North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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November 18, 2004

The Honorable Christopher W. Bragg
Union County Courthouse
P.O. Box 5038
Monroe, NC 28112-5038

Re: Advisory Opinion; District Court Vacancy; N.C.G.S. §§ 7A-142; 163-9(d); 163-327(b)

Dear Judge Bragg:

This letter will respond to your opinion request dated November 15, 2004. The facts relating to your opinion request are as follows. On November 2, 2004, North Carolina held general elections, including elections for District Court Judge in Judicial District 20. The unofficial results of that election indicate that David McSheehan defeated the incumbent District Court Judge in Judicial District 20. On November 7, 2004, Mr. McSheehan died prior to taking office. The State Board of Elections has not yet certified the election results for Judicial District 20. We anticipate that this election will be certified within the next two weeks. Our responses to your specific questions are set out below.

(1) When does the vacancy in office occur so that the District Bar can meet to submit nominations to the Governor?

Article IV, Section 10 of the North Carolina Constitution establishes District Courts within this State and expressly addresses the election of judges to the District Court. This Section states: “Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law.” Article IV, Section 19 of the North Carolina Constitution is broader in scope than Section 10; Section 19 addresses vacancies in all judicial offices created by the Constitution, including but not limited to the District Court. This Section reads: “Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor . . . .” In N.C.G.S. §§ 163-9(d), 163-327(b) and 7A-142, the General Assembly has prescribed the manner of filling a district court judge vacancy. N.C.G.S. § 163-9(d) states:

Vacancies in the office of district judge which occur before the expiration of a term shall not be filled by election. Vacancies in the office of district judge shall be filled in accordance with N.C.G.S. 7A-142.

In addition, N.C.G.S. § 163-327(b) expressly provides that a vacancy occurs when a person elected to the district court dies prior to taking office:Death, Disqualification, or Resignation of Official After Election. -- If a person elected to the office of justice of the Supreme Court, judge of the Court of Appeals, or superior or district court judge dies, becomes disqualified, or resigns on or after election day and before he has qualified by taking the oath of office, the office shall be deemed vacant and shall be filled as provided by law.

See also N.C.G.S. § 128-7.1 (if any person elected to public office dies before qualifying for office, the office shall be declared vacant). N.C.G.S. § 7A-142, in turn, sets out the specific procedures for appointments to fill a vacancy in the office of district court judge. When, as here, the candidate was elected in a nonpartisan election, the statute provides that the district bar shall submit to the Governor the names of three persons who are residents of the district court district and are duly authorized to practice law in the district. Within sixty (60) days after the district bar submits the nominations to the Governor, the Governor shall appoint to fill the vacancy. If the district bar fails to make nominations within thirty (30) days from the date the vacancy occurs, the Governor may fill the vacancy without waiting further for nominations.

Although the office of district court judge is not currently vacant in that the incumbent’s term of office will not expire until the first Monday in December, once the election results are certified, there will exist a vacancy as to the successor to that office. Accordingly, the district bar should submit its nominations to the Governor within 30 days of the certification of the election.

Here, it appears that Mr. McSheehan will be “elected to public office” as that phrase is used in N.C.G.S. §§ 163-327(b) and 128-7.1 when the results of the election for Judicial District 20 are certified. Because Mr. McSheehan died prior to the certification of the election, the vacancy will arise when the election is certified. Accordingly, the District Court Bar may submit nominations to the Governor to fill this vacancy at any time between the date the election is certified and thirty (30) days thereafter.

(2) Can the defeated incumbent District Court Judge remain in office and for how long?

The defeated incumbent District Court Judge may remain in office until December 6, 2004 or until his successor is appointed, whichever occurs later. N.C.G.S. § 7A-140 provides that district court judges shall serve a term of four years, beginning on the first Monday in December following his or her election. Here, the incumbent District Court Judge (Judge Williams) was elected in November 2000 to a four-year term. Judge Williams will hold that office at least until December 6, 2004 (the first Monday in December). He may hold over longer if his successor is not appointed and qualified by December 6, 2004. Article IV, Section 19 of the North Carolina Constitution provides that in the case of judges:

If any person elected or appointed to any of these offices shall fail to qualify, the office shall be appointed to, held, and filled as provided in case of vacancies occurring therein. All incumbents of these offices shall hold until their successors are qualified.  (Emphasis added.) See also N.C. Const. Article VI, § 10 (“In the absence of any contrary provisions, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.”); N.C.G.S. § 128-7 (“All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.”). Thus, if Judge Williams’ successor is not appointed and qualified prior to December 6, 2004, Judge Williams will continue to hold office until such time as his successor is appointed.

(3) When a successor is appointed to fill this vacancy, what is the term of office that will be held by the new District Court Judge?

Article IV, Section 19 of the North Carolina Constitution sets out the general rule with respect to judicial vacancies:

Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices.

(Emphasis added.) The North Carolina Constitution, however, sets out in a section entitled “District Courts” more specific provisions with respect to the term of office when a vacancy occurs on the district court. Article IV, Section 10 states: “Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law.” (Emphasis added.) Consistent with the North Carolina Constitution, N.C.G.S. § 7A-142 provides that vacancies in the office of district judge “shall be filled for the unexpired term by appointment of the Governor.” Thus, in the case of a vacancy on the district court, the appointment is for the entire unexpired term. Accordingly, here, the Governor’s appointee shall hold that office until the first Monday in December, 2008.

We would be glad to answer any further questions you may have in connection with this matter.

Sincerely,

Christopher G. Browning, Jr.
Solicitor General