Baker v. Martin

Justice Mitchell

dissenting.

Only by focusing upon a single one-sentence section of one article of the Constitution of North Carolina — without proper regard for other sections of that Constitution — is the majority able to conclude that the challenged provision of N.C.G.S. § 7A-142 is constitutionally valid. As Justice Martin has demonstrated in his dissenting opinion in which the Chief Justice and I have joined, the majority errs in its view that Section 6 of Article VI of the Constitution of North Carolina applies only to “elections by the people to office.” Even if it is assumed arguendo that the majority is correct in this interpretation of Section 6, however, the majority still errs in concluding that the legislature has constitutional authority to adopt disqualifications for state office which disqualify otherwise qualified persons who are not members of a particular political party.

In their Constitution, the people of North Carolina have established an integrated and comprehensive set of disqualifications for state office. In Section 8 of Article VI of the Constitution of North Carolina, entitled “Disqualifications for office,” the people of North Carolina have declared that certain classes of “persons *343shall be disqualified for [state] office.” Section 8 expressly disqualifies from holding elective state office, for example, those not qualified to vote in an election for the office they seek to fill. Section 8 also mandates, inter alia, that those who have been adjudged guilty of treason, of any other felony, or of corruption or malpractice in office shall be disqualified from holding any state office — by election or appointment.

By adopting the integrated and comprehensive list of disqualifications contained in Section 8, the people of North Carolina precluded any other disqualifications. This is so because, under the doctrine of expressio unins est exclusio alterius, the expression of specific disqualifications implies the exclusion of any other disqualifications. See Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 407 S.E.2d 819 (1991); Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655 (1988); Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 354 S.E.2d 495 (1987). Although the doctrine should not be applied blindly in cases of state constitutional interpretation, it does have a proper place in such cases. E.g., Attorney General of Canada v. Tysowski, 118 Idaho 737, 739, 800 P.2d 133, 135 (Idaho Ct. App. 1990) (doctrine applies in state constitutional interpretation); State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 475 (Tex. Crim. App. 1985) (applying doctrine to hold that state constitutional grounds for disqualification of judges are the exclusive grounds). See Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953) (“Questions of constitutional construction are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments. . . .”). I believe that the statement of specific grounds for disqualifications from office contained in the Constitution of North Carolina must be held to necessarily imply the exclusion of other grounds for disqualification, such as disqualification due to membership in a particular political party.

In any event, until today I had thought it well established — and that a majority of this Court understood, beyond any reasonable doubt — that the legislature cannot add to the disqualifications from state office prescribed in the Constitution of North Carolina. See, e.g., Cole v. Sanders, 174 N.C. 112, 93 S.E.2d 476 (1917) (Clark, C.J., concurring). Certainly, the people of North Carolina have understood this fundamental principle; therefore, when the people decided to disqualify those not authorized to practice law from election or appointment to this Court or the other courts of the state, they recognized that they could add such disqualification *344only by an amendment to the Constitution of North Carolina. See N.C. Const, art. IV, § 22 (adopted by vote of the people at the election held 4 November 1980).

The people of North Carolina have not included a provision in their Constitution disqualifying any person from holding any state office — whether attained by election or appointment — because he or she is not a member of a particular political party. Nor have the people seen fit to give a majority of the legislature or of this Court the authority to create any such partisan political disqualification. The legislature has exceeded its constitutional authority by attempting to adopt such a partisan political disqualification as a part of N.C.G.S. § 7A-142, and the majority of this Court errs in upholding the legislature’s unconstitutional act.

For the foregoing reasons, I dissent from the opinion and holding of the majority.

Chief Justice Exum and Justice MARTIN join in this dissenting opinion.