is unconstitutional, but his arguments don't go that far, he said.  

The burden is on the governor to prove there are no circumstances in which the law could be constitutional, Lorin Lapidus, counsel for the legislative defendants, said. If an unaffiliated judge steps down and no party makes a recommendation, the governor can then appoint any attorney of his choice to the judgeship, Lapidus said. 

Just because one part of the bill may be constitutional does not make unconstitutional sections enforceable, Smith said. 

The governor's appointment only serves through the end of the remaining term, allowing residents to elect a judge of their choice when that term expires. 

The appointments are valuable to the governor because he was previously able to fill a vacant position with a judge from his party and was not limited to the party of the departing judge. Should a Republican judge on the Court of Appeals or Supreme Court vacate their position, Stein would be able to appoint a Democrat to serve out the remainder of their term. 

Stein also challenged changes to the state utilities commission and building code council. His ability to appoint a commissioner to the utilities commission was removed and given to State Treasurer Bradford Briner, a Republican, along with his ability to select the commission's chair. Losing the appointment means that Stein no longer has authority over a majority of the members on the utilities board -  he will be able to select two of five -  which he says he is required to have to ensure that it is appropriately executing laws. A position on the board will turn over on July 1, and Briner has already announced his pick for replacement. 

Six members on the building commission are also now appointed by the legislative defendants - Senate President Pro Tempore Phil Berger and Speaker of the House Destin Hall -  and seven by Stein, falling short of the nine members required to revise the building code. 

The change is a separation of powers issue, attorney Amanda Hawkins said Tuesday, as the General Assembly has assumed executive abilities. The building code commission is an executive board, and the Legislature now has the seats necessary to exert control over it. Stein may have a majority, Hawkins said, but Republican appointees can prevent the governor from being able to take action.  

And for the utilities commission, the changes deprive Stein of the ability to appoint, supervise and remove members, as he now lacks a majority and cannot choose the commission's chair. 

"Allowing the General Assembly to play games, to shift appointments, undermines accountability," Hawkins said. 

The General Assembly has the power to organize and reorganize the state government, Matthew Tilley, counsel for the defendants, said, and not all executive boards need to be controlled by the governor. Stein is not exclusively granted the right to make appointments to commissions and boards, Tilley said, and the Legislature's changes do not "unreasonably disrupt a core power of the executive branch."

Superior Court judges James Ammons Jr., Imelda Pate and Special Superior Court Judge A. Graham Shirley heard the case.

Stein has also filed several lawsuits over other provisions in the challenged Senate bill, including over election board appointments and the emancipation of the state highway patrol.  

Source: Courthouse News Service