Can Mecklenburg County use its own local funds to pay for additional permanent assistant district attorneys or an additional superior court judge?
Plain-English summary
In early 1996, Mecklenburg County's docket was running ahead of its prosecutors and judges. The Board of Commissioners thought about using county money to add a couple of permanent assistant district attorneys and an additional superior court judge. Vice-Chairman Tom Bush sent a letter to the AG in January; County Attorney Marvin A. Bethune followed up in March. They wanted to know whether state law would let them do that.
Senior Deputy Attorney General Ann Reed and Special Deputy Lars F. Nance answered no. The North Carolina General Court of Justice is a state-funded unified court system under Article IV of the state constitution. That structural choice has consequences. The number of resident superior court judges in each district, and the number of permanent full-time assistant district attorneys, are fixed by statute. The General Assembly sets those numbers in § 7A-41 and § 7A-60, and only the General Assembly can change them. Mecklenburg County could not unilaterally add another superior court judgeship by writing a check, and it could not create additional permanent ADA positions by funding them locally.
The opinion was careful to distinguish permanent capacity from temporary capacity. State law provided three workable channels for the county to add prosecutorial and judicial capacity short of changing the permanent staffing levels.
First, § 7A-64 lets a district attorney request temporary assistance when the docket has accumulated beyond the office's capacity. The DA makes a factual showing of need to the Administrative Office of the Courts, the AOC decides how many temporary appointees to authorize and for how long, and the AOC sets their compensation. Crucially, county money can be used to fund temporary appointees, but the funding has to flow through the AOC. The county cannot hire its own ADA and pay that person directly. The AOC controls the position, the appointment and the compensation.
Second, the trial judge can allow a privately retained attorney to assist the prosecuting DA on a case-by-case basis. State v. Best, 280 N.C. 413 (1972), recognized this practice. The county was not the source of funding under this channel; instead, a victim or other private party could pay an attorney to assist the DA in a particular prosecution, subject to the judge's discretion.
Third, § 7A-46 authorizes special sessions of superior court. The Chief Justice of the North Carolina Supreme Court determines when a district needs a special session, and the Chief Justice can assign a regular, special or emergency judge to that session. Special sessions are typically called when the docket has accumulated beyond what the resident judge can clear, but the statute does not limit the basis for ordering a special session to docket accumulation alone. State v. Register, 133 N.C. 746 (1903), recognized the broader scope of the special-sessions power.
The bottom line: Mecklenburg's options for funding more court capacity were channeled through state institutions (the AOC for ADAs, the Chief Justice for special judicial sessions). The county could not stand up new permanent positions on its own.
Currency note
This opinion was issued in 1996. 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 basic constitutional architecture has not changed: the General Court of Justice is still a state-funded unified system under Article IV. The General Assembly still sets the number of resident superior court judges and permanent ADAs by statute, and the AOC still administers temporary-assistance positions under § 7A-64. But the specific counts of judges and ADAs in each district have changed many times since 1996, and AOC procedures for requesting and approving temporary assistance have evolved. The role of private financial support for prosecutions has also been narrowed by later caselaw and statutory amendments addressing conflicts of interest and the appearance of impropriety. A county weighing similar questions today should work with the AOC and current statutory text rather than relying on the 1996 framework.
Background and statutory framework
The structure of court funding in North Carolina is unusual among states. After the 1962 court reform amendments, the state took responsibility for funding the General Court of Justice as a unified system. Counties were left funding only the physical courthouse and some clerical positions, with the state paying judicial salaries, prosecutor salaries, and most court personnel. This was a deliberate choice to equalize the quality of justice across the state. A wealthy county would not be able to buy better courts than a poor county.
The trade-off is that wealthy, fast-growing counties cannot translate their local revenue into faster justice when their docket grows. Mecklenburg's situation in 1996 was a classic example. The county had grown rapidly, criminal filings had outpaced statewide projections, and the DA's office was understaffed relative to demand. The county wanted to put money into the system; state law would not let them, except through the AOC's temporary-assistance channel.
The constitutional underpinning is Article IV, § 9 of the North Carolina Constitution, which allocates the organization of judicial districts and the number of resident judges to the General Assembly. The General Assembly implements that authority through § 7A-41 (superior court judgeships) and § 7A-60 (district attorneys and assistant district attorneys). The numbers in those statutes are absolute: a county cannot exceed them by writing a check, and the AG opinion made clear that the constitutional and statutory framework forecloses any other interpretation.
The opinion's careful inventory of the three alternative channels (§ 7A-64 temporary ADAs, private case-by-case assistance, § 7A-46 special sessions) is a useful overview of the safety valves the system provides when permanent capacity is inadequate. Those channels still exist today.
Common questions
What was the constitutional problem with letting Mecklenburg fund its own ADA?
The state-funded unified court system under Article IV reserves the structuring of permanent prosecutorial and judicial positions to the General Assembly. If a county could add permanent positions by paying for them, the uniformity that the constitutional structure was designed to produce would erode. The county-funded positions might also raise hierarchical and supervisory issues: who supervises a locally-paid ADA whose statutory home is the elected DA's office?
Could the county donate money to the AOC for temporary assistance?
Yes, and that is the channel the AG opinion described. Under § 7A-64, the DA could request temporary assistance from the AOC based on a factual showing of docket accumulation. The AOC would set the number of temporary appointees, their compensation and their length of service. County money could fund those appointees, but the AOC controlled the position.
Could a private donor pay for a special prosecutor?
Under State v. Best, 280 N.C. 413 (1972), privately retained attorneys could assist the prosecuting DA in a particular case, with the trial judge's permission. This was not unlimited; the trial judge had to find that the assistance was appropriate. Later ethical and statutory developments have narrowed the scope of private participation in prosecutions, especially where the private party has a financial stake in the outcome.
Why was the Chief Justice the gatekeeper for special sessions?
§ 7A-46 placed the special-sessions authority with the Chief Justice of the North Carolina Supreme Court. The Chief Justice has visibility into docket pressures across all districts and can allocate special-session capacity statewide based on need. A district judge or county could not order a special session on their own.
What did the AG mean by "channel the money through state institutions"?
The opinion concluded that the legal channels for additional capacity were the AOC (for temporary ADAs and for AOC-approved funding arrangements) and the Chief Justice (for special sessions). The county could not stand up its own positions and pay them directly; it had to work through state institutions that controlled the underlying authority.
Source
Citations
- N.C. Const. art. IV, § 9 (judicial districts; superior court judgeships)
- N.C.G.S. § 7A-41 (resident superior court judges)
- N.C.G.S. § 7A-46 (special sessions of superior court)
- N.C.G.S. § 7A-60 (district attorneys)
- N.C.G.S. § 7A-63 (permanent full-time assistant district attorneys)
- N.C.G.S. § 7A-64 (temporary assistance)
- State v. Best, 280 N.C. 413, 186 S.E.2d 1 (1972)
- State v. Register, 133 N.C. 746, 46 S.E. 21 (1903)
Original opinion text
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. § 7A-60(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