One of the livelier issues in last week’s General Assembly was the Senate’s move to abolish 12 of the 15 special superior court judgeships. Senate Bill 10, which would affect important executive branch boards as well, passed the Senate easily and was sent to the House, but questions remain about the authority to cut judges’ terms short.
May the General Assembly abolish a judgeship during the middle of a term? The answer is a clear “probably not, but maybe.”
Let’s start by recalling what special superior court judgeships are. Article IV, Section 9 of the North Carolina Constitution empowers the General Assembly to divide the state into “a convenient number” of superior court districts and specify the number of judge to be elected in each. These are regular superior court judges who, pursuant to Section 16, are elected by the voters and serve eight-year terms.
Section 9(1) also says the legislature “may provide by general law for the selection or appointment of special or emergency Superior Court Judges not selected for a particular judicial district.” The constitution is silent on the terms of special judges and how they are to be chosen. Special judges do not follow the rotation of regular superior court judges between districts for holding court. Specials are assigned on a week-by-week basis to any county in the state as needed to fill in for a sick judge or one who is finishing a case elsewhere; to handle a case when local judges have a conflict; to help reduce a backlog; to preside over a troublesome case; or otherwise to fill in when a regular judge is not available or extra assistance is needed.
There currently are
112 97 regular superior court judges and 15 specials, for a total of 112 judges.
The number of special superior court judges has varied over time, as have the terms of their offices — all of which have been set by statute. The legislature always has chosen to have them appointed by the governor. Four-year terms used to be common, but all the judgeships established under current GS 7A-45.1 are for five-year terms that begin when the judge takes the oath of office. The 15 specials are serving terms that expire at different times over the next several years. Four terms expire this year between January 9th and March 14th and the two latest ones do not end until December 31, 2017.
Senate Bill 10 would immediately abolish 12 of the 15 special superior court judgeships, leaving only the three who are assigned to the business court.
The State Constitution itself says nothing about the abolition of judgeships. Nor is there much modern case law, in North Carolina or elsewhere, on the issue. Most of the cases stem from 19th century power struggles among the three branches or later court reorganizations more related to court workloads and economy.
The standard statement of the law, here as in other states, is that the legislature may abolish a legislatively-created office at any time but may not alter a constitutional office. In Mial v. Ellington, 134 NC 131 (1903), while approving the elimination of a legislatively-created office of county road superintendent, the North Carolina Supreme Court said:
“It will save any possible confusion or misunderstanding to say that nothing said by us in regard to the power of the Legislature applies to offices provided for by the Constitution. These are beyond the power of the Legislature to affect, either in respect to the term, or, except within the limitations fixed, the salary.”
In two cases in the early 1940s, Efird v. Board of Com’rs for Forsyth County, 219 NC 96 (1941), and Brown v. Board of Com’rs of Richmond County, 223 NC 744 (1943), the Supreme Court upheld the termination of local judgeships during the judge’s term. Those decisions, however, came before the state constitution was amended in the 1960s to provide for a uniform statewide court system. The judgeships had been created by the legislature pursuant to its pre-1960s constitutional authority to establish “such other courts inferior to the Supreme Court” as it wished. The offices were legislatively created. Consequently, as the court said in Efird: “That the General Assembly had authority to abolish the Court cannot be gainsaid. ‘If the Legislature had the right to create the court, it had the right to abolish.’” (quoting Queen v. Com’rs of Haywood, 193 NC 821 (1927). Our appellate courts have not had to confront a legislative decision to abolish a constitutionally-recognized judgeship in mid-term.
Is a special superior court judgeship a constitutional office such as to insulate the incumbents from having their terms cut short? The office is constitutional in the sense that it is recognized and authorized by Article IV, Section 9(1). If the law is understood to mean that any tinkering with an office listed in the constitution threatens separation of powers, special superior court judgeships qualify.
