If a NC Superior Court Judge is specially assigned to run the Administrative Office of the Courts, does that special assignment break his 'continuous service' for purposes of later becoming Senior Resident Superior Court Judge? Does he still receive his judicial salary?

Plain-English summary

Judge Thomas Ross, a Guilford County Superior Court Judge, was being considered for special assignment by the Chief Justice to perform the duties of Director of the Administrative Office of the Courts. He asked the AG two questions about how that assignment would affect his judicial career.

Continuous service question. Under G.S. 7A-41.1(b), when a Superior Court District (or set of districts) has more than one Regular Resident Judge, the Senior Resident Judge is the one with "most continuous service." Guilford County's set of districts (18A-D, functioning together as District 18) had multiple resident judges. Ross wanted to know whether two or three years assigned to AOC would interrupt his service clock and reset his seniority ranking.

Senior Deputy AG Grayson Kelley and Special Deputy AG Norma Harrell concluded no. The Chief Justice has constitutional authority under N.C. Const. art. IV § 11 to assign Superior Court Judges, and that authority is not limited to assigning them to hold court in specific locations. The General Rules of Practice (Rules 2, 2.1, 2.2) regulate certain types of assignment but leave the Chief Justice broad discretion. Special assignment to AOC is within that discretion.

The substantive question turned on what "service" means in G.S. 7A-41.1(b)(2). The AG cited Martin v. State, 330 N.C. 412 (1991), where the NC Supreme Court interpreted the same word in Article IV, Section 8 (judicial retirement-age provisions). The Martin Court used Webster's: "service" means "the performance of work commanded or paid for by another." Applying that meaning, a Superior Court Judge performing AOC Director duties at the Chief Justice's command is performing service. The judge is "commanded by the Chief Justice to perform that work." That counts as service as a Superior Court Judge.

The opinion adds a textual policy argument. G.S. 7A-41.1(b) "is not apparently designed as a trap to prevent Superior Court Judges from becoming eligible to serve as Senior Resident Superior Court Judges by spending time on special assignments while other Judges are holding court." The statute looks for the judge with the longest unbroken period in office, performing the duties assigned, whatever those duties are.

Salary question. Under G.S. 7A-44, Superior Court Judges receive a salary as set in the Current Operations Appropriations Act, plus travel expenses under G.S. 138-6(a)(1) and (2), plus $7,000 in lieu of necessary subsistence expenses while attending court or transacting official business outside the county of residence. Because the judge would remain in service as a Superior Court Judge during the AOC assignment, he would continue to receive these salary and benefits.

The bottom line: a Superior Court Judge specially assigned to AOC maintains continuous service for purposes of later becoming Senior Resident, and continues to draw his Superior Court Judge salary and expenses during the assignment.

Currency note

This opinion was issued in 1999. 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 Superior Court districting and Senior Resident rules in Chapter 7A have been amended several times since 1999. The Chief Justice's assignment authority remains in N.C. Const. art. IV, § 11. Anyone analyzing a present-day judicial special assignment should pull current 7A-41.1 and the current General Rules of Practice. The doctrinal core of this opinion (broad Chief Justice assignment authority; "service" defined functionally rather than location-based) remains good law.

Common questions

Q: What is a "Senior Resident Superior Court Judge"?
A: Under G.S. 7A-41.1, the Regular Resident Judge in each Superior Court District with the most continuous service as a Regular Resident Judge. The Senior Resident handles administrative matters for the district (assigning judges to particular cases, managing the court calendar, etc.).

Q: What is the AOC?
A: The Administrative Office of the Courts, the administrative arm of the NC judicial branch. Its Director runs court operations statewide. Historically the Director has often been a sitting or former judge assigned by the Chief Justice to serve in that role.

Q: Why does this question matter practically?
A: Because judges considering AOC assignments worry about long-term career consequences. If three years at AOC reset their seniority clock, they could lose a chance at becoming Senior Resident Judge later. The opinion clears the way: assignment doesn't interrupt the clock.

Q: What was the Martin v. State link?
A: Martin interpreted "service" in Article IV, Section 8 (judicial retirement age limits) using Webster's "performance of work commanded or paid for by another." The AG transplanted that definition to G.S. 7A-41.1(b)(2) "continuous service," which is not otherwise defined in Chapter 7A.

Q: Could the Chief Justice assign a judge to anything?
A: The opinion says the assignment power is broad and "not narrowly restricted by the rules of the Supreme Court." Specific assignments to exceptional cases (Rule 2.1) or complex business cases (Rule 2.2) are spelled out, but the residual power covers other duties including AOC service. The constitutional grant in Article IV, Section 11 is the source.

Q: What's the salary structure for a Superior Court Judge?
A: G.S. 7A-44 provides a base salary set in the Current Operations Appropriations Act, plus travel expenses under G.S. 138-6, plus a $7,000 in-lieu-of-subsistence allowance for out-of-county judicial business. The assigned-to-AOC judge keeps all of these because his judicial status persists.

