# Baker v. Martin > Supreme Court of North Carolina · December 6, 1991 · 330 N.C. 331 URL: https://www.frixlaw.com/law-library/cases/9614819 ## Case - **Full name:** JAMES LEONARD BAKER, JR. v. JAMES G. MARTIN, in His Capacity as Governor of the State of North Carolina; LACY H. THORNBURG, in His Capacity as Attorney General With the State of North Carolina; And J. TODD BAILEY, in His Capacity as President of the 24th Judicial District Bar - **Court:** Supreme Court of North Carolina - **Decided:** December 6, 1991 - **Citations:** 330 N.C. 331; 410 S.E.2d 887; 1991 N.C. LEXIS 806 - **Precedential status:** Published - **Opinion:** Dissent by Martin - **Judges:** Webb, Martin, Exum, Mitchell - **Cited by:** 57 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9614819 ## How later opinions describe it (automated extraction) - recognizing that the expressio unius maxim has never been applied to interpret the state constitution because the maxim "flies directly in the face" of the principle that "[a]ll power which is not expressly limited ... in our State Constitution remains with the people, and an … - explaining that legislation will not be invalidated unless it is unconstitutional "beyond reasonable doubt" (quoting Gardner v. City of Reidsville , 269 N.C. 581, 595, 153 S.E.2d 139, 150 (1967) ) - stating our General Assembly IN RE: CHASTAIN 2022-NCCOA-54 Opinion of the Court may add conditions of disqualifications for those seeking appointment to an office ## Opinion text Justice MARTIN dissenting. I conclude that N.C.G.S. § 7A-142, in part, violates our Constitution; therefore, I dissent from the majority opinion. The majority is correct in holding that this plaintiff had standing to bring this action challenging the constitutionality of N.C.G.S. § 7A-142. The majority falls into error when it holds that North Carolina Constitution article VI, section 6 deals only with election to office. The section reads in its entirety: Sec. 6. Eligibility to elective office. Every qualified voter in North Carolina who is 21 years of age, except as in this Constitution disqualified, shall be eligible for election by the people to office. N.C. Const, art. VI, § 6. This section of our Constitution, establishes the qualifications that a person must possess in order to hold an elective office in North Carolina. These qualifications apply no matter how a person initially obtains the office, by election or by appointment. It *345 is undisputed that the office of district court judge is an elective office. N.C. Const, art. IV, § 10 (District Judges shall be elected). In interpreting our Constitution, this Court has held that every provision of the constitution is significant. It is supreme and none of its provisions can be disregarded, ignored or broken in whole or in part. Nor can any coordinate branch of government add to it or assume power not conferred by it. State v. Patterson, 98 N.C. 660 (1887); 5 Strong’s N.C. Index 4th Constitutional Law § 1 (1990). Thus, this Court cannot disregard that portion of article VI, section 6 reading “Eligibility to elective office,” which establishes that the section controls eligibility to elective office and is not, as the majority states, limited to “election to office.” Our attorney general has interpreted article VI, section 6 to establish the qualifications for “elective office”; thus, a deputy sheriff need not reside in the county in which he serves. Opinion of Attorney General to Sheriff John H. Stockard, 41 Op. N.C. Att’y Gen. 754 (1972). A person must be eligible to hold an elective office under article VI, section 6, regardless of whether he is elected or appointed to the office. One not eligible under this section can neither be appointed nor elected to public office. Under the majority’s view of this section, one not eligible under its terms could be appointed, but not elected to public office. This would be an absurd result and one not contemplated by the framers of this section. The majority’s interpretation of our Constitution leads to the incongruous result of limiting constitutional disqualifications to office for only those “who are elected by the people,” and not those appointed to office. This would allow different qualifications for judges for the same office depending upon whether the judge was elected or appointed. Surely, this is contrary to the genius of the people in framing this article of our Constitution. Article VI, section 8 sets forth the constitutional disqualifications for office, none of which affect plaintiff herein. The legislature cannot add to the constitutional disqualifications or qualifications for public office. Cole v. Sanders, 174 N.C. 112 , 93 S.E. 476 (1917) (Clark, C.J., concurring); State v. Knight, 169 N.C. 333 , 85 S.E. 418 (1915) (Women could not vote, therefore not eligible to elective office); State v. Bateman, 162 N.C. 588 , 77 S.E. 768 (1913); Lee v. Dunn, 73 N.C. 595 (1875). *346 In Bateman , the legislature in establishing a recorder’s court for Plymouth in Washington County required that the recorder, an elective office, be a “licensed attorney at law.” This Court held that this was an additional disqualification for office and violated article VI, section 7 (now section 6) of the State Constitution. The purpose of section 6 and its predecessor was to prevent the legislature from disqualifying additional persons from holding elective office. Accord Lee v. Dunn, 73 N.C. 595 (1875). Thus, the legislature had no authority to establish as an additional disqualification for the elective office of district court judge that the person appointed is other than a member of the same political party as the vacating judge. In so doing, the legislature violated article VI, sections 6 and 8 of our Constitution, and that portion of N.C.G.S. § 7A-142 is null and void. The remainder of the statute is unaffected. Hobbs v. Moore County, 267 N.C. 665 , 149 S.E.2d 1 (1966). While it may be a rational goal of government to “protect the mandate” of a previous election, this cannot be achieved in a manner which affronts specific constitutional provisions. In developing the argument of “protecting the mandate” of an election, the majority relies upon Rivera-Rodriguez v. Popular Democratic Party, 457 U.S. 1 , 72 L. Ed. 2d 628 (1982). As the majority opinion concedes, this case is not helpful to the analysis of the issues before this Court. Rivera is concerned with the interpretation of the federal constitution and adds nothing to our task of construing provisions of our State Constitution that have no analogue in the federal charter. The legislature’s effort to “protect the mandate” cannot withstand constitutional scrutiny. The majority’s argument that “in a manner prescribed by law” must be interpreted the same in every instance that it appears is answered by the majority’s opinion itself. True it is, as stated by the majority, the Constitution does not contain the “complicated procedure governing elections” of judicial officers. So, the election of judges “in a manner prescribed by law” does involve implementing legislation. However, the “manner prescribed by law” for the filling of vacancies in the office of district judge is contained in article IV, section 19 of the Constitution itself: “[VJacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor . . . .” This is a clear, complete, and detailed *347 manner of filling judicial vacancies for the office of district judge. No implementing legislation is required; the General Assembly has no part to play in the filling of vacancies in the office of district judge. For these reasons, I vote to hold that the clause of N.C.G.S. § 7A-142 “who are members of the same political party as the vacating judge” violates article VI, sections 6 and 8 of the State Constitution and is null and void. Plaintiff is entitled to the entry of summary judgment in his favor. Chief Justice EXUM and Justice MITCHELL join in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9614819. Public record. Not legal advice.