What does NC Constitution Article IV, Section 22 require of someone seeking to serve as a NC judge?
Plain-English summary
Representative Gulley asked the AG to interpret Article IV, Section 22 of the NC Constitution, which addresses qualifications to serve as a judge. The provision 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.
The AG read the language plainly. The first sentence makes bar membership the only qualification. No person is eligible for election or appointment to the listed courts unless duly authorized to practice law in NC. That is the one mandated qualification.
The second sentence is a complete grandfather clause. Any person elected to or serving as a justice or judge on or before January 1, 1981, is exempt. The AG had previously opined that the grandfather exemption is for life and forever exempts that person from § 22. The opinion reaffirms that prior reading.
Together the two sentences set up a simple rule. Bar membership required after the 1981 date. Bar membership not required for those serving on or before the date, for the rest of their lifetimes.
Currency note
This opinion was issued circa 2005. 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.
Article IV, § 22 has not been amended since 1980 and is unlikely to be at issue often given the passage of time since 1981, but the AG opinion remains the authoritative gloss on the grandfather clause's scope.
Common questions
Q: At the time of the opinion, was there any qualification other than bar membership?
A: No. § 22 imposes only one qualification: bar membership in NC. Other qualifications (residency, age) come from statutes or other constitutional provisions, not § 22.
Q: Who is grandfathered?
A: Any person elected to a Justice or Judge position, or serving in one, on or before January 1, 1981. The exemption is permanent and lifetime.
Q: Could a grandfathered judge be elected to a different court without bar membership?
A: The AG read the exemption as personal to anyone elected to or serving in any of the listed positions on or before January 1, 1981. The opinion's framing suggests the exemption travels with the person, although the opinion does not address a hypothetical mid-career court change.
Q: Are District Court magistrates covered?
A: § 22 lists Justices of the Supreme Court, Judges of the Court of Appeals, Superior Court, and District Court. Magistrates are not in the list, and the AG opinion does not address them.
Background and statutory framework
Article IV, § 22 of the NC Constitution is a one-paragraph provision with two sentences. The first sentence sets the qualification (bar membership). The second sentence carves out an exemption for incumbents on the effective date.
The "duly authorized to practice law in the courts of this State" phrase tracks the licensing structure of the NC State Bar. A person admitted to the Bar of North Carolina is authorized to practice. A person not admitted, or whose license has been suspended or revoked, is not authorized.
The grandfather date, January 1, 1981, corresponds to the constitutional amendment that imposed the bar-membership qualification. Before that amendment, lay judges could serve. The exemption preserves the rights of judges who were elected or serving when the new rule took effect.
The opinion was signed by Senior Deputy Attorney General Ann Reed and Special Deputy Attorney General Grady L. Balentine, Jr.
Citations
- N.C. Const. art. IV, § 22 (qualification of justices and judges)
Source
Original opinion text
Re: Advisory Opinion, North Carolina Constitution Art. IV, Sec. 22
Dear Representative Gulley:
You have requested the opinion of this Office concerning Article IV, Section 22 of the North Carolina Constitution concerning the qualifications to serve as a judge in North Carolina. The foregoing provision 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.
The language of the first sentence of Sec. 22 is unambiguous. No person is eligible for election or appointment as a justice or judge unless that person is duly authorized to practice law in the courts of this State. That is the only qualification mandated by Sec. 22. The second sentence exempts from this requirement those persons elected to or serving in such capacities on or before January 1, 1981.
This Office has previously opined that the second sentence of Sec. 22 is a complete "grandfather" clause, exempting any person elected to or serving as a judge or justice on or before January 1, 1981 (see attached). The exemption applies during any such person's life time and forever exempts them from Sec. 22. If a person was not elected to or serving as a judge or justice on or before January 1, 1981, that person must be duly authorized to practice law in the courts of this State to 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.
We hope that this opinion is responsive to your request. Should you have further questions regarding this issue, please do not hesitate to contact us.
Sincerely,
Ann Reed
Senior Deputy Attorney General
Grady L. Balentine, Jr.
Special Deputy Attorney General