{
  "id": 4151628,
  "name": "ROBERT BAXTER, Employee v. DANNY NICHOLSON, INC., Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent)",
  "name_abbreviation": "Baxter v. Danny Nicholson, Inc.",
  "decision_date": "2010-03-12",
  "docket_number": "No. 351PA08",
  "first_page": "829",
  "last_page": "840",
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          "page": "489-90",
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          "page": "547",
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          "page": "388",
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          "page": "70",
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          "page": "889",
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          "page": "257",
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          "page": "319",
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          "page": "420",
          "parenthetical": "explaining that when possible, \"[reconciliation is a postulate of constitutional as well as of statutory construction\" (citation omitted)"
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    {
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          "page": "638",
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        {
          "page": "842",
          "parenthetical": "explaining that \"failure to take an oath of office\" may subject one to a penalty but would not invalidate official acts performed before taking the oath"
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          "page": "842"
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          "page": "327",
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          "page": "327"
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          "page": "63",
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          "page": "63"
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        {
          "page": "771",
          "parenthetical": "citation omitted"
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        {
          "parenthetical": "emphasis added"
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    "judges": [],
    "parties": [
      "ROBERT BAXTER, Employee v. DANNY NICHOLSON, INC., Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent)"
    ],
    "opinions": [
      {
        "text": "HUDSON, Justice.\nThis 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. \u00a7 128-7, which provides: \u201cAll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\u201d 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.\nOn 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\u2019 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\u2019s fee award in such cases, plus an additional attorney\u2019s fee for the time spent by plaintiff\u2019s 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\u2019s trial return to work and defendant\u2019s alleged unilateral termination of plaintiff\u2019s benefits.\nAlthough the Full Commission\u2019s 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\u2019s 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 \u201ceffective immediately.\u201d Commissioner McDonald did not take the oath of office until 9 February 2007.\nAccording to an affidavit from a member of the Governor\u2019s staff, \u201cCommissioner Bolch was authorized to hold over in his position . . . until the date of the swearing in of Commissioner McDonald that took 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.\u201d\nBased on the filing of the opinion and award after the date that Commissioner Bolch\u2019s 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\u2019s 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 \u201cwas 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.\u201d 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\u2019s 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.\nArticle VI, Section 10 of the North Carolina Constitution, entitled \u201cContinuation in office,\u201d provides: \u201cin 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.\u201d N.C. Const. art. VI, \u00a7 10. Moreover, under N.C.G.S. \u00a7 128-7, entitled \u201cOfficer to hold until successor qualified,\u201d \u201c[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\u201d N.C.G.S. \u00a7 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 appointed officers \u201cshall hold their positions until other appointments are made and qualified.\u201d Thus, according to defendant, the General Assembly essentially exceeded its legislative authority by enacting a statute that, in defendant\u2019s view, conflicts with this constitutional provision.\nWhen considering the constitutionality of a statute, this Court long ago articulated the following principles:\nThe 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.\nState ex rel. Att\u2019y-Gen. v. Knight, 169 N.C. 396, 416, 169 N.C. 333, 352, 85 S.E. 418, 427 (1915). Thus, \u201c[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.