Justice Timmons-Goodson Resigns
The vacancy creates an interesting situation for Governor Perdue. The North Carolina Constitution provides the Governor with the authority to fill judicial vacancies, such as this one, that occur between elections. However, in 2011, Governor Perdue issued an executive order delegating almost all of her authority to fill judicial vacancies to an 18 person judicial nominating commission. The Commission has up to six weeks, unless the Governor specifies a shorter time, to nominate three individuals to fill the vacancy. The Governor, after allowing a period for public comment, must choose one of the three nominees to fill the vacancy.
Given that only slightly more than four weeks remain in Perdue's time in office, there is an awful lot of work that needs to be done to fill the vacancy prior to Governor-elect Pat McCrory taking office. Upon taking office, McCrory will need to decide if he wants to allow the Executive Order, which claims to be binding on future governors, and the judicial nominating commission to remain in place, rescind the executive order and make the appointment on his own, or replace it with a method of judicial selection of his own choosing.
Some question has arisen whether the Judicial Nominating Commission is advisory or mandatory.
The final Whereas clause in the Executive Order provides as follows (emphasis is mine):
WHEREAS, it is my belief that the State of North Carolina can best achieve this goal by establishing a judicial screening commission composed of outstanding lawyers and laypersons from all quarters of the State, to assist me in exercising these important constitutional duties.
However, the body of the Executive Order, which actually implements this purpose, states as follows (again, emphasis mine):
Section 1. Purpose and Scope of this Executive Order
On and after July 1, 2011, when a vacancy occurs in the office of ... Associate Justice of the Supreme Court ... the Judicial Nominating Commission established by this Order shall nominate, from among applicants for appointment to any such vacancy, the three persons it determines most qualified to fill the vacancy, and the Governor will appoint one of those persons to the position....The use of the words "shall" and "will" instead of "may" tend to indicate that the Governor must utilize the Commission process to fill the vacancy, the Commission must nominate three people for the vacancy, and the Governor must appoint one of the Commission's three nominees to fill the vacancy.