What Is a Judge’s Commission?

Every now and then someone asks about the significance of a trial judge’s commission. Just what is a judge’s commission, when is it needed, where does it come from, and what difference does it make?

If a question about a commission is ever to arise, it most likely will be in superior court and is largely a byproduct of the system of rotating superior court judges who, remember, have jurisdiction to hold court anywhere in the state. So we first need to review the system of rotation.

Article IV, § 11 of the North Carolina Constitution honors the tradition of judges riding circuit and requires that it be maintained through rotation: “The principle of rotating Superior Court Judges among the various districts of a division is a salutary one and shall be observed.” The same section gives the chief justice the duty of assigning judges: “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 and may transfer District Court Judges from one district to another for temporary or specialized duty.”

By statute (G.S. 7A-345), the assistant director of the Administrative Office of the Courts ― currently David Hoke ― assists the chief justice in assigning judges. Another section (G.S. 7A-47.3) declares that judges are to be assigned to effectuate the constitutional provision on rotation.

Rotation, as the constitution says, is based on judicial divisions. The state currently is divided into eight divisions ― many of us recall when it was still just four ― and each superior court judge travels among the districts within the judge’s division. The principal method of assigning superior court judges is the Master Calendar, the Fall 2012 version of which may be found here.

The Master Calendar shows where each superior court judge is assigned for a six-month period. If the judge is assigned to a district comprised of a single county, like the 10^th (Wake County), the judge will spend the entire six months in that one county. If the six-month assignment is to a multi-county district the judge will hold sessions of court in different counties of the district according to the schedule in the Master Calendar. A judge assigned to the 9^th District, for example, might be in Granville County one week, Vance the next, Warren the week after.

Now, back to judges’ commissions.

For regularly scheduled sessions of superior court the Master Calendar itself serves as the assignment, meaning no individual commissions are issued. Things do not always work out as planned, however, and the Master Calendar never meets all the needs for assignment of judges. Judges get sick, they have to recuse themselves from cases, some trials run for weeks on end, or there simply is too much work and new sessions of court need to be scheduled. Consequently, Mr. Hoke spends a fair amount of time swapping judges from their original assignments, cancelling sessions or scheduling new ones, and sometimes has to bring retired judges back for temporary service. In each instance this means issuing a commission confirming the new assignment.

When an assignment changes from the Master Calendar, or a new session is scheduled, Mr. Hoke prepares and sends a commission to the judge, the clerk’s office, and to various designated officials such as the judge’s judicial assistant and, for criminal sessions, the district attorney.

Questions about a superior court judge’s commission are rare and are likely to arise only when the judge is holding court outside the Master Calendar schedule. The validity of the judge’s commission was disputed, for example, in the defendant’s appeal of his murder conviction in State v. Eley, 326 N.C. 759 (1990). Special assignments are common in murder cases because of the length of the trials, making it difficult to fit them in regular court schedules, and because of the need for a seasoned judge to preside. In this instance Judge Beaty of Winston-Salem was assigned to a special session of court in Hertford County starting in June 1988. After conviction it was discovered that there was no commission on file for Judge Beaty to be in Hertford.

The Eley opinion quotes extensively from the affidavit of Dallas Cameron, who then occupied the position now held by David Hoke, describing the assignment and commission process. The court concluded that Cameron had issued a commission but it simply had never been received. Thus, despite the missing commission, Judge Beaty still was authorized to hold court. The opinion included this:

“Judge Beaty’s jurisdiction, power, and authority as a superior court judge flowed from the Constitution of North Carolina and his appointment and commission by the Governor as a superior court judge.  N.C. Const. art. IV, § 9.  His assignment by the Chief Justice of this Court pursuant to article IV, § 11 of the Constitution of North Carolina, to preside at the 6 June 1988 special session of Superior Court of Hertford County was merely the mode by which he was directed to preside at that session of court.  The issuance of a commission by the Chief Justice . . . does not endow the judge with jurisdiction, power, or authority to act as a superior court judge.  The commission so issued merely manifests that such judge has been duly assigned  pursuant to our Constitution to preside over such session of court.”  Eley, at 764.

The court also held that the chief justice could, as he did, issue a commission to Judge Beaty nunc pro tunc in October 1989 assigning him to the June 1988 session.

One should not read the court’s language above as saying that a commission does not matter. Keep in mind that the holding in the case was that the chief justice had assigned Judge Beaty to the session and that a commission actually had issued, it just could not be found. If Judge Beaty had never been assigned to the Hertford session his acts would have been void, regardless of his statewide jurisdiction.

That was the result in Vance Construction Company, Inc., v. Duane White Land Corporation, 127 N.C. App. 493 (1997). While assigned to a session of Warren County Superior Court, Judge Brown of Edgecombe County decided a case about construction of a boat storage facility. When questions later arose about a credit against the judgment the parties returned to Judge Brown, now back in Edgecombe County. Unfortunately, the judge was no longer assigned to Warren County, did not have a commission to hold court in Warren County, and did not have in-chambers jurisdiction as a resident judge of Warren County, so his order was void.

Commission issues can arise in district court as well. District court judges generally have jurisdiction only within their district, and their assignments to sessions of court are made by the chief district judge. As the constitutional provision quoted above says, though, the chief justice may transfer a district judge from one district to another for temporary duty. In those situations a commission must be issued, just as for a superior court judge, and questions may arise about the judge’s authority.

In Lockert v. Lockert, 116 N.C. App. 73 (1994), for example, Judge Neely of Asheboro was assigned to hear an equitable distribution case in Rowan County because of the local judges had disqualified themselves. An initial hearing was held in September 1990, then the trial itself began in November and concluded in December. The losing side challenged the judgment, claiming that Judge Neely’s commission was defective. The argument was that the commission only assigned the judge for a one-day session on September 11^th and thus everything occurring after that was void. Well, the actual wording of the commission was that Judge Neely was assigned for the period of “one day or until the business is disposed of.” The Court of Appeals can read English as well as you and I can and held that the judge clearly had jurisdiction beyond the one day as necessary to complete the case. The “until the business is disposed of” phrase is common in judges’ commissions.

The lesson in all this is that commissions can be important, especially when superior court judges are assigned outside the Master Calendar, but the key is whether the chief justice has properly assigned the judge to the session of court and the commission itself is only evidence of that assignment.

If you have read all the way to this point, you also may be interested in the issues covered in the riveting 2008 Administration of Justice Bulletin entitled “Out-of-Term, Out-of-Session, Out-of-County.” It can be found on the School of Government’s Judicial Authority and Administration webpage.