\u201d 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) (\u201cA statute will not be declared unconstitutional unless it is clearly so, and all reasonable doubt will be resolved in favor of its validity.\u201d (citation omitted)); In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978) (\u201cA well recognized rule in this State is that, where a statute is susceptible to two interpretations \u2014 one constitutional and one unconstitutional \u2014 the Court should adopt the interpretation resulting in a finding of constitutionality.\u201d (citations omitted)); Painter v. Wake Cty. Bd. of Educ., 288 N.C. 165, 177, 217 S.E.2d 650, 658 (1975) (\u201cIn considering the constitutionality of a statute, it is well established that the courts will indulge every presumption in favor of its constitutionality.\u201d (citations omitted)).\nIn State ex rel. Martin v. Preston, we further explained the reasoning behind this deference:\nSince our earliest cases applying the power of judicial review under the Constitution of North Carolina, . . . we have indicated that great deference will be paid to acts of the legislature \u2014 the agent of the people for enacting laws. This Court has always indicated that it will not lightly assume that an act of the legislature violates the will of the people of North Carolina as expressed by them in their Constitution and that we will find acts of the legislature repugnant to the Constitution only \u201cif the repugnance do really exist and is plain.\"\nOur acceptance of our duty to exercise the power of judicial review under the Constitution of North Carolina, tempered by our recognition of every reasonable presumption that the legislature as the lawmaking agent of the people has not violated the people\u2019s Constitution, has led this Court in more recent generations to accept certain principles of state constitutional construction which are now well established. For example, it is firmly established that our State Constitution is not a grant of power. All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution.\n325 N.C. 438, 448-49, 385 S.E.2d 473, 478 (1989) (emphases added) (citations omitted). Likewise, \u201call constitutional provisions must be read in pari materia.\" Stephenson v. Bartlett, 355 N.C. 354, 378, 562 S.E.2d 377, 394 (2002).\nThe statute here provides that \u201c[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\u201d N.C.G.S. \u00a7 128-7 (emphases added). Giving the words and construction of the statute their plain meaning, the phrase \u201cand duly qualified,\u201d immediately following the adjectives \u201celected or appointed,\u201d serves to modify and describe both types of officer. Thus, under the statute, an appointed public officer holds over in his or her position until a successor is both appointed and duly qualified. By contrast, the constitutional provision explicitly only allows an elected officer to hold over until a successor is \u201cchosen and qualified,\u201d whereas appointed officers \u201cshall hold their positions until other appointments are made.\u201d N.C. Const. art. VI, \u00a7 10.\nSuch a variance renders the statute unconstitutional if and only if our Constitution evinces the drafters\u2019 intent to limit the power of the legislature to address the policies advanced here \u2014 namely, to require an oath of office and to guard against vacancies in appointed offices \u2014 or to otherwise prohibit the legislature\u2019s exercise of that power. See Preston, 325 N.C. at 449, 385 S.E.2d at 478; see also Baker, 330 N.C. at 338-39, 410 S.E.2d at 891-92 (\u201cUnless the Constitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.\u201d). As for the oath, the drafters made their intentions clear by including a specific provision requiring an oath of office: Article VI, Section 7 states that, \u201c[b]efore entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath ....\u201d Both N.C.G.S. \u00a7 128-7 and N.C.G.S. \u00a7 128-5, which imposes a fine on any officer required to take an oath who fails to do so \u201cbefore entering on the duties of the office,\u201d are consistent with and indeed promote this goal.\nIn addition, we find no language in our state Constitution suggesting any limitation on the legislature\u2019s authority to advance the policy of guarding against vacancies in appointed offices. Cf. Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 12, 413 S.E.2d 541, 547 (1992) (\u201cThe legislative attempt to require the resignation of those having plaintiffs\u2019 status as holders of \u2018another elective office\u2019 imposes an additional qualification for elective office, not provided by our Constitution; thus, it fails to pass constitutional muster.