Johnston v. State

• Decision Date: 18 December 2012
• Docket Number: No. COA12–45.,COA12–45.
• Parties: Richard M. JOHNSTON, Plaintiff v. The STATE of North Carolina, Defendant.
• Court: North Carolina Court of Appeals

735 S.E.2d 859

Richard M. JOHNSTON, Plaintiff

v.The STATE of North Carolina, Defendant.

No. COA12–45.

Court of Appeals of North Carolina.

Dec. 18, 2012.

Prior Version Recognized as Unconstitutional

West's N.C.G.S.A. § 14–415.1 Appeal by defendant from judgment entered 24 October 2011 by Judge Abraham Penn Jones in Caswell County Superior Court. Heard in the Court of Appeals 9 May 2012.

Dan L. Hardway Law Office by Dan L. Hardway for plaintiff-appellee.

Attorney General Roy Cooper by Special Deputy Attorney General John J. Aldridge, III for the State.

STEELMAN, Judge.

The North Carolina Felony Firearms Act (Act) does not violate plaintiff's procedural due process rights under the Constitution of the State of North Carolina or the Constitution of the United States. We remand plaintiff's federal substantive due process claim to the trial court for consideration of additional evidence and application of the appropriate standard of review. We remand plaintiff's State substantive due process claim to the trial court for additional evidence and findings.

I. Factual and Procedural History

On 17 August 2010, Richard Johnston (plaintiff) filed a complaint in the superior court of Caswell County seeking a declaratory judgment that the Act (Article 54A of Chapter 14 of the North Carolina General Statutes) was unconstitutional on its face and as applied to him. The complaint alleged that in 1978, plaintiff was convicted of the felony of conspiracy to commit larceny in Rockingham County ¹ and that in 1981, he was convicted of the felonies of arson, conspiracy to burn a building, and fraud in Caswell County. Plaintiff alleged that his probation and suspended sentences were concluded by 1983. The complaint also sought a declaration that his right to bear arms “was fully restored by operation of law on January 27, 1988, and that such restoration has remained in full force and effect from that time to the present and continuing thereafter[.]” Plaintiff also prayed for compensatory damages and attorney's fees.

On 14 September 2010, the State of North Carolina (State) filed answer and requested that all of plaintiff's claims for relief be denied. On 2 December 2010, the State filed a motion to dismiss or alternatively for summary judgment. On 20 May 2011, plaintiff filed a motion for summary judgment. On 5 July 2011, the State filed an amended motion to dismiss / summary judgment.

On 24 October 2011, the trial court filed a memorandum of decision and judgment. The trial court held that there were no material issues of fact, denied the State's motions to dismiss and for summary judgment, and granted plaintiff's motion for summary judgment, declaring that the Act was unconstitutional. The judgment further provided that the trial court retained jurisdiction to rule on plaintiff's claims for damages and attorney fees.

The State appeals. On 27 January 2012, plaintiff filed a motion to dismiss the State's appeal as being interlocutory.

II. Interlocutory Appeal

Plaintiff contends that the State's appeal is interlocutory and should be dismissed. We disagree.

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.

Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (internal citations omitted). Since the trial court has not ruled upon plaintiff's claims for compensatory damages and attorney fees, its memorandum of decision and judgment is not a final order and is interlocutory.

Ordinarily, “interlocutory orders are not immediately appealable.” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009). However, an interlocutory order “which affects a substantial right” is appealable. N.C. Gen.Stat. § 1–277 (2011). “The inquiry as to whether a substantial right is affected is two-part—the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [a party] if not corrected before appeal from final judgment [.]” Jenkins ex rel. Hajeh v. Hearn Vascular Surgery, P.A., –––N.C.App. ––––, ––––, 719 S.E.2d 151, 156 (2011) (alterations in original) (internal quotation marks omitted).

Admittedly the “substantial right” test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.

Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

In the instant case, the trial court declared that the Act was unconstitutional, in effect enjoined the State from prosecuting plaintiff for violations of the Act, and denied the State's motion to stay its order pending appeal.

A declaration by a trial court that a criminal statute of this State is unconstitutional is an extraordinary ruling.

