New Durham DA may be ineligible

The governor's office says it isn't so, but a new law appears to rule out David Saacks for the job

DURHAM -- A law signed by Gov. Mike Easley last month appears to make David Saacks ineligible to serve as Durham County's district attorney.

But the governor's office says otherwise.

Saacks, a Wake County resident, was sworn in last week as the top prosecutor in a county where he is ineligible to vote.

At the time, a spokesman in the governor's office said Saacks' Wake County residency did not render him ineligible for appointment to the Durham office.

But a bill that Easley signed into law Aug. 19 says nobody can be appointed to fill a vacancy in any state or local elected office without being qualified to vote for that office.

"No person is eligible for appointment to fill a vacancy in any elective office, whether state or local, unless that person would have been qualified to vote as an elector for that office if an election were to be held on the date of appointment," the law states.

As a Wake County resident, Saacks cannot vote in Durham elections.

An Easley spokesman defended the appointment Tuesday, saying the governor has powers granted to him by the state constitution that trump the new legislation.

"The North Carolina Constitution created the office of district attorney, established eligibility requirements and gave to the governor the exclusive and sole authority to fill a vacancy," said Seth Effron, the governor's deputy press secretary. "The legislation enacted by the General Assembly is not applicable to the Durham district attorney appointment because it establishes requirements that exceed those set out in the ... constitution."

Saacks referred questions about his appointment to the governor's office.

"They're still confident in the appointment," he said.

Saacks, 43, was appointed last week to serve until the next scheduled election in November 2008. He succeeded the interim district attorney, Jim Hardin, who was appointed after the elected district attorney, Mike Nifong, was ordered disbarred in June for misconduct in the Duke lacrosse case.

Saacks said after his appointment that he preferred being in the courtroom as a prosecutor rather than tending to the administrative duties of a district attorney. But he said he was willing to serve until the election.

Lawyers and judges praised the governor's decision to tap Saacks, a prosecutor who in his 15 years in the Durham District Attorney's Office has built a reputation for fair-mindedness and hard work.

Saacks said he does not plan to run for the office nor does he plan to move to Durham County.

Hazy issues

Thad Beyle, a political scientist at UNC-Chapel Hill, said Tuesday that it was difficult to sort out the confusion about the law and that questions of power are hazy issues best decided by the courts.

"This is a real tricky situation," said Beyle, who specializes in state politics and government. "I would think they could make the argument that what trumps [the new legislation] is that the governor has these powers."

The question involves just a single sentence in a 21-page election reform bill. The sentence was added midway through the legislative process and was not discussed by the election law and campaign finance reform committee, said the committee chairwoman, Rep. Melanie Wade Goodwin, a Democrat from Hamlet.

Senate Majority Leader Tony Rand, a Democrat from Fayetteville, said he feared the governor's appointment could cause more problems for a Durham courthouse struggling to get out from under the cloud created by Nifong's misconduct in the lacrosse case.

"This just sets in place a mess," said Rand, a lawyer.

Lawyers dissatisfied with a court decision or verdict, he said, might try to appeal on the grounds that Saacks was not qualified to prosecute the case.

"I have been licensed to practice law for about 43 years," Rand said, "and a great deal of that time I spent practicing criminal law. I'll tell you, I used every legal argument or loophole that I could find -- and this would be one of them."