\u201d). But see Baker, 330 N.C. at 333-34, 339, 410 S.E.2d at 888-89, 892 (upholding as constitutional a statute requiring that candidates for appointment to fill unexpired terms of district court judges be members of the same political party as the vacating judge, because the Constitution does not limit disqualifications for appointed offices and \u201c[t]he wording . . . also does not necessarily imply that additional disqualifications cannot be added by the General Assembly for those persons not elected by the people\u201d).\nOur reading likewise conforms with the long-standing public policy of this State against vacancies in both elected and appointed offices:\nThe provision that the incumbents of offices, both elective and appointive, shall hold until their successors are selected and qualified, is in accord with a sound public policy which is against vacancies in public offices and requiring that there should always be some one in position to rightfully perform these important official duties for the benefit of the public and of persons having especial interest therein.\n[The provisions] in reference to these appointive offices .... are recognized both in our Constitution and general statutes, and whether regarded as part of an original term or a new and conditional term by virtue of the statute, the holders are considered by the authorities as officers de jure until their successors have been lawfully elected or appointed by the body having the right of selection, and have been properly qualified .....\nMarkham v. Simpson, 175 N.C. 135, 137, 175 N.C. 146, 148, 95 S.E. 106, 107 (1918) (emphasis added) (citations omitted). As noted by the State in its amicus brief here to this Court, \u201cour state government would be less able to serve its citizens effectively if significant gaps in time existed between when one official leaves office and his or her successor begins serving.\u201d As such, the State maintains that \u201cit is imperative that there is no uncertainty as to when the authority of an incoming official commences and when the authority of the outgoing ceases,\u201d and the General Assembly has provided that certainty by enacting N.C.G.S. \u00a7 11-7, requiring the oath of office before taking office, and \u00a7 128-7, directing that an appointed official hold over until his successor is duly qualified.\nHere, when we place the constitutional and statutory provisions side by side, we see that the General Assembly has merely expanded on Article VI, Sections 7 and 10, to require that a public servant swear an oath before taking office, and to ensure that the office will not be made vacant by a delay between the appointment of a successor and his lawful entry into office upon becoming qualified, in this case, by taking the oath. See, e.g., N.C. Const. art. VI, \u00a7 7 (\u201cBefore entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath . . . .\u201d); N.C.G.S. \u00a7 11-7 (2007) (providing that \u201cevery person elected or appointed to hold any office of trust or profit in the State shall, before taking office or entering upon the execution of the office, take and subscribe to the following oath . . .\u201d); Town of Hudson v. Fox, 257 N.C. 789, 790, 127 S.E.2d 556, 556 (1962) (noting that commissioners \u201cwere qualified by taking the required oath\u201d); Sudderth v. Smyth, 35 N.C. (13 Ired.) 307, 308, 35 N.C. 452, 453 (1852) (observing that a deputy clerk is not qualified until he \u201ctak[es] the oaths to support the constitutions of the United States and of this State, and an oath of office\u201d).\nBy enacting N.C.G.S. \u00a7 128-7, the General Assembly has essentially provided the type of \u201cassurance for the faithful discharge of the duties of the office,\u201d State ex rel. Spruill v. Bateman, 162 N.C. 486, 489-90, 162 N.C. 588, 593, 77 S.E. 768, 769 (1913) (emphasis omitted), that this Court has previously recognized as well within the legislature\u2019s role and the dictates of the Constitution. See also State ex rel. Lee v. Dunn, 73 N.C. 595, 604-08 (1875) (holding that the General Assembly could not impose any additional qualification on eligibility for elective office, other than what is provided in the Constitution, and concluding that requiring a sheriff to tender a bond and receipts for taxes collected is not an added qualification). Indeed, we conclude that the holdover language at issue here is consistent with the constitutional and statutory requirements that an elected or appointed officer must take the oath of office \u201c[b]efore entering upon the duties\u201d of that office, N.C. Const. art. VI, \u00a7 7; N.C.G.S. \u00a7 11-7, and also ensures that a vacancy will not be.created by a gap between appointment to office and assumption of the duties of that office upon taking the oath.\nWe decline to approve an interpretation that would result in a vacancy and cessation of the work of an appointed officer immediately upon the announcement of a successor. Voiding actions taken by a holdover official during the time between the announcement of a successor and that successor\u2019s swearing-in could promote disruption and delay completion of important work already performed on the State\u2019s behalf. We see no reason to act contrary to the reasoning outlined in Markham, or to conclude that immediately terminating an officeholder\u2019s authority would represent a more sound public policy. We conclude instead that the statutory framework specifically provided by the General Assembly wisely and plainly avoids this problem of vacancies, and is consistent with the Constitution.