January 25, 1996
HAND DELIVERED Hon. James B. Hunt, Governor State of North Carolina 116 W. Jones Street Raleigh, North Carolina 27603-8001
RE: Advisory Opinion; Chapter 321 of the 1993 Session Laws; Additional Judgeships for District Court Districts 3A and 20
Dear Governor Hunt:
This is in response to your letter of January 23, 1996, in which you, the Acting Director of the Administrative Office of the Courts and the Executive Secretary-Director of the the State Board of Elections requested an advisory opinion on the method to be followed in filling two district court judgeships created for District Court Districts 3A and 20 by Chapter 321 of the 1993 Session Laws.
Facts On July 9, 1993, the General Assembly ratified Chapter 321 of the 1993 Session Laws. Section 200.6, subsections (d), (e) and (f) of Chapter 321 created two additional offices of District Judge, one to be located in District Court District 3A and the other to be located in District 20. Sections 200.6(e) and 200.6(f) specified that the new judgeships would come into existence the first Monday in December 1994; that the terms for these new judgeships would run from the first Monday in December 1994 for four years and that the offices would be filled by qualified persons elected during the 1994 election cycle.
North Carolina is subject to the provisions of Section 5 of the Voting Rights Act of 1965, 42
U.S.C. § 1973c. This federal law prohibits any covered state that seeks to enforce or administer any change in its voting practice or procedure from doing so until it submits the change to the United States Attorney General and the Attorney General approves (preclears) the change. Chapter 321 was submitted to the Attorney General for preclearance on August 13, 1993, by the Administrative Office of the Courts. On February 14, 1994, the Attorney General notified the Director of the Administrative Office of the Courts that she objected to the additional judgeships in District Court Districts 3A and 20.
No attempt was made to enforce or administer the provisions of Chapter 321 or any other provision of law that pertained to the new judgeships in District Court Districts 3A and 20. Accordingly, the State Board of Elections did not accept Notices of Candidacy in 1994 for the two judgeships; no candidate campaigned for these offices; they did not appear on the official ballot for the 1994 election cycle; no certificate of election was issued in regard to these offices; no one took the oath for either office on the second Monday in December 1994 and, later, no attempt was made to appoint any person to the office at any time after the first Monday in December 1994.
On January 11, 1996, the Attorney General granted preclearance to these two offices.
Consequently, North Carolina officials may now enforce and administer the provisions of
Chapter 321 and any other laws applicable to the two new judgeships for Districts 3A and 20.
Question Presented
How are the new offices of District Judge for District Court Districts 3A and 20 to be filled?
Analysis
The North Carolina Constitution, Article IV, § 10, entitled "District Courts" authorizes the
General Assembly to divide the State into a convenient number of local districts, prescribe where
the District Courts shall sit and authorize more than one judge per district. Thus, the General
Assembly had unquestioned power to create additional offices of District Judge for Districts 3A
and 20. Under the terms of section 200.6, the offices of District Judge for District 3A and District
20 were to come into existence the first Monday in December 1994. In addition to creating the
two new judgeships, the General Assembly through Chapter 321 specified that the occupants of
the new judgeships would be elected in the 1994 general election for four year terms beginning
the first Monday in December 1994.
Before the provisions of Chapter 321 could be administered or enforced, they were required to be
precleared by the United States Attorney General under Section 5 of the Voting Rights Act of
1965. Chapter 321 was submitted for preclearance on August 13, 1993; preclearance on the new
judgeships for Districts 3A and 20 was denied on February 14, 1994. The denial of preclearance
made all provisions of state law pertaining to these offices unenforceable.
The immediate consequence of denial of preclearance was to prohibit the State Board of
Elections from conducting an election for the two offices. The denial of preclearance, however,
did not take away from the legislature its power under state law to create offices. Accordingly,
when the first Monday in December 1994 arrived the new judgeships with four year terms came
into existence by operation of this law. There was, however, no one elected to take the office as
contemplated by the General Assembly in Chapter 321. The result was that the newly created
judgeships were vacant.
The North Carolina Constitution, Article IV, § 10, states: "Vacancies in the office of District
Judge shall be filled for the unexpired term in a manner prescribed by law." The General
Assembly in N.C. Gen. Stat. § 7A-142 has enacted a law that prescribes the manner in which a
vacancy in the office of district judge is to be filled. Basically, it authorizes the Governor to
appoint a qualified individual to hold the office for the unexpired term from nominations
submitted by the bars of the judicial districts involved. Ordinarily, vacancies in the two new
judgeships would have triggered these provisions; however, since the Act creating the offices had
not been precleared, these provisions could not be enforced. The result was that the two
judgeships remained vacant while the terms continued to run.
By letter dated January 11, 1996, the Attorney General reconsidered the earlier denial of
preclearance and allowed preclearance of the two judgeships. The time for the election has
passed and slightly over two years of the term has elapsed and the offices are still vacant. The
granting of preclearance allows the provisions of Article IV, § 10 of the North Carolina
Constitution and N.C. Gen. Stat. § 7A-142 to be enforced and administered. Therefore, the
Governor may fill the new offices of District Judge in Districts 3A and 20 by appointment in
accordance with the procedures set forth in N.C. Gen. Stat. § 7A-142.
N.C. Gen. Stat. §7A-142 provides that vacancies in these two offices should be filled by the Governor for the unexpired term (through the first Monday in December, 1998) "from nominations submitted by the bar of the (relevant) judicial district . . . ." That statute further provides "(i)f the district bar fails to submit nominations within 30 days from the date the vacancy occurs, the Governor may appoint to fill the vacancy without waiting for nominations." When, then, did the vacancy occur?
An argument may be made that the vacancy occurred on January 11, 1996, the date the Attorney
General precleared the additional judgeships. However, we believe that the better argument, and
the one more fair to the district bars which may wish to submit nominations, is that the vacancies
occur on January 25, 1996, the date upon which this Office has opined that there is a vacancy.
Conclusion
The offices of District Judge for Districts 3A and 20 created by Chapter 321 have been vacant
since their creation. Slightly less than two years remain on the terms for these offices. The
portion of Chapter 321 creating the offices was precleared by the United States Attorney General
on January 11, 1996. You may fill the remaining portion of the term of these vacant offices by
appointment under the provisions of N.C. Gen. Stat. § 7A-142.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Charles M. Hensey
Special Deputy Attorney General