Helton v. Good
| Decision Date | 05 July 2002 |
| Docket Number | No. CIV. 1:01CV288.,CIV. 1:01CV288. |
| Citation | 208 F.Supp.2d 597 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Hicks William HELTON, d/b/a B & H Video, Plaintiff, v. Daniel J. GOOD, Sheriff of Rutherford County; and Jeff Hunt, Rutherford County District Attorney, Defendants. |
Luther Donald Starling, Jr., Daughtry & Starling, Smithfield, NC, for plaintiff.
Mark J. Pletzke, NC Dept. of Justice, Raleigh, NC, Scott D. MacLatchie, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, for defendants.
THIS MATTER is before this Court on motion of Defendant Jeff Hunt to dismiss and for summary judgment, on motion of Defendant Daniel J. Good for summary judgment, and on motion of Plaintiff Hicks William Helton to remand the case to state court. For the reasons stated below, Helton's motion to remand is denied; however, the Defendants' motions are likewise denied, and judgment will be granted for the Plaintiff.
The Plaintiff initially filed this action in the General Court of Justice, Superior Court Division of Rutherford County, North Carolina, on October 30, 2000, against Good; the State of North Carolina; the North Carolina Attorney General, Michael Easely; the Secretary of the North Carolina Department of Crime Control and Public Safety, David E. Kelley; and the Secretary of the Department of Revenue, Muriel K. Offerman, alleging that certain provisions of the North Carolina General Statutes dealing with the possession and use of a defined class of "video gaming machines" violate both the North Carolina and United States Constitutions. Count Two of the complaint, which sets forth a motion for a preliminary injunction to prohibit those laws from being enforced against Plaintiff or his property, has been previously denied by the state court. See Plaintiff's Notice of Motion and Motion to Remand, filed January 28, 2002, at 3.
The North Carolina General Assembly amended those portions of North Carolina's criminal code dealing with "slot machines and other devices" in July 2000 in response to new laws enacted in South Carolina outlawing video poker. N.C. Sess. Laws 2000-151; N.C. Gen.Stat. § 14-306 (). Session Law 2000-151 defines "video gaming machine" in several ways. N.C. Gen.Stat. § 14-306.1(c). It includes the definition of "slot machine or device" from § 14-306(a).1 The definition also includes a list of examples of "video gaming machines" and the general description, "[a] video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player."2 N.C. Gen.Stat. § 14-306.1(c)(8). The statute further provides that "[f]or purposes of this section, a video gaming machine includes those that are within the scope of the exclusion provided in G.S. 14-306(b)(2), but does not include those that are within the scope of the exclusion provided in G.S. 14-306(b)(1)".3
Under the terms of Session Law 2000-151, "[i]t shall be unlawful for any person to operate, allow to be operated, place into operation, or keep in that person's possession for the purpose of operation any video gaming machine as defined [in the section]." N.C. Gen.Stat. § 14-306.1(a). The amendment also mandates that "the owner of any video game which is regulated [by the statute] shall register the machine with the Sheriff of the county in which the machine is located ...." N.C. Gen.Stat. § 14-306.1(i). Furthermore, Session Law 2000-151 declares, "it is unlawful to warehouse any video gaming machine except in [circumstances involving manufacture of the machines in state.]." N.C. Gen.Stat. § 14-306.1(h). The term "warehouse" is not defined in relation to Session Law 2000-151. The law contains a "grandfather clause" for any machines which were (1) "[l]awfully in operation, and available for play, within this State on or before June 30, 2000," and (2) "[l]isted in this State by January 31, 2000 for ad valorem taxation for the 2000-2001 tax year." N.C. Gen.Stat. § 14-306.1(b) (entitled "Ban on New Machines"). Operation and possession of such "old" machines, if otherwise legal, is permitted. Not only does Session Law 2000-151 impose criminal penalties for the operation, possession with the intent to operate, or warehousing of new machines, it also makes applicable another section of the North Carolina General Statutes which provides,
All sheriffs and officers of police are hereby authorized and directed, on information made to them on oath that any ... video game machine prohibited to be used by ... [N.C. Gen.Stat. §] 14-306.1, is in the possession or use of any person within the limits of their jurisdiction, to destroy the same by every means in their power; and they shall call to their aid all the good citizens of the county, if necessary, to effect its destruction.
