North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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[479] December 14, 2000

The Honorable Forest A. Ferrell Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A. Attorneys at Law Post Office Drawer 1470 Hickory, North Carolina 28603

Re: Advisory Letter; Length of Term of Office for Superior Court District 26C; N.C. Gen. Stat. § 163-9(b)

Dear Judge Ferrell:

You have requested an opinion on behalf of the Honorable W. Robert Bell with respect to the length of the term to which he was elected in 1998. He was elected to the position that became vacant upon the retirement of the Honorable Chase Saunders, one of the two judgeships assigned to Superior Court District 26(C) in N.C. Gen. Stat. § 7A-41(b)(23). His commission from the Governor stated his term was for eight years. He has received opinions on the length of the term from Jim Drennan with the Institute of Government, Tom Andrews with the Administrative Office of the Courts, and Gary Bartlett with the State Board of Elections. They have all reached the conclusion that the term is for eight years.

It is also our conclusion that the term to which Judge Bell was elected in 1998 was for eight years. Vacancies in superior court offices are controlled by N.C. Gen. Stat. § 163-9(b). It provides:

Except for judges specified in the next paragraph of this subsection, an appointee to the office of judge of superior court shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office.

Appointees for judges of the superior court from any district:

(1)
With only one resident judge; or
(2)
In which no county is subject to section 5 of the Voting

Rights Act of 1965, shall hold the office until the next election of members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill an eight-year term.

Superior Court District 26(C) has two judges; however, the district is entirely located in Mecklenburg County. Mecklenburg County is not subject to section 5 of the Voting Rights Act of 1965, as amended. See 28 C.F.R. Ch. 1, (Appendix to Part 51). Thus, Judge Bell’s election in 1998 was not for the remainder of his predecessor’s term, but was for an eight-year term as specifically provided by the second paragraph of N.C.

Gen. Stat. § 163-9(b). Please let us know if you have any further questions about this matter.

Signed by:

Ann Reed Senior Deputy Attorney General

Susan K. Nichols Special Deputy Attorney General

cc: Gary O. Bartlett Executive Secretary-Director State Board of Elections