\nIn sum, we find unpersuasive defendant\u2019s arguments that we should ignore the plain language of N.C.G.S. \u00a7 128-7 and focus exclusively on the distinction drawn in Article VI, Section 10 between elected and appointed officers. We discern no conflict \u2014 and certainly no \u201cplain repugnance\u201d \u2014 between Article VI, Section 10 and N.C.G.S. \u00a7 128-7 that would defeat the presumption of constitutionality and require us to ignore the meaning of the statute, particularly in light of Article VI, Section 7. The constitutional and statutory provisions may reasonably be read and considered together, and nothing in our Constitution suggests that the drafters sought to limit the power of the legislature to require an oath and to guard against vacancies in appointed offices. Accordingly, we hold that Commissioner Bolch\u2019s official authority continued from 2 February 2007 until Commissioner McDonald was sworn in as his successor on 9 February 2007. The opinion and award of the Full Commission filed in this case on 5 February 2007 stands as a valid exercise of that authority.\nWe reverse the Court of Appeals opinion and remand to that court for consideration of the substantive issues raised in defendant\u2019s appeal of the Full Commission\u2019s opinion and award in favor of plaintiff.\nREVERSED AND REMANDED.\n. The concurring opinion is inconsistent with our past jurisprudence on the unconstitutionality of legislatively required additional qualifications for elective offices, as compared with the constitutionality of such qualifications for appointed offices. See, e.g., Baker, 330 N.C. at 341, 410 S.E.2d at 893 (\u201cThe plaintiff relies on Starbuck v. Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960); Cole v. Sanders, 174 N.C. 112, 93 S.E. 476 (1917); Spruill v. Bateman, 162 N.C. 588, 77 S.E. 768; and State of N.C. by the At. Gen\u2019l, Hargrove, ex rel. Lee v. Dunn, 73 N.C. 595 (1875), for the proposition that qualifications for holding office may not be added to those found in the Constitution. These cases deal with elections to offices and are not applicable to this case. This case deals with an appointment to office.\u201d). As this Court noted in Baker, the General Assembly has enacted any number of statutes imposing additional qualifications for appointed offices, including for vacant seats to the General Assembly, notaries public, and the various state licensing boards. Id. at 339-40, 410 S.E.2d at 892.\n. The concurring opinion states that \u201cMr. Bolch\u2019s authority . . . could have been displaced by the actions of the newly appointed Mr. McDonald before Mr. McDonald took the oath.\u201d However, the validity of any actions taken by Commissioner McDonald is not at issue here. This case involves only Mr. Bolch\u2019s holdover authority to concur in a Full Commission opinion and award. As such, we decline to speculate on hypothetical actions taken by Mr. McDonald between 2 February and 9 February 2007, which issue is not before this Court.",
        "type": "majority",
        "author": "HUDSON, Justice."
      },
      {
        "text": "Justice BRADY\nconcurring in the result only.\nI agree with the ultimate holding of the majority opinion, but write further to clarify important constitutional principles and to emphasize the importance of the continuity in government that is essential for a stable and ordered society. I begin with an analysis of the relevant constitutional provisions because the \u201cNorth Carolina Constitution expresses the will of the people of this State and is, therefore, the supreme law of the land.\u201d In re Martin, 295 N.C. 291, 299, 245 S.E.2d 766, 771 (1978) (citation omitted).\nThe North Carolina Constitution distinguishes between elected and appointed officials when providing for continuity of service in government offices. Article VI, Section 10 states: \u201cIn 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.\u201d N.C. Const. art. VI, \u00a7 10 (emphasis added). This provision establishes that elected officials must be chosen through the appropriate elective processes \u201cand qualified.\u201d Id. (emphasis added). Conversely, under the Constitution an appointed official holds the position until another appointment is made. See State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 479 (1989) (\u201cIn interpreting our Constitution \u2014 as in interpreting a statute \u2014 where the meaning is clear from the words used, we will not search for a meaning elsewhere.