October 8, 1997
Mr. David A. Phillips Attorney at Law P. O. Box 1172 Gastonia, NC 28053-1172
RE: Advisory Opinion; Magistrates; Article 16 of Chapter 7A of the General Statutes
Dear Mr. Phillips:
You are the attorney for Matthew Hambridge, a Gaston County magistrate. On behalf of Magistrate Hambridge, you request our opinion whether a magistrate must remain a resident of the county for which he was appointed in order to continue to hold the office of magistrate for the term of the appointment. Stated another way, if one is appointed magistrate to a two-year term of office, may the magistrate be removed from office for failure to reside in the county for which he was appointed?
For reasons which follow, it is our opinion that continued residence in the county for which a magistrate is appointed is not a prerequisite to remain in the office of magistrate for the term of the appointment.
A magistrate is a constitutional officer, whose function and authority are prescribed by the General Assembly. Article IV, Section 12(3) of the North Carolina Constitution. A magistrate is an officer of the District Court, N.C.G.S. § 7A-170, and is considered a public officer. Foust v. Hughes, 21 N.C. App. 268, cert. denied, 285 N.C. 589 (1974). The senior regular resident superior court judge appoints the magistrate for a two-year term "from the list of nominations [at least two, or more if requested by the judge] submitted by the clerk of superior court." N.C.G.S. § 7A-171(b). Since magistrates are appointed, rather than elected, there is no constitutional residence requirement. See, Article VI, Section 6 of the North Carolina Constitution. A magistrate may be suspended or removed from office for misconduct or physical incapacity. See, Article IV, Section 17(3) of the North Carolina Constitution and N.C.G.S. § 7A-173, which provides that the grounds for suspending or removing a magistrate "are the same as for a judge of the General Court of Justice."
Since neither the Constitution nor statutes specify a change of residence as a reason for removal of a magistrate, we must examine whether continued residence in the county for which he was appointed is a qualification to hold the office of magistrate.
N.C.G.S. § 7A-171.2 deals specifically with magistrates, is entitled "Qualifications for Nomination or Renomination," and provides in subsection (a) as follows: "In order to be eligible for nomination or for renomination as a magistrate an individual shall be a resident of the county for which he is appointed." The plain language of N.C.G.S. § 7A-171.2(a) makes clear that residence in the county is a qualification only for nomination or renomination. Once appointed a magistrate, residence is not a qualification to continue in that office during the term of the appointment. "Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein." 27 Strong’s N.C. Index 4th, Statutes, § 28.
In conclusion, it is our opinion that once the individual is appointed as a magistrate, continued residence in the county for which he was appointed is not a requirement to continue in office for the term of the appointment.
Andrew A. Vanore, Jr. Chief Deputy Attorney General