Treasurer asks top NC court to clarify Council of State powers

It’s rare to see a litigant win a court case and then pursue an appeal. But that’s one notable aspect of State Treasurer Brad Briner’s recent North Carolina Supreme Court filings.

Briner hopes the state’s highest court will clarify the types of authority state lawmakers can assign to the elected Council of State.

Gov. Josh Stein, a Democrat, is battling Republican legislative leaders in multiple court cases. Each involves transfers of appointments to state boards. In some instances, appointments move from Stein’s office to Republicans on the Council of State, including the state auditor and insurance and agriculture commissioners.

One dispute involves an appointment to the North Carolina Utilities Commission. Senate Bill 382, approved in 2024, transferred one of Stein’s three utilities appointments to Briner.

Lower courts approved that appointment shift. Briner used his new authority to name former state environmental secretary Donald van der Vaart to the Utilities Commission last July.

“This is another affirmation that executive branch functions do not sit solely with the governor here in North Carolina,” Briner said at the time. “The entire Council of State is duly elected by all citizens of the state to carry out executive roles and responsibilities independent of the governor.” 

The North Carolina Court of Appeals upheld the utilities appointment shift in January. Yet the treasurer petitioned the state Supreme Court to review the case.

“The Treasurer won below,” Briner’s lawyers acknowledged. “But just technically prevailing can nonetheless be a Pyrrhic victory when the Court of Appeals declines to apply this [Supreme] Court’s precedent. Such a ruling leaves this Court’s constitutional doctrine in jurisprudential limbo and invites continued defiance by governors in future cases.”

Briner emphasized the high court’s earlier decision in a case called Stein v. Berger. It “announced a three-part framework for evaluating how the General Assembly may allocate executive functions among members of the Council of State,” the treasurer’s lawyers wrote. “That framework answered a question this Court had thrice declined to address, and it did so with clarity: executive functions are either prescribed by constitutional text, assigned by law, or inherent in a given executive role.”

“Functions falling outside these categories may be assigned by the legislature to any Council of State member,” Briner’s lawyers argued. “This framework recognizes our constitution’s plural executive model and rejects the unitary executive theory that Governor Stein champions.”

The utilities appointment dispute “offers an ideal vehicle for this Court to demonstrate how the Stein v. Berger framework operates,” the treasurer’s lawyers argued.

Briner later dropped his appeal. Yet the treasurer still hopes the state Supreme Court will address issues raised in his petition.

Stein appealed another piece of the legal dispute involving the Utilities Commission appointment. The state Supreme Court also could take up a case involving appointment shifts for seven other state boards and commissions.

The treasurer filed a document on Feb. 24 related to the ongoing disputes.

“The jurisprudential principles at stake in Stein v. Berger with respect to Council of State members are identical to the principles at stake in the Treasurer’s appointment of a member of the Utilities Commission in this case,” Briner’s lawyers wrote. “This Court should review these issues together.”

The governor and treasurer agree that “the question of redistributing appointment authority for Council of State members” merits the state Supreme Court’s attention. If justices agree, “the Treasurer respectfully requests that the issue be stated more broadly than as presented in the Governor’s petition,” Briner’s lawyers explained.

The treasurer frames the constitutional question in a single paragraph:

“The General Assembly has the constitutional power to prescribe duties for members of the Council of State. The General Assembly assigned the State Treasurer — a member of the Council of State — the duty to appoint one of the five members of the Utilities Commission, and assigned the Governor the duty to appoint two of the members. Is this arrangement a non-justiciable political question, and, if not, does the state constitution prohibit this arrangement?”

If this dispute involves a “political question,” in legal terms, courts have no role in addressing it. If courts conclude that the judiciary has a legitimate role, Briner hopes justices will clarify whether the utilities appointment shift complies with the constitution’s limits.

Briner could have spiked a proverbial football after winning the appointment dispute with Stein at North Carolina’s second-highest court. Yet his recent Supreme Court filings suggest a more expansive goal.

The treasurer wants more certainty about the General Assembly’s ability to define duties and powers for his job and other statewide elected offices.

Mitch Kokai is senior political analyst for the John Locke Foundation.