A BILL TO BE ENTITLED
AN ACT to AMEND THE CONSTITUTION REGARDING APPOINTMENT OF MAGISTRATEs AND AUTHORIZE the USE OF EMERGENCY MAGISTRATES, as recommended by the state judicial council.
The General Assembly of North Carolina enacts:
SECTION 1.  Section 10 of Article IV of the North Carolina Constitution reads as rewritten:
"Sec. 10.  District Courts.
The General Assembly shall, from time to time, divide the State into a convenient number of local court districts and shall prescribe where the District Courts shall sit, but a District Court must sit in at least one place in each county. District Judges shall be elected for each district for a term of four years, in a manner prescribed by law. When more than one District Judge is authorized and elected for a district, the Chief Justice of the Supreme Court shall designate one of the judges as Chief District Judge. Every District Judge shall reside in the district for which he is elected.  For each county, one or more Magistrates shall be appointed in a manner prescribed by general law. Magistrates shall be officers of the District Court. The initial term of appointment for a magistrate shall be for two years and subsequent terms shall be for four years. The number of District Judges and Magistrates shall, from time to time, be determined by the General Assembly. The General Assembly may provide by general law for the appointment and assignment of Emergency Magistrates not selected for a particular county or district. Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law. Vacancies in the office of Magistrate shall be filled for the unexpired term in the manner  prescribed by law, unless otherwise provided by the General Assembly."
SECTION 2.  The  amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at an election on November 6, 2007, which election shall be conducted under the laws then governing elections in the State. Ballots, voting systems, or both may be used in accordance with Chapter 163 of the General Statutes. The question to be used in the voting systems and ballots shall be:
"[ ] FOR	[ ] AGAINST
Constitutional amendment to provide that the General Assembly may prescribe the manner of appointing magistrates and to authorize the use of emergency magistrates."
SECTION 3.  If a majority of votes cast on the question are in favor of the amendment set out in Section 1 of this act, the State Board of Elections shall certify the amendment to the Secretary of State, who shall enroll the amendment so certified among the permanent records of that office. The amendment becomes effective January 1, 2008.
SECTION 4.  G.S. 7A‑171 reads as rewritten:
"§ 7A‑171.  Numbers; appointment and terms; vacancies.
(a)	The General Assembly shall establish a minimum quota of magistrates for each county. In no county shall the minimum quota be less than one. The number of magistrates in a county, above the minimum quota set by the General Assembly, is determined by the Administrative Office of the Courts after consultation with the chief district court judge for the district in which the county is located.
(a1)	The initial term of appointment for a magistrate is two years and subsequent terms shall be for a period of four years. The term of office begins on the first day of January of the odd‑numbered year after appointment. The service of an individual as a magistrate filling a vacancy as provided in subsection (d) of this section does not constitute an initial term. For purposes of this section, any term of office for a magistrate who has served a two‑year term is for four years even if the two‑year term of appointment was before the effective date of this section, the term is after a break in service, or the term is for appointment in a different county from the county where the two‑year term of office was served.
(b)	Not earlier than the first Monday nor later than the fourth Monday in  October of each even‑numbered year, the clerk of the superior court shall submit to the  chief district court judge of the district court district or set of districts as defined in G.S. 7A‑200 in which the clerk's county is located the names of two (or more, if requested by the judge) nominees for each magisterial office for the county for which the term of office of the magistrate holding that position shall expire on December 31 of that year. Not later than the fourth Monday in December, the  chief district court judge shall appoint magistrates to fill the positions for each county of the judge's district or set of districts. The chief district court judge may reappoint an incumbent magistrate with at least six years tenure as magistrate or shall make each appointment from the nominations submitted by the clerk of the superior court. If the clerk of the superior court fails to make nominations within the time prescribed by this subsection, the chief district court judge shall appoint as magistrate a person who meets the qualifications in G.S. 7A‑171.2 whether or not such person was nominated by the clerk of the superior court. If no appointment is made by the chief district court judge by the fourth Monday in December, the appointment shall be made by the senior regular resident superior court judge of the district or set of districts as defined in G.S. 7A‑41.1(a) in which the clerk's county is located. The senior regular resident superior court judge shall appoint a person who meets the qualifications in G.S. 7A‑171.2 and is not limited to persons nominated by the clerk of the superior court.
