A three-judge panel has allowed State Treasurer Brad Briner to intervene in a legal dispute between Gov. Josh Stein and state legislative leaders. Stein challenges a law that shifts one of his state Utilities Commission appointments to Briner.
Briner announced Wednesday his decision to name Office of Administrative Hearings Director Donald van der Vaart to the five-member Utilities Commission. Van der Vaart was secretary of the state Department of Environmental Quality under former Gov. Pat McCrory.
Van der Vaart would join the commission on July 1, replacing a gubernatorial appointee whose term ends on June 30.
The treasurer also filed a motion Wednesday seeking to intervene in a lawsuit titled Stein v. Hall. The motion indicated that Stein and top lawmakers have consented to Briner’s participation in the case. The panel overseeing the case granted the motion Thursday, according to state eCourts records.
“[T]he Treasurer seeks to defend Session Law 2024-57’s provisions that authorize his office to appoint a member to the North Carolina Utilities Commission,” Briner’s lawyers wrote. “This issue is one of the central legal questions raised in the Governor’s complaint, which contends that our constitution prohibits the General Assembly from granting the Treasurer the legal duty of appointing one of the five members of the Utilities Commission.”
“[T]he Governor claims that only his office — and not the Treasurer’s office — can appoint a fifth member to the Utilities Commission,” the motion added. “The relevant provisions of Session Law 2024-57, unless held invalid by a court, empower the Treasurer to make such an appointment and thereby require the Treasurer to administer this statutory appointment power. Therefore, the Governor’s claims about the appointment, and the Legislative Defendants’ defenses, are grounded in legislation that is administered by the Treasurer.”
“[T]his case presents important questions concerning the separation of powers and the appointment of a member to the Utilities Commission — questions to which the Treasurer is a central figure in light of the challenged legislation. Given the Treasurer’s unique interest in this important case, intervention is especially appropriate,” Briner’s lawyers argued.
Stein’s lawyers filed paperwork on April 21 seeking a temporary restraining order and preliminary injunction against the appointment change.
The disputed Utilities Commission appointment makes up one piece of a lawsuit Stein filed on Feb. 7 against multiple provisions of Senate Bill 382, enacted in 2024 over then-Gov. Roy Cooper’s veto. Stein’s suit also challenges a provision in SB 382 that would restrict his appointments if he fills a statewide judicial vacancy. Stein challenges another law that limits his authority over the state Building Code Council.
Before SB 382, the governor appointed three of the commission’s five members. Legislative leaders appointed the other two members. The governor also selected the commission’s chair.
The challenged law moves one of Stein’s appointments to Briner. SB 382 also removes Stein’s authority to select the chair.
“As a result, the Governor will no longer be able to appoint, supervise, or remove a majority of the members of the Utilities Commission,” Stein’s lawyers wrote.
“Starting July 1, 2025, and upon legislative confirmation of the Treasurer’s appointee, the Utilities Commission is likely to elect a new chair that is not one of the Governor’s appointees,” Stein’s lawyers wrote. “These changes will cause immediate and irreparable injury, loss, or damage to the Governor if allowed to take effect.”
“The restructuring of the Utilities Commission violates the North Carolina Constitution — specifically Sections 1 and 5(4) of Article III and Section 6 of Article I,” the court filing continued.
“Senate Bill 382’s changes to the Utilities Commission prevent the Governor from fulfilling the duties and exercising the powers assigned to him in the Constitution,” Stein’s lawyers added.
SB 382 combined Hurricane Helene relief with a series of changes to state government’s structure. Lawmakers approved the measure in December over Cooper’s veto. Both Cooper and Stein are Democrats. Briner and legislative leaders are Republicans.
In separate lawsuits, Stein challenges plans to move the State Board of Elections under the authority of State Auditor Dave Boliek, a Republican, and to prevent the governor from appointing a new commander of the State Highway Patrol.
“Senate Bill 382 usurps executive power by allowing the General Assembly to control the execution of the laws — a duty that is constitutionally committed to the Governor,” Stein’s lawyers wrote in the original complaint. “And the Bill attempts to rewrite the Governor’s constitutional powers by statute rather than a constitutional amendment submitted to the people.”
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