Baxter v. DANNY NICHOLSON, INC.

690 S.E.2d 265, 363 N.C. 829, 2010 N.C. LEXIS 202
CourtSupreme Court of North Carolina
DecidedMarch 12, 2010
Docket351PA08
StatusPublished
Cited by1 cases

This text of 690 S.E.2d 265 (Baxter v. DANNY NICHOLSON, INC.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baxter v. DANNY NICHOLSON, INC., 690 S.E.2d 265, 363 N.C. 829, 2010 N.C. LEXIS 202 (N.C. 2010).

Opinions

[830]*830HUDSON, Justice.

This case presents the question whether the term of an appointed public officer ends immediately upon the appointment of his successor by the governor or when the successor takes the oath of office. We find that the General Assembly answered this question when it enacted N.C.G.S. § 128-7, which provides: “All officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” Under the plain meaning of the statute, we conclude that the authority of an appointed officer continues until the date on which his successor takes the oath of the office in question and thereby becomes duly qualified to begin performing the duties of that office.

On 5 February 2007, by a two-to-one majority, a panel of the Full Commission filed an opinion and award ordering defendant Danny Nicholson, Inc. to pay plaintiff Robert Baxter workers’ compensation benefits, including: (1) total disability benefits and medical expenses from 13 July 1998 until the Commission orders otherwise; (2) a ten percent penalty on all unpaid installments of compensation from 13 July 1998 on; and (3) the standard attorney’s fee award in such cases, plus an additional attorney’s fee for the time spent by plaintiff’s counsel on this matter. The award stemmed from injuries that plaintiff sustained during a workplace accident on 23 December 1996, while employed by defendant. Much of the dispute before the Industrial Commission centered on the nature of plaintiff’s trial return to work and defendant’s alleged unilateral termination of plaintiff’s benefits.

Although the Full Commission’s opinion and award was filed on 5 February 2007, the document was signed and dated by the panel on 2 February 2007. On that same date, then-Governor Michael Easley sent a letter to Commissioner Thomas Bolch, a member of the two-person majority of the panel, informing him that his service as a Commissioner was at an end and that his successor had been appointed. Commissioner Bolch’s term had actually expired in 2004, and he had been holding over in his position since that time. The Governor sent another letter, also dated 2 February 2007, to the replacement Commissioner, Danny Lee McDonald, notifying him that his appointment was “effective immediately.” Commissioner McDonald did not take the oath of office until 9 February 2007.

According to an affidavit from a member of the Governor’s staff, “Commissioner Bolch was authorized to hold over in his position . . . until the date of the swearing in of Commissioner McDonald that [831]*831took place on or about February 9, 2007. One of the important reasons for Commissioner Bolch being specifically authorized to hold over until the date of the McDonald swearing in was to give the Industrial Commission time to issue and file any decisions, such as the current Baxter case, which had already been heard on oral argument by panels involving Commissioner Bolch but which were pending the filing of a resulting formal written opinion and award.”

Based on the filing of the opinion and award after the date that Commissioner Bolch’s successor had been appointed, defendant filed a motion to vacate the decision and for reconsideration and rehearing. Defendant argued, and continues to maintain, that the. opinion and award was void as a matter of law because Commissioner Bolch no longer held his office, and the panel thus comprised only two members, who split their votes. On 13 March 2007, the Full Commission filed an order denying defendant’s motions, and defendant appealed that order, as well as the underlying 5 February 2007 opinion and award, to the Court of Appeals. In a unanimous opinion, the Court of Appeals agreed with defendant that Commissioner Bolch “was not a qualified commissioner at the time the Opinion and Award was filed because his term as commissioner had ended and his successor had been appointed.” Baxter v. Danny Nicholson, Inc., 191 N.C. App. 168, 170, 661 S.E.2d 892, 893 (2008). The Court of Appeals vacated the opinion and award as void and remanded the case to the Full Commission for rehearing. Id. at 173, 661 S.E.2d at 895. On 27 August 2009, we allowed plaintiff’s petition for discretionary review of the Court of Appeals holding, as well as the underlying substantive issues on appeal, which were not addressed by the Court of Appeals.

Article VI, Section 10 of the North Carolina Constitution, entitled “Continuation in office,” provides: “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.” N.C. Const. art. VI, § 10. Moreover, under N.C.G.S. § 128-7, entitled “Officer to hold until successor qualified,” “[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” N.C.G.S. § 128-7 (2007). Defendant argues that, had the drafters of our Constitution intended for appointed officers to hold over until their successors are appointed and qualified, as provided by the statute, then Article VI, Section 10 would have specifically included language to the effect that [832]*832appointed officers “shall hold their positions until other appointments are made and qualified.” Thus, according to defendant, the General Assembly essentially exceeded its legislative authority by enacting a statute that, in defendant’s view, conflicts with this constitutional provision.

When considering the constitutionality of a statute, this Court long ago articulated the following principles:

The Constitution is the supreme law. It is ordained and established by the people, and all judges are sworn to support it. When the constitutionality of an act of the General Assembly is questioned, the courts place the act by the side of the Constitution, with the purpose and the desire to uphold it if it can be reasonably done, but under the obligation, if there is an irreconcilable conflict, to sustain the will of the people as expressed in the Constitution, and not the will of the legislators, who are but agents of the people.

State ex rel. Att’y-Gen. v. Knight, 169 N.C. 396, 416, 169 N.C. 333, 352, 85 S.E. 418, 427 (1915). Thus, “[ejvery presumption favors the validity of a statute. It will not be declared invalid unless its unconstitutionality be determined beyond reasonable doubt. This is a rule of law which binds us in deciding this case.” Baker v. Martin, 330 N.C. 331, 334-35, 410 S.E.2d 887, 889 (1991) (brackets in original) (citations and internal quotation marks omitted); see also Tetterton v. Long Mfg. Co., 314 N.C. 44, 49, 332 S.E.2d 67, 70 (1985) (“A statute will not be declared unconstitutional unless it is clearly so, and all reasonable doubt will be resolved in favor of its validity.” (citation omitted)); In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978) (“A well recognized rule in this State is that, where a statute is susceptible to two interpretations — one constitutional and one unconstitutional — the Court should adopt the interpretation resulting in a finding of constitutionality.” (citations omitted)); Painter v. Wake Cty. Bd. of Educ., 288 N.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baxter v. DANNY NICHOLSON, INC.
690 S.E.2d 265 (Supreme Court of North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
690 S.E.2d 265, 363 N.C. 829, 2010 N.C. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-danny-nicholson-inc-nc-2010.