Cannon v. Durham County Bd. of Elections

• Decision Date: 06 March 1997
• Docket Number: No. 5:96-CV-115-BR(3).,5:96-CV-115-BR(3).
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Hazard CANNON, Norman Phillips, and Dan Sizemore, Plaintiffs, v. DURHAM COUNTY BOARD OF ELECTIONS, an official agency of the State of North Carolina; and the Durham County Board of Commissioners, Defendants. and Durham Committee on the Affairs of Black People, et al., Defendant-Intervenors.

959 F.Supp. 289

Hazard CANNON, Norman Phillips, and Dan Sizemore, Plaintiffs, v. DURHAM COUNTY BOARD OF ELECTIONS, an official agency of the State of North Carolina; and the Durham County Board of Commissioners, Defendants and Durham Committee on the Affairs of Black People, et al., Defendant-Intervenors.

No. 5:96-CV-115-BR(3).

United States District Court, E.D. North Carolina.

March 6, 1997.

COPYRIGHT MATERIAL OMITTED

John C. Randall, Randall, Jervis & Hill, Durham, NC, for Plaintiff.

Thomas A. Farr, Maupin, Taylor, Ellis & Adams, Raleigh, NC, S.C. Kitchen, Durham, NC, Lowell L. Siler, Durham, NC, for Durham County Bd. of Elections, Durham County Bd. of Com'rs.

Irving L. Joyner, Durham, NC, for Durham Committee on the Affairs of Black People, Durham Branch of NAACP, Beverly Jones, Dr. William Bell, Mozell Robinson, Deborah Giles, John Jolly, Deborah Jolly, Harris C. Johnson, Sr., Ellen Mays, Clarence R. Jones.

Adam Stein, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, Chapel Hill, NC, for Jennifer McGovern, Steve Unruhe, Dabney Hopkins, Patricia N. Page, Page, McCullough, David Austin, Leigh Bordley, Margaret McReary.

ORDER

BRITT, District Judge.

This matter is before the court on motions for summary judgment by defendants and defendant-intervenors.¹

I. Background

As recited in the preliminary injunction order dated 1 April 1996, the relevant facts are as follows.

Pursuant to North Carolina General Statutes section 115C-68.1, the Board of Commissioners for the County of Durham prepared, adopted, and submitted to the North Carolina State Board of Education a plan for the merger of the Durham County public schools and the City of Durham public schools. (Compl.¶ 10.) The plan was approved by the State Board. (Id.) Pursuant to the plan, the two school systems were merged into a new system called the Durham Public School System. (Id.) Under the merger plan, the school board for the new system is composed of seven members. (Id.) To reach this figure, Durham County is divided into four individual single-member districts each electing a school board representative. The four individual districts are then combined to form two larger districts each also electing a board member. The final member is elected at-large; thus, creating a system referred to as a 4-2-1 electoral structure. Before the plan was adopted, North Carolina General Statutes section 115C-35 mandated that the school board be composed of five members elected at-large. N.C. Gen. Stat. § 115C-35 (1995). The new plan creates three "majority-minority districts."² (Cf. Compl. ¶ 15.)

Some of the plaintiffs previously filed an action challenging the merger plan in state court. (Id. ¶ 10.) After an initial decision favorable to plaintiffs and while an appeal was pending, the North Carolina General Assembly passed a "curative" statute codified at North Carolina General Statutes section 115C-68.3. (Id.) After section 115C-68.3 was enacted but before rendering a decision on the merits, the North Carolina Supreme Court remanded to the trial court for consideration of the effect of the new statute on the case. (Id.) Defendants then filed a motion to dismiss the case for mootness. (Id.) In their combined reply, verified affidavit, and motion for summary judgment, plaintiffs raised, for the first time, the argument that the school board election plan was discriminatory to white voters and that it violated the United States Constitution. (Id.) The trial court granted defendants' motion and dismissed plaintiffs' case. (Id.) The decision was reversed by the North Carolina Court of Appeals but ultimately affirmed by the North Carolina Supreme Court. (Id.) As to plaintiff's discrimination claim, the North Carolina Supreme Court stated: "[W]e conclude that the issue is not properly before this Court. Plaintiffs never filed pleadings in this matter alleging racial discrimination and thus did not properly present the issue for determination by the trial court." Cannon v. North Carolina State Bd. of Educ., 342 N.C. 399, 464 S.E.2d 43, 43 (1995).

