Malloy v. Cooper, 595PA01.

• Decision Date: 28 June 2002
• Docket Number: No. 595PA01.,595PA01.
• Citation: 565 S.E.2d 76
• Court: North Carolina Supreme Court
• Parties: John MALLOY, d/b/a the Dogwood Gun Club v. Roy COOPER, Attorney General for the State of North Carolina; David R. Waters, District Attorney for the 9th Prosecutorial District; David S. Smith, Sheriff of Granville County; State of North Carolina.

565 S.E.2d 76

John MALLOY, d/b/a the Dogwood Gun Club v. Roy COOPER, Attorney General for the State of North Carolina; David R. Waters, District Attorney for the 9th Prosecutorial District; David S. Smith, Sheriff of Granville County; State of North Carolina.

No. 595PA01.

Supreme Court of North Carolina.

June 28, 2002.

Tharrington Smith, L.L.P. by Roger W. Smith, Raleigh; and Greenberg Traurig, L.L.P. by C. Allen Foster, Washington, DC, for plaintiff-appellant.

Roy Cooper, Attorney General by John J. Aldridge, III, Special Deputy Attorney General, for defendant-appellees Roy Cooper, Attorney General for the State of North Carolina; David R. Waters, District Attorney for the 9th Prosecutorial District; and the State of North Carolina.

Parker, Poe, Adams & Bernstein, L.L.P. by Cynthia L. Wittmer, Raleigh, on behalf of the North Carolina Network for Animals; Justice for Animals; the Fund for Animals, Inc.; and the Humane Society of the United States, amici curiae.

PARKER, Justice.

On 3 March 1999 Plaintiff instituted this action for declaratory judgment against defendants Roy Cooper¹, Attorney General for the State of North Carolina; David R. Waters, District Attorney for the Ninth Prosecutorial District; David S. Smith, Sheriff of Granville County; and the State of North Carolina. The issue before this Court is whether the Court of Appeals erred in holding that the trial court lacked jurisdiction and should have dismissed plaintiff's declaratory judgment action under North Carolina Rule of Civil Procedure 12(b)(1). The uncontroverted facts are as follows.

Plaintiff is a resident of Granville County, North Carolina, and owns an unincorporated business operating under the name "Dogwood Gun Club." Twice a year plaintiff sponsors a pigeon shoot, known as "The Dogwood Invitational," on his private land in Granville County. Plaintiff has sponsored, organized, and operated the pigeon shoots since 1987. Contestants participate by invitation only, and each contestant pays $275.00 per day to participate. According to plaintiff's response to interrogatories, the pigeon shoot is conducted as follows: "Each contestant faces a ring. Inside the ring are a number of boxes which are opened on cue. An individual ferel [sic] pigeon flies from a particular box. The feral pigeon serves as a target at which the contestant shoots." The last two pigeon shoots conducted before institution of this action utilized approximately 40,000 pigeons each. Pigeons that are killed by the contestants are buried, whereas pigeons that are merely injured are "dispatched promptly" and buried. Plaintiff claims to have spent $500,000 in capital improvements to his land to further the pigeon shoots and further claims that the pigeon shoots provide approximately fifty percent of his net income.

In response to interrogatories, plaintiff answered that the District Attorney for the Ninth Prosecutorial District, which covers Granville County, "notified the Plaintiff, through counsel, that he considers the conduct at the Dogwood Invitational to be in violation of amended N.C.G.S. § 14-360 [entitled "Cruelty to animals; construction of section"] and that if given the opportunity, he will prosecute the Plaintiff." Thus, the District Attorney appears to have determined that the 1998 amendments to the statute, see Act of Oct. 30, 1998, ch. 212, sec. 17.16(c), 1997 N.C. Sess. Laws 937, 1192, brought plaintiff's pigeon shoots within the purview of the statute. After receiving this threat of prosecution, plaintiff filed the complaint for declaratory judgment praying the trial court to declare that plaintiff's pigeon shoots do not violate the statute; that the statute is unconstitutional as applied to plaintiff; that the statute is unconstitutionally vague; and that defendants be enjoined from enforcing the statute against plaintiff.

On 9 May 2000 the trial court denied defendants' motion to dismiss pursuant to North Carolina Rules of Civil Procedure 12(b)(1) and 12(b)(6), and for summary judgment pursuant to Rule 56 as to the misdemeanor portion of N.C.G.S. § 14-360. Further, the trial court granted summary judgment in favor of plaintiff as to the misdemeanor portion of N.C.G.S. § 14-360, decreeing that portion "constitutionally deficient and void." Accordingly, the trial court permanently enjoined defendants from enforcing that portion of the statute against plaintiff.

