UPDATE November 2013: The Court of Appeals opinion discussed in this post was reversed by the Supreme Court. See this Coates Canon post: Holding Over After Your Term Ends (revisited).
North Carolina law permits officeholders to continue in office, in the right circumstances, even after their terms end. But for how long do they hold over? The answer to that question means a great deal of money for a former truck driver named Robert Baxter.
And, it appears, the answer may turn on whether the office is elective or appointive.
Elective office. My term in office has ended. I ran for re-election and got beat. My time is up. But for some reason, the fellow who defeated me is not ready to take office. Let’s say that he is tangled up in an election protest that has not been resolved, so he has not yet been issued a certificate of election. Without that certificate, he cannot take office. What happens? Under North Carolina law, I hold over in my office. I lost, but I stay in the office. I continue to exercise all the powers and enjoy all the privileges of the office. But for how long?
Appointive office. My term in office on a state commission has ended. The Governor has not yet named someone to follow me in office. What happens? Just as with an elective office, I hold over. I continue to exercise the powers and enjoy the privileges of the office. But for how long?
Here is what the North Carolina statute on the question says: “All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” That’s G.S. 128-7. As it reads, in either the elective office situation or the appointive office situation, I hold over until my successor is elected or appointed and “duly qualified.” That last term, it is universally agreed, means “take the oath.”
So by this statute, whether I am holding over in an elective office or in an appointive office, my holding over continues until my successor takes the oath of office to succeed me.
But hold on. That’s just the statutory provision. There is also a provision of the North Carolina Constitution, which is, of course, higher law. That provision says this: “In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.” Art. VI, Sec. 10.
That provision seems to say that holdovers in appointive positions stay in office until “other appointments are made,” while holdovers in elective offices stay until “successors are chosen and qualified.” That is, the holding over in an elective office ends when the successor takes the oath, while in an appointive office it ends when the appointment is made, before the successor has had time to take the oath.
That is where the North Carolina Court of Appeals came out in a decision rendered in 2008. Baxter v. Danny Nicholson, Inc. 191 N.C. App. 168. In effect—and without exactly saying so—it ruled that the statute, treating elective and appointive offices the same, is inconsistent with the provision in the Constitution.
So what? What difference does it make?
Well, in the Court of Appeals case, it made a great deal of difference to the truck driver and his employer. Robert Baxter hurt his back while he was employed by Nicholson. His claim for workers’ compensation benefits was heard, in the regular course of business, by a three-member panel of the state’s Industrial Commission. In an order signed on February 2, 2007, and filed on February 5, two members of the panel voted to award Baxter significant benefits, in the form of compensation, medical expense payments, and attorney’s fees. Baxter won by that 2-to-1 vote. But of the two members who voted in Baxter’s favor, one was a holdover. His term had expired in 2004 and the Governor had never gotten around to making a replacement appointment.
Hadn’t gotten around to it, that is, until the very day, February 2, that the panel signed the order in Baxter’s favor. That day, the Governor signed a document appointing a new commissioner to replace the holdover. The new commissioner took the oath of office on February 9.
So, was the old commissioner still holding over on February 2, the day the new appointment was made? If you read only the statute, you might think so, because the new commissioner did not take the oath—that is, did not duly qualify—until February 9. In that case, the order would be good and Baxter would be entitled to his award. If you read the Constitutional provision, however, you might think that the new commissioner was ousted on February 2, when the Governor signed the document appointing his successor. In that case, the old commissioner was no longer holding over, his vote on the panel did not count, and Baxter did not win 2-to-1. Instead, under the rules of the Industrial Commission, he lost by a 1-to-1 vote, for failure to get a majority vote in his favor.
The case is now before the North Carolina Supreme Court. Robert Baxter has a direct concern in the outcome, as does his employer. More broadly, the Supreme Court will have a chance to answer this question: Under the Constitution, does the holdover for an appointive office end at a different time than the holdover for an elective office? If it does, a couple of questions arise.
First, when is an appointment “made,” ending the holdover? In Baxter’s case, the Governor signed a document on February 2 naming the successor. Is that act sufficient to make the appointment, or must that document be delivered to someone or filed with someone? The advantage of having all holdovers end when the successor takes the oath is that that is a recognizable, definitive point in time.
Second, is there any reason, other than the language of the Constitution, to treat appointive and elective holdovers differently? What public policy is furthered by the distinction?
And third, the Constitutional provision appears to distinguish between appointive and elective holdovers “[i]n the absence of any contrary provision.” Does that mean a contrary provision within the Constitution itself, or might G.S. 128-7, which appears to treat appointive and elective holders the same, itself be a “contrary provision?
This is a cozy little corner of the law that the Supreme Court will, presumably, soon address. Oral arguments have already been heard, and the decision may come down any time.