\u201d (citing Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 920-21 (1932))). Although the Constitution contains a host of other qualifications for certain elected officials, no other qualifications for appointed officials are constitutionally mandated. See, e.g., N.C. Const. art. Ill, \u00a7 2 (listing qualifications for election to the office of Governor or Lieutenant Governor); id. art. IV, \u00a7 22 (listing qualifications for elected justices and judges).\nThe majority opinion cites Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991) for the proposition that the General Assembly may add qualifications not found in the Constitution to the holding of appointed offices. See id. at 341-42, 410 S.E.2d at 893. This Court in Baker recognized that \u201c[u]nless the Constitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.\u201d Id. at 338-39, 410 S.E.2d at 891-92 (emphasis added). I agree with \u201cthis general principle of constitutional interpretation,\u201d id. at 339, 410 S.E.2d at 892, although I find that when the taking of the oath is the issue under consideration, the Constitution expresses when that event occurs. The Constitution makes the oath a prerequisite to \u201centering upon the duties of an office\u201d for appointed officials. N.C. Const. art. VI, \u00a7 7 (\u201cBefore entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath: . .\u201d). Moreover, this Court has long recognized that \u201c[p]ublic officers are usually required to take an oath,\u201d but the oath is a \u201cmere incident[], and constitute[s] no part of the office.\u201d State ex rel. Clark v. Stanley, 66 N.C. 59, 63 (1872) (emphasis added). As such, when the taking of the oath is considered, it appears the Constitution provides that an appointed official holds the office to which he has been appointed first and then subsequently takes the oath, not as a qualification to being appointed to the office, but merely as a prerequisite to commencing the duties of the post. This view is in line with the statutory penalty recognized for someone who exercises the duties of an office before taking a required oath. See N.C.G.S. \u00a7 128-5 (2009) (requiring the taking of the oath \u201cbefore entering on the duties of the office,\u201d but not requiring the oath as an added qualification to holding an appointed office). Thus, exercising the duties of the office before taking the oath cannot invalidate those acts, although doing so may subject the official to the possibility of the statutory penalties. See Vance S. Harrington & Co. v. Renner, 236 N.C. 321, 327, 72 S.E.2d 838, 842 (1952) (explaining that \u201cfailure to take an oath of office\u201d may subject one to a penalty but would not invalidate official acts performed before taking the oath). In light of these constitutional considerations, N.C.G.S. \u00a7 11-7, which requires the oath for elected and appointed State officials, mandates a precursor to carrying out the duties of an appointed post but does not make the oath an added qualification to being appointed to an office.\nAlongside the relevant constitutional provisions, this Court has long recognized that \u201csound public policy ... is against vacancies in public offices and require [s] that there should always be some one in position to rightfully perform these important official duties for the benefit of the public.\u201d State ex rel. Markham v. Simpson, 175 N.C. 146, 148, 175 N.C. 135, 137, 95 S.E. 106, 107 (1918). The General Assembly has codified this public policy, stating: \u201cAll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.\u201d N.C.G.S. \u00a7 128-7 (2009). Interpreting section 128-7 in such a way that it corresponds with the Constitution, see Sessions v. Columbus Cty., 214 N.C. 634, 638, 200 S.E. 418, 420 (1939) (explaining that when possible, \u201c[reconciliation is a postulate of constitutional as well as of statutory construction\u201d (citation omitted)), results in the view that the phrase \u201cduly qualified\u201d in regard to appointed officials taking the oath means \u201cduly qualified to enter upon the duties of the office.\u201d\nTurning to the case sub judice, \u201c[t]he Industrial Commission is primarily an administrative agency of the State.\u201d Hanks v. S. Pub. Utils. Co., 210 N.C. 312, 319, 186 S.E. 252, 257 (1936) (citation omitted). Members of the Commission are public officers. See Stanley, 66 N.C. at 63. When Mr. McDonald was appointed as a member of the Industrial Commission on 2 February 2007, under the Constitution and by statute, his appointment was effective immediately for purposes of holding the office. N.C. Const. art. VI, \u00a7 10; see also N.C.G.S. \u00a7 97-77 (2009) (stating that \u201c[t]he Governor shall appoint the members of the [Industrial] Commission,\u201d implying immediate efficacy to the appointment). Moreover, as explained above, the Constitution provides the taking of the oath for appointed officials as a prerequisite to entering upon the duties of the position and not as a qualification to being appointed to office or for holding an office. The fact that Mr. McDonald did not attempt to enter upon the duties of his office before he took the oath on 9 February 2007 means he complied with Article VI, Section 7 of the Constitution and avoided the possibility of the penalties mentioned in N.C.G.S. \u00a7 128-5. Moreover, Mr. Bolch \u201ccontinued in [his] respective office[]\u201d under the statutory authority established in N.C.G.S. \u00a7 128-7 \u2014 which provides continuity in government \u2014 until Mr. McDonald was qualified to enter upon the duties of his office after taking the oath on 9 February 2007.