A unanimous panel of the Court of Appeals reversed the trial court's ruling. Malloy v. Easley, 146 N.C.App. 66, 74, 551 S.E.2d 911, 916 (2001). The Court of Appeals held that the action was beyond the scope of the Declaratory Judgment Act, N.C.G.S. ch. 1, art. 26 (2001), and, therefore, should have been dismissed pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure. Malloy, 146 N.C.App. at 74, 551 S.E.2d at 916. In reaching its holding, the Court of Appeals determined that the issues raised "necessarily involve questions of fact as well as questions of law," id. at 72, 551 S.E.2d at 915, and that plaintiff failed to establish that prosecution would result in loss of fundamental human rights or property interests, id. at 73, 551 S.E.2d at 915-16. This Court allowed plaintiff's petition for writ of certiorari to review the decision of the Court of Appeals.

The sole issue before this Court is whether jurisdiction exists to grant a declaratory judgment regarding the constitutionality of the statute in question. Whether a court has jurisdiction is a question of law determinable by this Court on appeal. See, e.g., Union Carbide Corp. v. Davis, 253 N.C. 324, 327, 116 S.E.2d 792, 794 (1960)

; see also Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). The Declaratory Judgment Act states that courts "shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." N.C.G.S. § 1-253. Accordingly, any person "whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder." N.C.G.S. § 1-254.

However, "`the apparent broad terms of the [Declaratory Judgment Act] do not confer upon the court unlimited jurisdiction of a merely advisory nature to construe and declare the law.'" State ex rel. Edmisten v. Tucker, 312 N.C. 326, 338, 323 S.E.2d 294, 303 (1984) (quoting Town of Tryon v. Duke Power Co., 222 N.C. 200, 203, 22 S.E.2d 450, 452 (1942)). Thus, "jurisdiction under the Declaratory Judgment Act may be invoked only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute." Tucker, 312 N.C. at 338, 323 S.E.2d at 303.

Persons directly and adversely affected by the decision may be expected to analyze and bring to the attention of the court all facets of a legal problem. Clear and sound judicial decisions may be expected when specific legal problems are tested by fire in the crucible of actual controversy. So-called friendly suits, where, regardless of form, all parties seek the same result, are "quicksands of the law."

City of Greensboro v. Wall, 247 N.C. 516, 520, 101 S.E.2d 413, 416-17 (1958).

The case before us presents an actual existing controversy between parties with adverse interests. The uncontroverted evidence shows that plaintiff conducted the pigeon shoots in a substantially identical manner twice a year for twelve years before filing this action. No question is in dispute about the birds used—how they are gathered, how the actual shooting is conducted, how the birds are killed, and how the birds are disposed of. Nor is any other material fact in dispute. Given that the uncontroverted evidence shows that plaintiff has conducted the pigeon shoots in the same manner for such an extended period of time, and with such regularity and frequency, this controversy rises above mere speculation that he will conduct the pigeon shoots in the same manner in the future. Thus, this case presents a concrete and real controversy, as opposed to mere speculation as to future conduct; therefore, plaintiff is not seeking an advisory opinion from this Court.

Likewise, the record is clear that the parties have adverse interests. Plaintiff, given the amount of money he has invested in the pigeon shoots and the amount of income he derives therefrom, is situated to advocate strongly his position that the statute is unconstitutional. Likewise, defendants, who represent the State and are charged with enforcing its laws, are situated to advocate strongly that the statute is constitutional. Thus, the basic requirement of a real controversy between parties with adverse interests is satisfied in this case.

However, even when an actual controversy exists between adverse parties, declaratory judgment is not generally available to challenge the constitutionality of a criminal statute. See, e.g., Tucker, 312 N.C. at 349,

323 S.E.2d at 309 ("It is widely held that a declaratory judgment is not available to restrain enforcement of a criminal prosecution," especially where a criminal action is already pending.); Jernigan v. State, 279 N.C. 556, 560, 184 S.E.2d 259, 263 (1971) ("A declaratory judgment is a civil remedy which may not be resorted to to try ordinary matters of guilt or innocence."); Chadwick v. Salter, 254 N.C. 389, 394, 119 S.E.2d 158, 162 (1961) ("Ordinarily, the constitutionality of a statute ... will not be determined in an action to enjoin its enforcement."). Nevertheless, a declaratory judgment action to determine the constitutionality of a criminal statute prior to prosecution is not completely barred. For example, in Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49 (1938), the plaintiff, a manufacturer and distributer of amusement machines, was threatened with prosecution under a statute making possession of slot machines illegal and...