Lloyd v. Babb, 33

Citation251 S.E.2d 843, 296 N.C. 416
Case DateFebruary 05, 1979
CourtUnited States State Supreme Court of North Carolina

Josey & McCoy by C. Kitchin Josey and Robert A. Hanudel, Roanoke Rapids, Graham & Cheshire by Lucius M. Cheshire, Hillsborough, for plaintiffs-appellees.

Coleman, Bernholz & Dickerson by Alonzo B. Coleman, Jr., and Geoffrey E. Gledhill, Hillsborough, for defendants-appellants.

Chambers, Stein, Ferguson & Becton by Adam Stein, Chapel Hill, for defendant-appellant Kessler and applicants-intervenors.

EXUM, Justice.

This is an action by registered voters in Orange County for an injunction, temporary and permanent, and a writ of mandamus against the Orange County Board of Elections (hereinafter Orange County Board) and its election officials. Plaintiffs allege, in essence, that defendants have systematically violated and are continuing to violate the state's election laws by registering as voters students at the University of North Carolina at Chapel Hill (hereinafter the University) who are not actually residents of Orange County. Defendants' appeal from an order, after hearing, granting a preliminary injunction raises these questions: (1) Whether the trial court lacked original jurisdiction inasmuch as plaintiffs are using this procedure as a substitute for what should have been an appeal from an earlier administrative decision of the State Board of Elections (hereinafter State Board). (2) Whether the complaint should have been dismissed for failure to state a claim on the ground that plaintiffs have effective legal and administrative remedies which they have not exhausted or alleged that they have exhausted. (3) Whether the trial court's findings of fact upon which the preliminary injunction was granted are sufficiently supported by the evidence. (4) Whether and to what extent we should continue to adhere to this Court's decision in Hall v. Board of Elections, 280 N.C. 600, 187 S.E.2d 52 (1972). We conclude: The trial court did have original jurisdiction to proceed. The complaint states a claim upon which relief can be granted. There is not sufficient evidence in the record to support the preliminary injunction and it is hereby dissolved. Insofar as Hall generally sets out procedures to follow in registering student voters, we continue to adhere to it. We hold, however, that Hall should not be interpreted to give dispositive weight to the fact that as a student one intends to remain in the locality of his school only until graduation in determining his entitlement to vote in that locality.

This case arises out of a dispute of several years' duration as to who should properly be included on the voting rolls of Orange County. Plaintiffs, registered voters there, are members of the Orange Committee, an organization that has been particularly active in this dispute. An attempt to resolve this dispute administratively was begun in late 1976 or early 1977 with the submission of petitions to the State Board. At least seven of the ten plaintiffs in this action joined in these petitions, which expressed concern that there were large numbers of non-residents voting in Orange County and asked the State Board for relief. 1

Responding to these petitions and, apparently, to requests through other channels, the State Board met on 30 March 1977. The purpose of this meeting, called upon the written application of two members of the State Board pursuant to G.S. 163-20(a), was to determine "(w)hether or not the elections officials in Orange County have complied with statutory provisions and guidelines issued by the State Board of Elections relative to the registration of voters in Orange County." In the course of this meeting, the State Board heard "remarks" from twelve persons. The substance of these remarks is not contained in the State Board's minutes. After deliberation, the State Board adopted the following motion:

"The State Board of Elections, acting on general authority contained in G.S. 163-20, having met in Raleigh on March 30, 1977 to make inquiry into the registration procedures administered in Orange County, and having permitted interested parties to impart pertinent information to the Board, the State Board of Elections, after consideration of all the allegations contained in the documents submitted by the Petitioners and after consideration of all information provided by the Orange County Board of Elections, this Board concludes that no further proceedings on this matter are deemed appropriate."

No further action was taken before the State Board or in respect to its disposition.

On 16 February 1978 plaintiffs filed complaint in this case in Wake Superior Court. They joined as defendants members of the State Board 2 and members and officials of the Orange County Board. In alternative claims for relief, they allege (1) a failure to election officials to perform their statutory duties by failing to determine whether persons were residents of Orange County before allowing them to register to vote there, and (2) abuse by these officials of whatever discretion the election statutes permit by their failure even to inquire whether persons were residents of Orange County before allowing them to register to vote there. Plaintiffs ask for relief in various forms including both temporary and permanent injunctive relief and writs of mandamus. In essence they seek by this lawsuit three things: (1) purging of the voting rolls of Orange County and re-registration of all voters; (2) an order requiring that all registrars make full inquiry concerning the residence of any student seeking to register; and (3) an order requiring that certain specific questions be asked of each student seeking to register.

On 16 February 1978 Judge Bailey ordered defendants to appear and show cause why temporary injunctive relief should not be granted. At the hearing on 6 March 1978 he denied a motion to intervene by Steven J. Rose, Paul Howard Melbostad, Jonathan Drew Sasser, Gerald A. Cohen, James Michael Lane, Braxton Foushee, Ralph V. Aubrey, Jr., and Douglas Muir Sharer all either students registered to vote or holders of or candidates for public office in Orange County. He also denied defendants' motions to dismiss for lack of original jurisdiction and for failure of plaintiffs to state a claim upon which relief could be granted.

On 7 March 1978 Judge Bailey, after hearing evidence, granted preliminary relief to plaintiffs. He found, among other things, that large numbers of students were registered to vote in Orange County who were not bona fide residents of the county and that the Orange County Board had failed to require students to carry the burden of proving they were bona fide residents of Orange County when they applied to register. On the basis of these and other findings Judge Bailey (1) ordered the Orange County Board to purge from voter registrations all persons who were enrolled at the University at Chapel Hill and who upon their most recent enrollment listed their home addresses as being outside Orange County; (2) ordered the Orange County Board to presume that any student applying to register was domiciled where his parents resided and to require that this presumption be rebutted by evidence in addition to the applicant's own statement of intention to reside permanently in Orange County; and (3) required the use by Orange County...

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