April 15, 1996
Mr. Marvin A. Bethune Mecklenburg County Attorney Ruff, Bond, Cobb, Wade and McNair, LLP Two First Union Center Suite 2100 Charlotte, N. C. 28282-8283
RE: Advisory Opinion: Local Funding of Additional Assistant District Attorneys and an Additional Superior Court Judge for Mecklenburg County; N. C. Gen. Stat. §§ 7A-41; 7A-46; 7A-60; 7A-64; Constitution of North Carolina Art. IV § 9
Dear Mr. Bethune:
This letter is in response to your letter dated March 20, 1996 and in follow up to Vice-Chairman Tom Bush’s letter dated January 15, 1996. Mr. Bush, and the other County Commissioners through your request, seek clarification on whether state law would allow local funding of assistant district attorneys and superior court judges.
Structurally, the General Court of Justice exists as a State-funded unified court system under Article IV of the North Carolina Constitution. A superior court judgeship is a statewide elected constitutional office. Pursuant to Article IV, Sec. 9 and N. C. Gen. Stat. § 7A-41(a), the organization of judicial districts and number of resident superior court judges are allocated. The number of regular, elected superior court judges assigned to Mecklenburg County cannot be changed except by statute. Similarly, the number of permanent full-time assistant district attorneys in a judicial district cannot be changed absent legislative action. N.C. Gen. Stat. § 7A60 (a1); § 7A-63. The number of resident judges or permanent full-time assistant district attorneys in a judicial district cannot be changed absent legislative action. Alternative means do exist, however, to increase prosecutorial and judicial capacity in a district or a temporary basis.
N.C. Gen. Stat. § 7A-64(1) provides temporary assistance when dockets are overcrowded. Under § 7A-64 the district attorney, upon a factual showing of docket accumulation beyond his capacity to keep reasonably current, can obtain temporary assistance. This can include temporarily appointing qualified attorneys to assist the requesting district attorney. The number, length of service, and compensation of the temporary appointee is fixed by the Administrative Office of the Courts. However, although county funds can be used to employ such appointees on a temporary basis, the funding must be approved and administered by the Administrative Office of the Courts. Alternatively, privately retained attorneys can assist the prosecuting district attorney on a case-by-case basis at the discretion of the trial judge. State v. Best, 280 N.C. 413, 415-17, 186 S.E.2d 1 (1972). Finally, although the number of regular resident superior court judges sitting in a judicial district is fixed by statute and not alterable absent statutory authorization, court capacity can be increased without actually adding a resident judge. Special sessions of Superior Court are contemplated under the authority of N. C. Gen. Stat. § 7A-46. A regular, special or emergency judge can be assigned to a special session. The power to order special terms can be necessitated by but is not restricted to the accumulation of cases on the docket. See, State v. Register, 133 N.C. 746, 46 S.E.21 (1903). The Chief Justice determines the need for special sessions in a judicial district.
In summary, legislative action is the only way to change the number of permanent full-time assistant district attorneys or resident superior court judges assigned to a particular judicial district. However, based on particularized factual showings to the Director of the Administrative Office of the Courts, temporary assistant district attorney positions can be created by that agency and funded with local funds. At the discretion of the Chief Justice, special sessions can be added to a district’s schedule. Your efforts to channel money into the court system to enhance the district’s prosecutorial efforts must follow these statutory and constitutional guidelines.
We trust this fully answers your inquiry. Let us know if we can be of further assistance.
Ann Reed Senior Deputy Attorney General
Lars. F. Nance
Special Deputy Attorney General