Ezel / AG Opinions / NC
NC NC AG Advisory Opinion (2004-11-18) 2004-11-18

If a North Carolina District Court Judge-elect dies before taking office, when does the vacancy arise and who fills it?

Short answer: The vacancy arises when the election is certified, not when the judge-elect dies. The AG concluded the District Bar then has 30 days to submit three names to the Governor under § 7A-142, the Governor has 60 days to appoint, the defeated incumbent holds over until the new appointee qualifies, and the appointee serves the full unexpired four-year term.
Currency note: this opinion is from 2004
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.
Disclaimer: This is an official North Carolina Attorney General advisory opinion. AG opinions are persuasive authority but not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed North Carolina attorney for advice on your specific situation.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

Judge Christopher Bragg asked the AG how to handle an unusual situation. David McSheehan won the November 2, 2004 District Court election in Judicial District 20, defeating the incumbent. Five days later, on November 7, McSheehan died. The State Board of Elections had not yet certified the results. Three questions: when does the vacancy arise, can the defeated incumbent remain in office and for how long, and what is the term of office for the eventual successor.

The AG worked through each question by reading the constitutional and statutory texts.

Vacancy timing. N.C.G.S. § 163-327(b) directly addressed the situation. If a person elected to district court "dies, becomes disqualified, or resigns on or after election day and before he has qualified by taking the oath of office, the office shall be deemed vacant and shall be filled as provided by law." The complication was that the election results had not been certified yet. The AG concluded that McSheehan would be "elected to public office" when the results were certified. Because he died before certification, the vacancy arose at the moment of certification. The District Bar could submit its three nominations to the Governor within 30 days of certification.

Holdover. The defeated incumbent, Judge Williams, was already serving a four-year term that ran through the first Monday in December 2004. He kept that office until December 6, 2004 or until his successor was appointed and qualified, whichever was later. Article IV, § 19 of the NC Constitution provides that "all incumbents of these offices shall hold until their successors are qualified." So Judge Williams would continue past December 6 if no successor had been appointed and sworn in by then.

Term of the new appointee. Two constitutional provisions overlapped. Article IV, § 19 set a general rule (Governor's judicial appointees serve until the next legislative election that is more than 60 days after the vacancy occurs). But Article IV, § 10, the section specifically addressing District Courts, provided that vacancies "shall be filled for the unexpired term in a manner prescribed by law." Section 10 controlled as the more specific provision. The Governor's appointee would serve the full unexpired four-year term, ending the first Monday in December 2008.

Currency note

This opinion was issued in 2004. 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 judicial-vacancy statutes in Chapters 7A and 163 have been amended since 2004, and judicial elections in NC have moved between partisan and nonpartisan formats more than once. Anyone facing a current judicial-vacancy question should pull the current versions of § 7A-142 and § 163-9.

Common questions

Q: At the time of the opinion, when exactly did the vacancy arise?
A: When the State Board of Elections certified the election results. Until certification, no one was "elected." After certification (and with McSheehan dead), the office that he would have taken was deemed vacant.

Q: Why did the District Bar get to nominate, instead of the Governor picking freely?
A: District court was a nonpartisan election. N.C.G.S. § 7A-142 said that when a judge was elected in a nonpartisan election and a vacancy arose, the district bar submitted three names. The Governor had 60 days from the bar's submission to appoint. If the bar failed to submit within 30 days of the vacancy, the Governor could appoint without the nominations.

Q: Could the defeated judge keep his job indefinitely?
A: Only until his successor was "appointed and qualified," meaning sworn in. The constitutional holdover rule kept him in office to prevent a vacancy in the courts, but once the new judge took the oath, the old judge was out.

Q: How long did the new appointee serve?
A: For the entire unexpired four-year term, ending the first Monday in December 2008. The general rule for judicial vacancies (next legislative election) was displaced by the more specific rule for District Court judges in Article IV, § 10.

Background and statutory framework

The opinion sorted out two layers: the constitutional vacancy provisions (Article IV, §§ 10 and 19) and the statutory mechanisms in Chapters 7A and 163.

  • Article IV, § 10. District Court vacancies "shall be filled for the unexpired term in a manner prescribed by law." Specific to District Court.
  • Article IV, § 19. General judicial-vacancy provision. Default term runs until the next legislative election that is more than 60 days after the vacancy. Yields to § 10 for District Court.
  • N.C.G.S. § 163-9(d). District court vacancies are not filled by election. Filled per § 7A-142.
  • N.C.G.S. § 163-327(b). A person elected to court who dies after election day but before qualifying creates a vacancy filled "as provided by law."
  • N.C.G.S. § 7A-142. Procedure for filling vacancies. Three names from the district bar. Governor appoints within 60 days. If the bar misses its 30-day deadline, Governor appoints freely.
  • N.C.G.S. § 7A-140. District Court judges serve four-year terms beginning the first Monday in December after election.
  • N.C.G.S. § 128-7 and § 128-7.1. General officer-holdover and vacancy-on-death-before-qualifying provisions.

The procedural chain in this case: certification triggers vacancy. Bar has 30 days to nominate. Governor has 60 days to appoint. Appointee takes oath and qualifies. Incumbent holds over until appointee qualifies. Appointee serves to first Monday in December 2008.

The opinion was signed by Solicitor General Christopher G. Browning, Jr.