The broad aim of the criminal law is, of course, to prevent harm to society—more specifically, to prevent injury to the health, safety, morals and welfare of the public. This it accomplishes by punishing those who have done harm, and by threatening with punishment those who would do harm, to others.

Wayne R. LaFave and Austin W. Scott, Jr., Handbook on Criminal Law, (West Publishing, St. Paul, Minn., 1972) § 2, p. 9.

We hold that the State has a substantial right to enforce the criminal laws of North Carolina and that this right is affected by a ruling declaring a statute, duly enacted by the General Assembly, to be unconstitutional. The State has also demonstrated that the deprivation of that substantial right will potentially work injury if not addressed before appeal from a final judgment. The trial court's judgment prohibits the State from prosecuting plaintiff for possession of a firearm. Further, it casts doubt upon every prosecution by the State throughout North Carolina under Article 54A of Chapter 14 of the General Statutes.

The trial court's memorandum of decision and judgment of 24 October 2011 is an appealable interlocutory order. Plaintiff's motion to dismiss the State's appeal is denied.

III. Subject Matter Jurisdiction

The State contends that the trial court lacked subject matter jurisdiction to hear this case. We disagree.

The State's contention is that plaintiff's complaint is beyond the scope of actions authorized as declaratory judgments pursuant to Article 26 of Chapter 1 of the North Carolina General Statutes. However, this is not the first case in which a convicted felon has sought a declaration from the courts that he has a right to possess firearms. In the cases of Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009), and Baysden v. State, ––– N.C.App. ––––, ––––, 718 S.E.2d 699 (2011), the civil complaints filed by the plaintiffs sought declaratory relief and injunctive relief, just as the complaint in the instant case. Both of these cases proceeded in the identical posture as the instant case.

This argument is without merit.

IV. North Carolina Felony Firearms Act

In 1971, the General Assembly enacted the Felony Firearms Act, N.C. Gen.Stat. § 14–415.1, which made unlawful the possession of a firearm by any person previously convicted of a crime punishable by imprisonment of more than two years. N.C. Gen.Stat. § 14–415.2 set forth an exemption for felons whose civil rights had been restored. 1971 N.C. Sess. Laws ch. 954, § 2.

In 1975, the General Assembly repealed N.C. Gen.Stat. § 14–415.2 and amended N.C. Gen.Stat. § 14–415.1 to ban the possession of firearms by persons convicted of certain crimes for five years after the date of “such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such convictions, whichever is later.” 1975 N.C. Sess. Laws ch. 870, § 1.

State v. Johnson, 169 N.C.App. 301, 303, 610 S.E.2d 739, 741 (2005). In 1975, the General Assembly amended the Act to allow an exception for felons to possess firearms “within his own home or on his lawful place of business.” 1975 N.C. Sess. Laws ch. 870, § 2. “In 1995, the General Assembly amended N.C. Gen.Stat. § 14–415.1 to prohibit possession of certain firearms by all persons convicted of any felony.” Johnson, 169 N.C.App. at 303, 610 S.E.2d at 741. “The 1995 amendment did not change the previous provision in N.C.G.S. § 14–415.1 stating that ‘nothing [therein] would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business.’ ” Britt, 363 N.C. at 548, 681 S.E.2d at 321 (alteration in original).

In 2004, the General Assembly amended the Act “to extend the prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon'sown home and place of business.” Britt, 363 N.C. at 548, 681 S.E.2d at 321. In 2006, the General Assembly amended the Act to exclude antique firearms. 2006 N.C. Sess. Laws ch. 259 § 7(b). Our Supreme Court held the 2004 version unconstitutional as applied to Mr. Britt, under the North Carolina Constitution. Britt, 363 N.C. at 550, 681 S.E.2d at 323.

In 2010, the General Assembly amended the Act to provide that a person convicted of a single nonviolent felony and who has had his or her citizenship rights restored may petition the district court to restore his or her firearms rights. 2010 N.C. Sess. Laws, ch. 108, § 1. This amendment requires that the petitioner have had his or her citizenship rights restored for at least 20 years in order to file a petition. Id. This amendment became effective on 1 February 2011. 2010 N.C. Sess. Laws ch. 108 § 7.

In 2011, the General Assembly amended N.C. Gen.Stat. § 14–415.1 to exclude persons who, pursuant to the law of...