On the other hand, the constitution does not specify the number of special judgeships, nor their terms of office, nor their method of selection. Those matters clearly are left to the discretion of the General Assembly. Special judges, consequently, do not share all the characteristics of other clearly constitutional offices. Obviously the General Assembly could not eliminate the office of chief justice or one of the associate justices of the Supreme Court, because the constitution specifies that there will be a chief justice and at least six associates and specifies their terms of eight years. What, though, when the constitution leaves it up to the legislature to decide the number of superior court judges — and, for specials, their term of office?
The few decisions from other states are divided. In the late 1800s, for example, the Tennessee Supreme Court in State ex rel. Halsey v. Gaines, 70 Tenn. 316 (1879), said the legislature could terminate a circuit court (comparable to our superior court) in the middle of the incumbent’s term as part of a court reorganization. The Tennessee Supreme Court emphasized that the state constitution gave the legislature discretion as to the number of circuit courts; the constitutional provision on eight-year terms did not override that authority. Otherwise, the court said, the legislature would be stuck with maintaining a judgeship and paying a salary for some years after it had determined that the position was unnecessary. The court went on to say that the legislature could not force a disfavored judge out under the guise of court reorganization — apparently a violation of separation of powers — but there was no suggestion that the realignment of circuits was a pretext.
In contrast to that Tennessee decision, the Indiana Supreme Court in the much more recent decision of State v. Monfort, 723 NE2d 407 (Ind. 2000), said a court reorganization had to await the completion of an existing superior court term, even though the term had been established by statute rather than the constitution. The Indiana Supreme Court recognized the legislature’s authority to abolish the judgeship, but held that it could not do so before the sitting judge’s term expired. To allow the legislature to cut judges’ terms short would violate separation of powers, would “put the official life of every judge . . . at the mercy of the legislature,” and would “utterly destroy all judicial independence.”
The only recent statement of the North Carolina Supreme Court about judicial terms came in State ex rel. Martin v. Preston, 325 NC 438 (1989), and suggests that the justices would not approve abolishing a superior court judgeship in the middle of a term. Preston was a challenge to the legislature’s realignment of superior court judges’ terms to settle a voting rights case. The General Assembly had extended the terms of some judges in multi-judge districts to put all judges in the district on the same election schedule, giving African American voters more opportunity to elect candidates through single-shot voting. In upholding the one-time extension of terms to satisfy the federal Voting Rights Act the Supreme Court noted that it was the only way to realign terms because “staggered terms could not be eliminated by shortening some existing terms of office.” There was no other discussion of the issue, and the one case cited in the opinion was not really on point, but the quote indicates a view that the term of a superior court judgeship may not be reduced by the legislature.
The 1987 legislative act that realigned superior court terms to resolve voting rights issues, SL 1987-509, also abolished the special superior court judgeships existing at that time. It did so, though, without having to face the issue of cutting terms short. The eight special judges were all serving four-year terms that were due to expire June 30, 1987, anyway. The General Assembly, acting just before the terms expired, simply set the special judges’ new terms to begin July 1, 1987, and expire at the end of 1988.
In sum, we do not know for certain whether the General Assembly constitutionally can abolish the 12 special superior court judgeships. The only clues from North Carolina Supreme Court cases would suggest that the legislature cannot cut short the incumbents’ terms, but the court never has faced this issue directly. Considering the case law from other states, the elimination of the special judgeships would have a better chance of approval if it were part of a larger, clearly defined court reorganization. That context would enhance the argument that the legislature was doing no more than exercising its constitutional authority to align the structure of the trial court with needs and resources. If the legislature, however, abolished these judgeships just to give the governor a chance to name his own judges it would make the separation of powers objection stronger.
 Questions can arise about the actual terms of special judges for two reasons. First, the acts establishing the judgeships are unusual, saying that the term of the initial term begins when the judge takes the oath of office, rather than on a day certain. Second, in practice governors often have not appointed replacements at the end of the initial judge’s term, sometimes waiting for months after the five-year term has expired.