\nMr. Bolch\u2019s authority, although valid as a statutory holdover official, could have been displaced by the actions of the newly appointed Mr. McDonald before Mr. McDonald took the oath. See Renner, 236 N.C. at 327, 72 S.E.2d at 842. For reasons that do not require elaboration here, an official may need to begin making some decisions and performing certain duties immediately upon appointment out of necessity and for the'good of the public, regardless of whether the oath has been administered at that point. The important principle of continuity in governance means that, even before taking the oath, a newly appointed official may need to make hiring or firing decisions or other administrative determinations that will enable him to \u201chit the ground running\u201d as soon as the oath is taken. In this case, however, the employer introduced no evidence that Mr. McDonald entered into the performance of his duties of the office of commissioner before taking the oath. Consequently, the 5 February 2007 opinion and award of the Full Commission bearing Mr. Bolch\u2019s signature is valid, as the majority opinion recognizes.\nOut of concern for clarifying the unique and paramount role of the Constitution in this matter and in order to stress the importance of continuity in government offices, I respectfully concur with the holding of the majority.\n. Indeed, the Preamble to our Constitution affirms:\nWe, the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for the preservation of the American Union and the existence of our civil, political and religious liberties, and acknowledging our dependence upon Him for the continuance of those blessings to us and our posterity, do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.\nN.C. Const, pmbl.",
        "type": "concurrence",
        "author": "Justice BRADY"
      }
    ],
    "attorneys": [
      "DeVore, Acton & Stafford, P.A., by William D. Acton, Jr., for plaintiff-appellant.",
      "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Shelley W. Coleman, for defendant-appellee.",
      "Roy Cooper, Attorney General, by Christopher G. Browning, Jr., Solicitor General, and John F. Maddrey, Assistant Solicitor General, for the State of North Carolina, amicus curiae.",
      "Robert F. Orr and Jeanette K. Doran for North Carolina Institute for Constitutional Law, amicus curiae."
    ],
    "corrections": "",
    "head_matter": "ROBERT BAXTER, Employee v. DANNY NICHOLSON, INC., Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent)\nNo. 351PA08\n(Filed 12 March 2010)\nPublic Officers and Employees\u2014 Industrial Commissioner\u2014 new appointment \u2014 oath not yet taken \u2014 authority of prior Commissioner\nThe authority of an Industrial Commissioner holding over after his term expired because no replacement had been appointed continued through the period between a successor\u2019s appointment and the successor taking the oath of office, and the Industrial Commission correctly denied defendant\u2019s motion to vacate a workers\u2019 compensation opinion and award made during the holdover period by a panel on which the holdover Commissioner was a member of the two-to-one majority. There is nothing in the North Carolina Constitution to suggest that its drafters sought to limit the power of the legislature to require an oath and to guard against vacancies in appointed offices. The statutory framework provided by the General Assembly wisely and plainly avoids the problem of vacancies and is consistent with the Constitution. N.C.G.S. \u00a7 128-7.\nJustice BRADY concurring in the result only.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 191 N.C. App. 168, 661 S.E.2d 892 (2008), vacating an opinion and award filed 5 February 2007 by the North Carolina Industrial Commission and remanding the case to the Commission. Heard in the Supreme Court 18 November 2009.\nDeVore, Acton & Stafford, P.A., by William D. Acton, Jr., for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Shelley W. Coleman, for defendant-appellee.\nRoy Cooper, Attorney General, by Christopher G. Browning, Jr., Solicitor General, and John F. Maddrey, Assistant Solicitor General, for the State of North Carolina, amicus curiae.\nRobert F. Orr and Jeanette K. Doran for North Carolina Institute for Constitutional Law, amicus curiae."
  },
  "file_name": "0829-01",
  "first_page_order": 867,
  "last_page_order": 878
}