If a North Carolina district court judge was serving as a non-attorney judge on January 1, 1981, when a new constitutional amendment required judges to be licensed attorneys, can that judge later sit out a term and then run again, or does taking a break end the grandfather protection?

Plain-English summary

In November 1980, NC voters approved a constitutional amendment requiring all NC justices and judges (Supreme Court, Court of Appeals, Superior Court, District Court) to be licensed attorneys. The amendment took effect January 1, 1981. Before the amendment, NC had a long tradition of allowing lay (non-attorney) judges, particularly at the district court level in rural parts of the state. The amendment included a grandfather clause: "This section shall not apply to persons elected to or serving in such capacities on or before January 1, 1981."

District Court Judge Arnold O. Jones (8th District) was a non-attorney serving when the amendment took effect. He asked the AG: if I resign or decline to run again, can I still come back and run for the same seat later? Or does the grandfather protection require continuous service?

AG Rufus L. Edmisten and Senior Deputy AG James F. Bullock concluded that the grandfather clause is permanent and not tied to continuous service. The Constitution says it "shall not apply to persons elected to or serving in such capacities on or before January 1, 1981." Once a person fell within that classification, the AG read the eligibility to continue "during that person's lifetime." A break in service did not extinguish it. Even a person who had served as a judge years earlier (e.g., 1975) but was not serving on January 1, 1981, was still grandfathered.

The AG acknowledged a competing interpretation, that the grandfather might be a temporary clause covering only the term in office on January 1, 1981, requiring law-license qualification for any subsequent term. The AG rejected that reading. The text of the second sentence was "plain": the amendment "shall not apply" to grandfathered persons, full stop. The opinion noted that one purpose of the second sentence was simply to clarify that judges elected in November 1980 and those serving on January 1, 1981 could continue to serve, but the AG read its scope more broadly than that pragmatic clarification.

Currency note

This opinion was issued in 1981. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The pool of grandfathered judges has naturally shrunk over four decades as those who were serving in 1981 have retired or died. By 2026 there are likely very few, if any, grandfathered non-attorney judges still eligible to seek election. The constitutional provision itself remains in effect, and no NC Supreme Court decision has either confirmed or rejected the AG's broad reading.

Background and statutory framework

NC's judicial structure has district court judges sitting in 41 judicial districts, elected to four-year terms. The Constitution sets qualifications for each level of judge. Before the 1980 amendment, the Constitution required only that judges be "duly qualified voters of the State." This left the door open to lay judges, and especially in district court, NC had a long history of community-leader judges who were not attorneys.

The 1980 amendment was driven by a bar-association push to professionalize the bench. Civil-procedural complexity had grown since the 1960s, and the bar argued that all judges, including district court judges who handle most of the criminal misdemeanor docket and significant civil cases, should be licensed lawyers. The amendment passed by referendum in November 1980 and took effect January 1, 1981.

The grandfather clause was a political compromise that protected sitting non-attorney judges from being immediately removed from office. The structural question this opinion addresses is how broadly the grandfather extends: just the current term, or for the rest of the person's lifetime?

The AG's reading is the "lifetime grandfather" interpretation. The textual hook is the second sentence's flat language: "This section shall not apply to persons elected to or serving in such capacities on or before January 1, 1981." That is unconditional. The AG inferred that the framers chose unconditional language for a reason, and read the eligibility as a permanent personal trait of the qualifying class.

Common questions

Could a grandfathered judge run for a different judicial office?

The opinion doesn't directly address that. The grandfather clause speaks of persons "elected to or serving in such capacities" (meaning the offices specified in the first sentence). The AG's broad reading would suggest a non-attorney judge who was on the bench on January 1, 1981 could subsequently run for any of the specified judicial offices without being barred by the attorney requirement. That would be controversial, though, particularly for the Supreme Court or Court of Appeals.

Why is this opinion important?

The opinion mattered immediately because some grandfathered judges were considering not seeking re-election in 1982 but wanted to know they could come back later. It also mattered later as a constitutional-interpretation precedent on how grandfather clauses interact with subsequent service patterns.

Has the NC Supreme Court addressed this question?

Not directly, as of the AG's writing in 1981. As far as the opinion notes, "Article IV, Section 22 has not been construed by our Supreme Court." A later Supreme Court decision could endorse or reject the AG's reading.

Are there still grandfathered judges today?

In 2026, very few. A person who was a judge on January 1, 1981 would now be at least 45 years older than they were then. The grandfather class is naturally aging out.

Source

• Landing page: https://ncdoj.gov/opinions/constitution-courts-judges-qualification-of-justices-and-judges-must-be-attorneys-exception/

Citations

• N.C. Const. art. IV, § 22

Original opinion text

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:

1. 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.

2. 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 person's lifetime. 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