Comer v. Ammons

• Decision Date: 16 November 1999
• Docket Number: No. COA98-1441.,COA98-1441.
• Citation: 522 S.E.2d 77,135 NC App. 531
• Court: North Carolina Court of Appeals
• Parties: William T. COMER, Plaintiff-Appellant, v. Judge James F. AMMONS, Jr., Judge Robert J. Stiehl, III, and the State Board of Elections, Defendants-Appellees.

522 S.E.2d 77

135 NC App. 531

William T. COMER, Plaintiff-Appellant, v. Judge James F. AMMONS, Jr., Judge Robert J. Stiehl, III, and the State Board of Elections, Defendants-Appellees.

No. COA98-1441.

Court of Appeals of North Carolina.

November 16, 1999.

Winfrey & Leslie by Ronald E. Winfrey, and Walen & McEniry by James M. Walen, Fayetteville, for plaintiff.

Michael F. Easley, Attorney General, by Susan K. Nichols, Special Deputy Attorney General for defendant State Board of Elections.

Poyner & Spruill L.L.P., by David W. Long, Raleigh, for defendant Judge Stiehl.

Armstrong & Armstrong P.C., by L. Lamar Armstrong, Jr., Smithfield, for defendant Judge Ammons.

WYNN, Judge.

In 1998, our General Statutes allowed a nominee for a superior court judgeship to run for another elected office during the same election. The plaintiff argues that the laws that allowed the defendant judges in this case to simultaneously run for a superior court judgeship and a district court judgeship were unconstitutional. We uphold the constitutionality of those laws and therefore affirm the trial court's grant of summary judgment in favor of the defendant judges.

I. Statutory History

In 1996, the North Carolina General Assembly amended the State's election laws to allow a candidate for a superior court judgeship to run for more than one office on the same election day, beginning in 1998. Candidates could also run for any two offices, so long as the filing periods for the offices were not the same.

Although these sections have since been amended to prevent dual candidacies, the issues in the case before this Court are based on the sections as they were in 1998. Therefore, all discussions and references, unless otherwise noted, will be to the statutes as they were in 1998.

The 1998 version of N.C. Gen.Stat. § 163-323 (Supp.1997) read, in pertinent part:

(e) Candidacy for More Than One Office Prohibited. No person may file a notice of candidacy for more than one office or group of offices described in subsection (b) of this section for any one election. If a person has filed a notice of candidacy with a board of elections under this section for one office or group of offices, then a notice of candidacy may not later be filed for any other office or group of offices under this section when the election is on the same date unless the notice of candidacy for the first office is withdrawn under subsection (c) of this section.

The referenced subsections (b) and (c) included only judgeships of the superior court.

The 1998 version of N.C. Gen.Stat. § 163-106 (Supp.1998; 1995 N.C. Sess. Laws (1996 Second Extra Session) Chap. 9, §§ 8 and 24) read, in pertinent part:

(h) No person may file a notice of candidacy for more than one office described in subsection (c) of this section for any one election. If a person has filed a notice of candidacy with a board of elections under this section for one office, then a notice of candidacy may not later be filed for any other office under this section when the election is on the same date unless the notice of candidacy for the first office is withdrawn under subsection (e) of this section; provided that this subsection shall not apply unless the deadline for filing notices of candidacy for both offices is the same.

The referenced subsections (c) and (e) applied to various state and federal elective offices, but did not include the office of superior court judge.

Taken together, §§ 163-323 and 163-106 created a "loophole" which allowed a candidate to run for a superior court seat and another office on the same election day, regardless of the filing periods. Other dual candidacies were allowed for any two offices, provided that the filing periods for nominations were not the same.

II. Facts and Procedural History

Defendants Ammons and Stiehl were both incumbent district court judges for the 12th Judicial District for Cumberland County. They filed for reelection during the filing period of the first Monday in January to the first Monday in February 1998. Both ran unopposed for their district court seats in the general election.

On 28 February 1998, Judge Coy E. Brewer, Jr. resigned from his seat on the 12th District's Superior Court, leaving a vacancy. The State Board of Elections opened a one week filing period in March 1998 for this seat and both Judge Ammons and Judge Stiehl filed for the seat. Neither withdrew as candidates for the district court.¹ A total of six candidates filed for the superior court election.