Citations

  • N.C. Const. art. IV, § 10 (District Court vacancies)
  • N.C. Const. art. IV, § 19 (general judicial vacancies)
  • N.C. Const. art. VI, § 10 (officer holdover)
  • N.C.G.S. § 7A-140 (District Court judge term)
  • N.C.G.S. § 7A-142 (vacancy-filling procedure)
  • N.C.G.S. § 128-7 (officer holdover)
  • N.C.G.S. § 128-7.1 (death before qualifying)
  • N.C.G.S. § 163-9(d) (district court vacancy not filled by election)
  • N.C.G.S. § 163-327(b) (vacancy on death after election day before oath)

Source

Original opinion text

November 18, 2004

The Honorable Christopher W. Bragg
Union County Courthouse
P.O. Box 5038
Monroe, NC 28112-5038

Re: Advisory Opinion; District Court Vacancy; N.C.G.S. §§ 7A-142; 163-9(d); 163-327(b)

Dear Judge Bragg:

This letter will respond to your opinion request dated November 15, 2004. The facts relating to your opinion request are as follows. On November 2, 2004, North Carolina held general elections, including elections for District Court Judge in Judicial District 20. The unofficial results of that election indicate that David McSheehan defeated the incumbent District Court Judge in Judicial District 20. On November 7, 2004, Mr. McSheehan died prior to taking office. The State Board of Elections has not yet certified the election results for Judicial District 20. We anticipate that this election will be certified within the next two weeks. Our responses to your specific questions are set out below.

(1) When does the vacancy in office occur so that the District Bar can meet to submit nominations to the Governor?

Article IV, Section 10 of the North Carolina Constitution establishes District Courts within this State and expressly addresses the election of judges to the District Court. This Section states: "Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law." Article IV, Section 19 of the North Carolina Constitution is broader in scope than Section 10; Section 19 addresses vacancies in all judicial offices created by the Constitution, including but not limited to the District Court. This Section reads: "Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor . . . ." In N.C.G.S. §§ 163-9(d), 163-327(b) and 7A-142, the General Assembly has prescribed the manner of filling a district court judge vacancy. N.C.G.S. § 163-9(d) states:

Vacancies in the office of district judge which occur before the expiration of a term shall not be filled by election. Vacancies in the office of district judge shall be filled in accordance with N.C.G.S. 7A-142.

In addition, N.C.G.S. § 163-327(b) expressly provides that a vacancy occurs when a person elected to the district court dies prior to taking office:

Death, Disqualification, or Resignation of Official After Election. If a person elected to the office of justice of the Supreme Court, judge of the Court of Appeals, or superior or district court judge dies, becomes disqualified, or resigns on or after election day and before he has qualified by taking the oath of office, the office shall be deemed vacant and shall be filled as provided by law.

See also N.C.G.S. § 128-7.1 (if any person elected to public office dies before qualifying for office, the office shall be declared vacant). N.C.G.S. § 7A-142, in turn, sets out the specific procedures for appointments to fill a vacancy in the office of district court judge. When, as here, the candidate was elected in a nonpartisan election, the statute provides that the district bar shall submit to the Governor the names of three persons who are residents of the district court district and are duly authorized to practice law in the district. Within sixty (60) days after the district bar submits the nominations to the Governor, the Governor shall appoint to fill the vacancy. If the district bar fails to make nominations within thirty (30) days from the date the vacancy occurs, the Governor may fill the vacancy without waiting further for nominations.

Although the office of district court judge is not currently vacant in that the incumbent's term of office will not expire until the first Monday in December, once the election results are certified, there will exist a vacancy as to the successor to that office. Accordingly, the district bar should submit its nominations to the Governor within 30 days of the certification of the election.

Here, it appears that Mr. McSheehan will be "elected to public office" as that phrase is used in N.C.G.S. §§ 163-327(b) and 128-7.1 when the results of the election for Judicial District 20 are certified. Because Mr. McSheehan died prior to the certification of the election, the vacancy will arise when the election is certified. Accordingly, the District Court Bar may submit nominations to the Governor to fill this vacancy at any time between the date the election is certified and thirty (30) days thereafter.

(2) Can the defeated incumbent District Court Judge remain in office and for how long?

The defeated incumbent District Court Judge may remain in office until December 6, 2004 or until his successor is appointed, whichever occurs later. N.C.G.S. § 7A-140 provides that district court judges shall serve a term of four years, beginning on the first Monday in December following his or her election. Here, the incumbent District Court Judge (Judge Williams) was elected in November 2000 to a four-year term. Judge Williams will hold that office at least until December 6, 2004 (the first Monday in December). He may hold over longer if his successor is not appointed and qualified by December 6, 2004. Article IV, Section 19 of the North Carolina Constitution provides that in the case of judges:

If any person elected or appointed to any of these offices shall fail to qualify, the office shall be appointed to, held, and filled as provided in case of vacancies occurring therein. All incumbents of these offices shall hold until their successors are qualified. (Emphasis added.) See also N.C. Const. Article VI, § 10 ("In the absence of any contrary provisions, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified."); N.C.G.S. § 128-7 ("All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.").

Thus, if Judge Williams' successor is not appointed and qualified prior to December 6, 2004, Judge Williams will continue to hold office until such time as his successor is appointed.

(3) When a successor is appointed to fill this vacancy, what is the term of office that will be held by the new District Court Judge?

Article IV, Section 19 of the North Carolina Constitution sets out the general rule with respect to judicial vacancies:

Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices.

(Emphasis added.) The North Carolina Constitution, however, sets out in a section entitled "District Courts" more specific provisions with respect to the term of office when a vacancy occurs on the district court. Article IV, Section 10 states: "Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law." (Emphasis added.) Consistent with the North Carolina Constitution, N.C.G.S. § 7A-142 provides that vacancies in the office of district judge "shall be filled for the unexpired term by appointment of the Governor." Thus, in the case of a vacancy on the district court, the appointment is for the entire unexpired term. Accordingly, here, the Governor's appointee shall hold that office until the first Monday in December, 2008.

We would be glad to answer any further questions you may have in connection with this matter.

Sincerely,

Christopher G. Browning, Jr.
Solicitor General