North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
Submit this request

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.

Honorable Thomas Ross May 27, 1999 Page 2

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.

Honorable Thomas Ross May 27, 1999 Page 3

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. § 7A41.1(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.

Honorable Thomas Ross May 27, 1999 Page 4

Sincerely,

Grayson G. Kelley Senior Deputy Attorney General

Norma S. Harrell Special Deputy Attorney General