Judge Stiehl was reelected without opposition to his district court seat on 3 November 1998. Judge Ammons won both the district court and the superior court elections, and has since been sworn in as a superior court judge. The vacancy he left in the district court has been filled by Judge Donald Clark, Jr., who was appointed by Governor James B. Hunt, Jr.

The plaintiff, William T. Comer, was a registered voter living in Cumberland County. He was not a candidate for any office in the 1998 elections. On 12 May 1998—after Judges Ammons and Stiehl filed their notices of candidacy but before the general election—Mr. Comer filed an action for declaratory judgment, urging the court to find N.C. Gen.Stat. §§ 163-106 and 163-323 unconstitutional under Article I, section 19 and Article VI, section 9 of the North Carolina Constitution. However, upon considering a forecast of the evidence to be presented at trial, the trial court granted summary judgment for the defendant judges. Following our denial of his request for a temporary stay and supersedeas, Mr. Comer perfected his appeal to this Court.

III. Motion to Dismiss

A. Mootness Argument

Judges Ammons and Stiehl along with the State Board of Elections initially move this Court to dismiss Mr. Comer's appeal as moot. We deny that motion.

An appeal which presents a moot question should be dismissed. See Dickerson Carolina, Inc. v. Harrelson, 114 N.C.App. 693, 443 S.E.2d 127,

review denied, 337 N.C. 691, 448 S.E.2d 520 (1994). If the issues giving rise to the action become moot at any time during the proceedings, the court should dismiss the action. See In Re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978),

cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979). This is true even if the action is for a declaratory judgment. See Pearson v. Martin, 319 N.C. 449, 355 S.E.2d 496,

reh'g denied,

319 N.C. 678, 356 S.E.2d 789 (1987).

In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979), the United States Supreme Court set forth a two-pronged test which renders a case moot when (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.

In the case under consideration, Mr. Comer challenges the constitutionality of N.C. Gen.Stat. §§ 163-106 and 163-323 as they were in 1998. Those statutes have since been amended and therefore the alleged violation of the North Carolina Constitution has ceased. Moreover, the statutes have been rewritten to disallow superior court candidates from running for other offices during the same election, so this fact scenario will not be repeated. Since the allegedly unconstitutional statute has been repealed and no one else will be able to hold a dual candidacy, part of the Davis test has been satisfied.

However, part of the Davis test has not been met. Significantly, if the statutes in question were in violation of the North Carolina Constitution, then Judges Ammons and Stiehl are holding office unlawfully. If that is the case, then this violation has not ceased and there has been no eradication of the effects of the alleged violation. Thus, since the Davis test is not fully satisfied, we will address the merits of the case.

B. Quo Warranto Argument

Judges Ammons and Stiehl along with the State Board of Education also argue that the case at hand should not be heard because the removal of an elected official must be done quo warranto (or more accurately, by its modern statutory equivalent) and therefore a request for declaratory judgment is no longer the proper means of redressing the problem. We disagree and find that a justiciable question remains for this Court to decide.

N.C. Gen.Stat. § 1-514, et. al. (1996), which codifies the common law doctrine of quo warranto, reads in relevant part:

1-515. Action by Attorney General.

An action may be brought by the Attorney General in the name of the State, upon his own information or upon the complaint of a private party, against the party offending, in the following cases:

(1) When a person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State....

Mr. Comer argues that § 1-515 is not appropriate to this action because he is challenging the constitutionality of an election statute, not disputing the election or its results. We agree.

In Newsome v. N.C. State Bd. of Elections, 105 N.C.App. 499, 415 S.E.2d 201 (1992), we addressed a similar situation. In that case, the plaintiffs filed an action to enjoin a special election of a mayor and Board of Aldermen. The injunction was denied, the election was held, and the new mayor and board were seated. On appeal, the appellees argued that the case was moot because the elected officials had been seated, and therefore a new action must be brought under § 1-515. This Court rejected that argument on the grounds that the plaintiffs were not challenging the election or its results, but were instead challenging the Board of Election's authority to call the election.

Similarly, Mr. Comer is not directly challenging the election or its results; rather, the main thrust of his argument is that the election statutes were unconstitutional. Although Mr. Comer cannot avoid arguing that the...