Background and statutory framework

NC's superior court bench is organized into districts and "sets of districts." A set of districts is a group of two or more districts that, although smaller than full counties, function together for purposes of holding court and administering judicial business. Guilford County's districts 18A through 18D form Set 18.

Within a set of districts with multiple Regular Resident Judges, the Senior Resident is determined by "most continuous service." That seniority criterion is unusual; many courts use age or election date. NC's criterion makes long-running tenure the deciding factor, which makes mid-career special assignments potentially career-affecting.

The Chief Justice's constitutional authority to assign judges is plenary. Article IV, Section 11 says simply that "The Chief Justice of the Supreme Court, acting in accordance with rules of the Supreme Court, shall make assignments of Judges of the Superior Court." The phrase "in accordance with rules of the Supreme Court" lets the Court constrain that authority through its rules, but the rules in 1999 (and today) leave a wide latitude.

Special assignments to AOC are not unusual. Several Directors of AOC have been sitting or recent Superior Court Judges, including Judge Ross himself (he later served as AOC Director from 1999-2000 and again 2004-2011). The AG's opinion gave him the legal cover to take the assignment without career risk.

The salary question is also significant. The Director of AOC has a statutory salary, but a sitting Superior Court Judge assigned to AOC duty does not "become" the AOC Director in a statutory sense; he performs the duties under the Chief Justice's assignment. His pay comes from his judgeship line, not from AOC. The opinion confirms this structural arrangement.

Citations

• N.C. Const. art. IV, § 9(1) (Superior Court districting; election; residence)
• N.C. Const. art. IV, § 11 (Chief Justice power of assignment)
• N.C. Gen. Stat. § 7A-41.1(a) (set of districts)
• N.C. Gen. Stat. § 7A-41.1(b) (Senior Resident Judge; most continuous service)
• N.C. Gen. Stat. § 7A-44 (Superior Court Judge salary and expenses)
• N.C. Gen. Stat. § 138-6(a)(1), (2) (state employee travel expense provisions)
• General Rules of Practice for the Superior and District Courts, Rules 2, 2.1, 2.2
• Martin v. State, 330 N.C. 412, 416, 410 S.E.2d 474, 477 (1991) ("service" defined as "performance of work commanded or paid for by another")

Source

• Landing page: https://ncdoj.gov/opinions/status-of-superior-court-judge-for-purposes-of-service-credit-and-payment-of-salary-and-expenses/

Original opinion text

REPLY TO: Norma S. Harrell Special Deputy

(919) 716-6900 FAX: (919) 716-6763

May 27, 1999

Honorable Thomas Ross
Superior Court Judge
Guilford County Courthouse
Post Office Box 3008
Greensboro, North Carolina 27402

Re: Advisory opinion: Effect On Status Of Superior Court Judge, For Purposes Of Service Credit And Payment Of Salary And Expenses, Of Special Assignment To Administrative Office Of Courts; Article IV, Sections 9(1), 11 of the North Carolina Constitution; N.C.G.S. §§ 7A-41.1(b), 7A-44

Dear Judge Ross:

You request our opinion concerning the effect that being specially assigned to the Administrative Office of the Courts, to perform the duties of the Director of the Administrative Office of the Courts, would have on your status for purposes of future eligibility to become the Senior Resident Superior Court Judge for the set of districts in Guilford County, Superior Court District 18.

Under North Carolina law, there is one Senior Resident Superior Court Judge for each Superior Court District or set of districts. N.C.G.S. § 7A-41.1(b). A "set of districts" is a group of districts from one or more counties composed of districts which are smaller than full counties.

N.C.G.S. § 7A-41.1(a). Superior Court Districts 18A, 18B, 18C, and 18D, each of which is comprised of a part of Guilford County, are a set of districts which, combined, function as Superior Court District 18 for purposes of holding court and court administration. Thus, one Regular Resident Superior Court Judge from Guilford County is the Senior Resident Superior Court Judge for that set of districts.

Because Superior Court Districts 18A-18D, as a set of districts, have more than one Regular Resident Superior Court Judge, the Senior Resident Superior Court Judge is the Regular Resident Superior Court Judge with the "most continuous service" as a Regular Resident Superior Court Judge. N.C.G.S. § 7A-41.1(b)(2). No definition of either the term "continuous service" nor the word "service," as used in 7A-41.1(b)(2), is contained in § 7A-41.1(b)(2) or elsewhere in Chapter 7A. Your question depends on whether being specially assigned to perform the duties of Director of the Administrative Office of the Courts would interrupt your "continuous service" as a Superior Court Judge for purposes of becoming Senior Resident Superior Court Judge.

The office of Judge of Superior Court is a constitutional office. Article IV, Section 9(1) of the Constitution of North Carolina provides, in part, that

[t]he General Assembly shall, from time to time, divide the State into a convenient number of Superior Court judicial districts and shall provide for the election of one or more Superior Court Judges for each district. Each regular Superior Court Judge shall reside in the district for which he is elected.