N.C. Gen.Stat. § 14-298; see also, N.C. Gen.Stat. § 14-308-309 ().
Plaintiff purchased 70 new machines sometime prior to the passage of Session Law 2000-151, but after January 31, 2000, brought them to Rutherford County and placed them into operation. As such, his machines were, "lawfully in operation and available for play, within the State before June 30," but not listed for ad valorom taxation by January 31. The parties agree that the machines Plaintiff purchased qualify as "video gaming machines" but do not fall within the grandfather clause. Both the Plaintiff and his property are in violation of N.C. Gen.Stat. § 14-306.1 and subject to prosecution or destruction, respectively.
After the original complaint was filed in state court, the State and the individual Defendants who serve on the Council of State moved for dismissal and/or summary judgment on the grounds that they were not proper parties to the action. The state court granted those motions, finding that Sheriff Good and Jeff Hunt were the proper Defendants, but denied Plaintiff's motion for a preliminary injunction as set forth in Count Two of the complaint. Thereafter, Plaintiff filed an amended complaint on September 13, 2001, naming Good and Hunt as party Defendants. On December 13, 2001, admittedly within 30 days of the date on which he was first served in this action, Hunt filed a notice of removal in which Good joined.
The Plaintiff argues that although Hunt's notice of removal was timely, Good's failure to file a notice of removal within 30 days of the date on which he was served with the original complaint waived his right to removal. See, 28 U.S.C. § 1446. Based on this waiver, Good cannot now consent to Hunt's removal and remand back to the state court is required. This argument raises a rather thorny issue which is still undecided in the Fourth Circuit. See, McKinney v. Bd. of Trustees of Mayland Comty. College, 955 F.2d 924, 926 n. 3 (4th Cir.1992) (); but see, Freeman v. Bechtel, 936 F.Supp. 320, 325-26 (M.D.N.C.1996) ().
This Court is not compelled to attempt to resolve this so called "laterserved defendant" issue. As the Defendants correctly observe, Plaintiff's motion to remand is untimely. Under the applicable statute, "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal ...." 28 U.S.C. § 1447(c). A motion to remand based on the untimeliness of removal is not based on a lack of subject matter jurisdiction. Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 392, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) (). Therefore, Plaintiff's motion to remand based on § 1447(c) is denied as untimely.
In addition to the substantive grounds for summary judgment raised by both Defendants and dealt with below, Hunt raises several immunity-related grounds as bases for dismissal of the complaint. These include sovereign immunity, the Eleventh Amendment to the United States Constitution, qualified immunity, and absolute prosecutorial immunity. These arguments miss the mark. At this time, Plaintiff seeks only a declaratory judgment that the statutes at issue are unconstitutional. First Amended Complaint; Fed. R. Civ. P 57. Because the case was removed to this Court based on federal question jurisdiction, the Declaratory Judgment Act applies. 28 U.S.C. § 2201. That statute provides,
[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
Id. As such, Hunt's argument that Plaintiff lacks standing is the only relevant basis raised for dismissal of this action.
The Declaratory Judgment Act has been consistently utilized to determine the constitutionality of criminal statutes. See, e.g., National Rifle Ass'n of America v. Magaw, 132 F.3d 272 (6th Cir.1997); Minnesota Citizens Concerned for Life v. Federal Election Comm'n, 113 F.3d 129 (8th Cir.1997); Pic-A-State, Pa., Inc. v. Reno, 76 F.3d 1294 (3rd Cir.1996); Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941). In...
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