April 14, 1981
Subject:
Constitution; Courts; Judges; Qualification of Justices and Judges; Must be Attorneys, Exception.
Requested By:
Honorable Arnold O. Jones District Court Judge, 8th District
Question:
May a layman serving as a District Court Judge on and prior to January 1, 1981, resign or not seek re-election and still be qualified as a candidate for Judge in a subsequent election under Section 22, Article IV of the North Carolina Constitution?
Conclusion:
Yes. Article IV, Section 22 has not been construed by our Supreme Court. However, we believe the intent of Section 22 was to create a "grandfather" protection for those persons who were nonattorney judges on or before January 1, 1981.
At the November 1980 General Election, the people of North Carolina adopted a constitutional amendment codified as Article IV, Section 22, which reads:
"Sec. 22. Qualification of Justices and Judges. Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of District Court. This section shall not apply to persons elected to or serving in such capacities on or before January 1, 1981."
Prior to the adoption of the amendment, which became effective on January 1, 1981, no Judge or Justice was required to be an attorney as a qualification to holding judicial office and any voter was eligible for election to a judicial office.
The language of the first sentence of Sec. 22 is unambiguous. However, the second sentence is subject to two interpretations:
- As a grandfather clause that any person elected as a judge or serving as a judge at any time on or before January 1, 1981, is forever excepted from the requirement that a judge must be authorized to practice law.
- As a temporary grandfather clause that those judges elected in November 1980, and those serving a term on January 1, 1981, may continue to serve those terms but must be authorized to practice law for any subsequent term.
The purpose of the Amendment clearly was to require judges to be persons authorized to practice law. The terms of all judges, except a district court judge, are fixed by the Constitution. Thus, unless the amendment itself, or a statute as to the district court, speaks to the term of office, the terms are not affected by the adoption of the Amendment.
It was necessary, of course, to put the second sentence in the Amendment since this would clarify two things: (1) that non attorneys elected judges in November 1980 would be eligible to serve that term; (2) that those judges already in office who were not attorneys and were still in office on January 1, 1981, could continue to serve.
We hold, however, that the plain language of the Constitution is that the Amendment does not apply to any person elected to or serving as a judge on or before January 1, 1981. Therefore, it is a complete "grandfather" clause and any person within that classification may hold the office of judge even though not authorized to practice law, and that eligibility continues to exist during that persons life time. It does not matter that such person may take a "break" in such service, by not seeking re-election and waiting for some time to seek election to a subsequent term. Likewise, such person may have served as a judge, for example, in 1975 but was not serving as a judge on January 1, 1981, and yet he would be eligible to serve, if elected.
Rufus L. Edmisten Attorney General
James F. Bullock Senior Deputy Attorney General