The Constitution further provides that "[t]he Chief Justice of the Supreme Court, acting in accordance with rules of the Supreme Court, shall make assignments of Judges of the Superior Court." N.C. Const. Art. IV § 11. Nothing in the Constitution limits the Chief Justice's power of assignment of Superior Court Judges to directing them to hold court in specific locations. Nor is this assignment power narrowly restricted by the rules of the Supreme Court, which contain only limited provisions relating to assignment of Superior Court Judges. For example, Rules 2.1 and 2.2 of the General Rules of Practice for the Superior and District Courts provide for assignments of particular judges to exceptional cases and complex business cases. In addition, Rule 2 provides for Senior Resident Superior Court Judges to be assigned to their home districts for administrative purposes at least two weeks each year. Therefore, the Rules of Practice do not circumscribe the Chief Justice's assignments of Superior Court Judges in any manner inconsistent with an assignment to service as Director of the Administrative Office of the Courts. Similarly, the General Statutes do not contain any provisions affecting this authority of the Chief Justice.

While "service" has never been specifically interpreted for purposes of N.C.G.S. § 7A-41.1(b), the word has been construed in connection with constitutional language applicable to appellate judges and justices as well as to Superior and District Court Judges. In Martin v. State, 330 N.C. 412, 410 S.E.2d 474 (1991), the Supreme Court of North Carolina was faced with the question of whether an appellate judge or justice could be required to retire in mid-term because he reached the statutory age for mandatory retirement. In so doing, the Court was required to interpret the language of Article IV, Section 8, authorizing the legislature to "prescribe maximum age limits for service as a Justice or Judge." (Emphasis added.) In discussing the word "service," the Supreme Court observed that

"service," in its ordinary meaning, refers to "the performance of work commanded or paid for by another." Webster's Third New International Dictionary 2075 (1971). The word, "service," thus relates to acts personal to a given individual. Thus the words, "for service," as used in the amendment to Article IV, Section 8 refer exclusively to the time during which an individual justice or judge is eligible to serve notwithstanding the length of his or her term of office.

Martin, 330 N.C. at 416, 410 S.E.2d at 477 (emphasis in original). Following this reasoning, if "service" as a Superior Court Judge is "the performance of work commanded or paid for by another," then the performance of the duties of the Director of the Administrative Office of the Courts by a Superior Court Judge, who has been assigned or "commanded" by the Chief Justice to perform that work, constitutes service as a Superior Court Judge. More basically, the language in N.C.G.S. § 7A-41.1(b) is not apparently designed as a trap to prevent Superior Court Judges from becoming eligible to serve as Senior Resident Superior Court Judges by spending time on special assignments while other Judges are holding court. Instead, insofar as this opinion is concerned, N.C.G.S. § 7A-41.1(b) merely says that the Judge in office for the longest unbroken period is the Senior Resident Superior Court Judge, not the oldest (unless there is a tie in service), see N.C.G.S. § 7A-41.1(b), or the one with more non-consecutive terms or more electoral victories or some other criterion. Therefore, a Superior Court Judge is unquestionably "in service" whenever he is holding office and performing the duties assigned to him, whether those duties consist of holding court or performing certain administrative duties for the benefit of the judicial system. Accordingly, it is our opinion that being specially assigned to the Administrative Office of the Courts, in order to perform the duties of the Director of the Administrative Office of the Courts, would not change your status for purposes of future eligibility to become the Senior Resident Superior Court Judge for the set of districts in Guilford County, Superior Court District 18. Instead, you would be deemed to be in "service" during that period and would continue to accrue continuous service for purposes of becoming Senior Resident Superior Court Judge.

You also asked whether a Resident Superior Court Judge on assignment by the Chief Justice to perform the duties of Director of the Administrative Office of the Courts would be entitled to continue to draw the salaries and expenses set out in N.C.G.S. § 7A-44. That statute provides for payment to Superior Court Judges of salaries as "set forth in the Current Operations Appropriations Act," plus the same travel expenses payable to State employees under N.C.G.S. § 138-6(a)(1) and (2), plus $7,000.00 "in lieu of necessary subsistence expenses while attending court or transacting official business at a place other than in the county of his residence." Since we have already advised that you would be in service as a Superior Court Judge, you would naturally be entitled to the salary and benefits that accompany that service.

In sum, should you be specially assigned to perform the duties of the Director of the Administrative Office of the Courts, you would maintain your "continuous service" for purposes of ultimately becoming a Senior Resident Superior Court Judge, and you would be entitled to receive the salary and expenses due you as a Superior Court Judge during the period of your special assignment to the Administrative Office of the Courts.

Sincerely,

Grayson G. Kelley
Senior Deputy Attorney General

Norma S. Harrell
Special Deputy Attorney General