(c)	If an additional magisterial office for a county is approved to commence on January 1 of an odd‑numbered year, the new position shall be filled as provided in subsection (b) of this section. If the additional position takes effect at any other time, it is to be filled as provided in subsection (d) of this section.
(d)	Within 30 days after a vacancy in the office of magistrate occurs the clerk of superior court shall submit to the  chief district judge the names of  up to three (or more, if so requested by the judge) nominees for the office vacated. Within 15 days after receipt of the nominations the  chief district court judge shall appoint from the nominations received a magistrate who shall take office immediately and shall serve until December 31 of the even‑numbered year, and thereafter the position shall be filled as provided in subsection (b) of this section. If the clerk of superior court fails to make nominations within the time prescribed by this subsection, the chief district court judge shall appoint as magistrate a person who meets the qualifications in G.S. 7A‑171.2 whether or not such person was nominated by the clerk of the superior court. If no appointment is made by the chief district court judge within 45 days after the vacancy occurs, the appointment shall be made by the senior regular resident superior court judge. The senior regular resident superior court judge shall appoint a person who meets the qualifications in G.S. 7A‑171.2 and is not limited to persons nominated by the clerk of the superior court."
SECTION 5.  Article 16 of Chapter 7A of the General Statutes is amended by adding a new section to read:
"§ 7A‑171.3.  Emergency magistrates.
(a)	As used in this section, "emergency magistrate" means any former magistrate who is subject to recall to active service for temporary duty as provided in this section.
(b)	Any former magistrate who has completed five years of service as a full-time magistrate in any county may apply as provided in subsection (c) of this section to become an emergency magistrate. The Director of the Administrative Office of the Courts, after consultation with the chief district court judge, may order any emergency magistrate who, in his opinion, is competent to perform the duties of a magistrate, to serve temporarily as a magistrate in any county in the State, as needed. Each order of assignment shall be in writing and entered upon the minutes of the district court in the county to which such emergency magistrate is assigned. An emergency magistrate, while assigned to temporary duty in a county, shall not be counted in determining whether the county has the maximum number of magistrates allowed under G.S. 7A‑133.
(c)	No former magistrate may become an emergency magistrate except upon written application to  the Director of the Administrative Office of the Courts certifying a desire and the ability to serve as an emergency magistrate. If the Director is satisfied that the applicant qualifies under subsection (b) of this section to become an emergency magistrate and is physically and mentally able to perform the official duties of an emergency magistrate, the Director shall appoint the applicant as an emergency magistrate. The appointment shall be effective upon the date of its issue and shall terminate when revoked by the Director.
(d)	Each emergency magistrate has the same power and authority in all matters whatsoever, in each county to which assigned, that the regular magistrates of the county would have. The chief district court judge of any district to which an emergency magistrate is assigned shall have the same administrative supervision and authority over that emergency magistrate as over the regular magistrates of the county and shall assign that magistrate to duty as provided in G.S. 7A‑146.
(e)	In addition to the compensation or retirement allowance the magistrate would otherwise be entitled to receive by law, each emergency magistrate who is assigned to temporary duty pursuant to this section shall be reimbursed for travel and subsistence expenses at the same rate as State employees generally, plus one hundred twenty‑five dollars ($125.00) for each day of active temporary duty. No emergency magistrate shall receive from the State total annual compensation for service as an emergency magistrate in excess of the Step 2 annual salary specified in the Table of Salaries of Full‑Time Magistrates in G.S. 7A‑171.1."
SECTION 6.  If the constitutional amendment proposed in Section 1 of this act is approved by the voters, then this act becomes effective January 1, 2008, and applies to appointments that take effect after that date.