The Authority of Assistant DAs When the Elected DA Resigns

Two elected district attorneys resigned mid-term yesterday: Colon Willoughby in Wake County (to move into private practice), and Jerry Wilson in Watauga and four other mountain counties (citing medical reasons). When an elected DA resigns, the governor is empowered to appoint an interim DA until the next election. N.C. Const. art. IV, § 19. Sometimes there is enough time to have an interim DA selected and sworn in so that there is no gap between the resignation of the elected DA and the appointment of the interim DA. But sometimes there isn’t time, and there is a gap. In such instances, the question arises: do assistant DAs have the authority to prosecute criminal cases in the absence of an elected DA? Although there’s no case on point in North Carolina, the answer is likely yes. The state constitution contains several “hold over” provisions that allow public officials to continue in office until a successor is properly qualified and sworn in. See N.C. Const. art. IV, § 19 (judicial officials); N.C. Const. art. VI, § 10 (“all officers”). Assistant DAs take the same oath as the elected DA and have the duties assigned by the elected DA. G.S. 7A-63. Thus, they are public officers subject to those hold over provisions. The hold over provisions were written for the situation where an official’s term ends but there is a problem that prevents the official’s successor from taking office. That’s not exactly what’s happening with the assistant DAs, since they don’t really have terms [...]