Plaintiffs then brought suit in this court challenging, on constitutional grounds, the new method of electing school board members. Specifically, plaintiffs allege violations of the Privileges and Immunities Clause of Article IV, Sec. 2, the Fifth, Fourteenth, and Fifteenth Amendments, and 42 U.S.C. § 1973. The court will review each claim in turn.

II. Standard

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The Fourth Circuit has articulated the summary judgment standard as follows:

A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2514. The plaintiff is entitled to have the credibility of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The party seeking summary judgment has the initial burden to show absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The opposing party must demonstrate that a triable issue of fact exists; he may not rest on mere allegations or denials. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A mere scintilla of evidence supporting the case is insufficient. Id.

Patterson v. McLean Credit Union, 39 F.3d 515, 518 (4th Cir.1994) (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994), 513 U.S. 814, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994)).

III. Discussion

A. Res Judicata

Defendants first argue that plaintiffs' suit is barred by the doctrine of res judicata. Under the Full Faith and Credit statute, 28 U.S.C. § 1738 (1994), this court is obligated to look to the law of North Carolina to ascertain whether the prior state court judgment should be afforded preclusive effect in this federal action. Davenport v. North Carolina Dep't. of Trans., 3 F.3d 89, 92 (4th Cir.1993).

Although the issues raised in the initial state court litigation differ from the legal theories presented in this case, defendants argue that res judicata operates to bar all related claims and thus plaintiffs are not entitled to a separate suit merely by shifting legal theories. The court is persuaded that this rule is established law in North Carolina. See Holly Farm Foods, Inc. v. Kuykendall, 114 N.C.App. 412, 442 S.E.2d 94, 97 (1994) ("Res judicata not only bars the relitigation of matters determined in the prior proceeding but also all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.") (internal quotations omitted); Rodgers Builders, Inc. v. McQueen, 76 N.C.App. 16, 331 S.E.2d 726, 735 (1985) (holding that a party cannot avoid res judicata by shifting legal theories or asserting new grounds for relief from the same event), rev. denied, 315 N.C. 590, 341 S.E.2d 29 (1986).

Notwithstanding, res judicata does not preclude this suit because defendants cannot satisfy all of the elements of the res judicata test. For res judicata to attach, there must have been a final judgment on the merits, in a prior action involving the same claim, between the same parties or those in privity with them. Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157, 161 (1993). While both parties concentrate their arguments on the issues of whether the claim is the same and whether privity exists, the court finds that res judicata is inapplicable because there was not a final judgment on the merits in the state court action. Reviewing the litany of state court proceedings, it appears that, although the superior court initially issued a ruling on the merits, the North Carolina Supreme Court subsequently remanded for further consideration in light of the curative statute enacted by the Legislature. On remand, plaintiffs' claims were dismissed as moot, a ruling ultimately affirmed by the supreme court.

It is important to note that the supreme court did not merely dismiss the appeal as moot. If so, operating under the Munsingwear doctrine,³ the dismissal of the appeal would likely not have upset the original ruling unless the appellate court expressly vacated the lower court's ruling in the process. In that instance, defendants would likely be able to rely on the initial superior court ruling to satisfy the judgment on the merits requirement.

However, in this case, the supreme court did not merely moot the appeal but remanded the entire claim to the superior court to reconsider in light of intervening developments. This action effectively vacated the superior court's initial opinion. After the superior court then dismissed the claim as moot and the supreme court affirmed, the prior opinions were no longer enforceable or viable.

Therefore, the question becomes whether a dismissal for mootness qualifies as a final judgment on the merits. Unfortunately, no North Carolina court has addressed this issue. Thus, because this issue presents a case of first impression, the court will attempt to best predict how the North Carolina Supreme Court would resolve the issue. See Roe v. Doe, 28 F.3d 404, 406 (4th Cir.1994); Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1195 (4th Cir.1982). Borrowing from other jurisdictions, it appears well settled that a dismissal for mootness does not constitute a decision on the merits. Ferguson v. Commercial Bank, 578 So.2d...