McFadyen v. New Hanover Cnty.

• Decision Date: 18 August 2020
• Docket Number: No. COA18-840,COA18-840
• Citation: 848 S.E.2d 217
• Parties: Marvin N. MCFADYEN, Plaintiff, v. NEW HANOVER COUNTY; New Hanover County Board of Elections; North Carolina State Board of Elections; Joshua B. Howard, in his official capacity; Rhonda K. Amoroso, in her official capacity; Joshua D. Malcolm, in his official capacity; Paul J. Foley, in his official capacity; and Maja Kricker, in her official capacity, Defendants.
• Court: North Carolina Court of Appeals

848 S.E.2d 217

Marvin N. MCFADYEN, Plaintiff,

v.NEW HANOVER COUNTY; New Hanover County Board of Elections; North Carolina State Board of Elections; Joshua B. Howard, in his official capacity; Rhonda K. Amoroso, in her official capacity; Joshua D. Malcolm, in his official capacity; Paul J. Foley, in his official capacity; and Maja Kricker, in her official capacity, Defendants.

No. COA18-840

Court of Appeals of North Carolina.

Filed: August 18, 2020

Shipman & Wright, L.L.P., Wilmington, by W. Cory Reiss, for plaintiff-appellant.

Sumrell Sugg, P.A., New Bern, by Scott C. Hart, for defendant-appellee New Hanover County.

Knott and Boyle, PLLC, by W. Ellis Boyle, for defendant-appellee New Hanover County Board of Elections.

Attorney General Joshua H. Stein, by Deputy Solicitor General Ryan Y. Park, Special Deputy Attorney General James Bernier, Jr., and Solicitor General Fellow Matt Burke, for the State defendants-appellees.

MURPHY, Judge.

N.C.G.S. § 163-22(l) requires that any appeal from the State Board of Elections ("SBE") be filed in the Superior Court of Wake County. Failure to comply with this statutory requirement deprives any other court of jurisdiction to hear the dispute. Where a court lacks jurisdiction over a case, any action made by the court related to that case is void ab initio and a nullity, leaving any appeal based on the court's void actions moot. Here, Marvin McFadyen ("McFadyen"), appealed his purported termination as a county director of elections ("county director") by the SBE in the Superior Court of New Hanover County, in contravention of N.C.G.S. § 163-22(l). As a result, the Superior Court of New Hanover County was without jurisdiction, and all of its actions related to the case are void and vacated, rendering McFadyen's appeal moot. We dismiss without prejudice to Defendant's ability to refile in the Superior Court of Wake County.

BACKGROUND

Plaintiff, McFadyen, was nominated and appointed as County Director of the New Hanover County Board of Elections ("NHCBE") in 2011. The procedures for appointing a county director were established under N.C.G.S. § 163-35 (2014).¹ The General Assembly created a three-step process across three entities for appointing and supervising a county director. First, the county board of elections nominates an eligible individual for the county director position and submits that nomination to the Executive Director of the SBE. Second, the Executive Director issues a letter of appointment. Third, once the new county director is appointed, the county board of elections determines the county director's responsibilities and delegated authority. The county director is then compensated by the county through its Board of County Commissioners. Id.

The origins of McFadyen's purported termination began "[i]n the wake of a political shift that occurred in the 2012 elections ...." A new governor appointed new members to the SBE who then appointed John Ferrante ("Ferrante") as Chairman of NHCBE in July 2013. McFadyen claims that Ferrante "immediately expressed his personal dislike for" McFadyen and was "openly critical of and condescending toward" him, "including in front of employees whom ... McFadyen was to oversee and direct ...." As a result, McFadyen further alleges that, despite not having received performance evaluations from NHCBE, as was "past practice," NHCBE conducted closed-door interviews with other employees to discuss him and evaluate his performance.

Further, unless marked "confidential," New Hanover County had a policy of automatically making emails to and from county department heads available to the public. During the November 2014 election, military ballots and voter registration applications that were emailed to McFadyen's NHCBE email address were released to the public. These emails should not have been released. McFadyen claims he was unaware "that the county followed an unwritten or informal policy making all inbound emails to department heads available to the public without a public records request unless they were labeled ‘confidential’ or otherwise marked for nondissemination."

After this incident, NHCBE held a closed session regarding McFadyen's employment. Ferrante gave McFadyen the option of resigning and advised him that, if he refused, then NHCBE would begin formal termination proceedings.

To terminate a county director, "the county board of elections may, by petition signed by a majority of the board, recommend to the Executive Director of the [SBE] the termination of the employment of the [county director]." N.C.G.S. § 163-35(b) (2014). After receiving the petition, the Executive Director forwards a copy of the petition to the county director facing termination, who may then reply to the petition. Id. Finally, upon receiving the county director's reply or the expiration of a set time period,

the State Executive Director [of the SBE] shall render a decision as to the termination or retention of the [county director]. The decision of the Executive Director of the [SBE] shall be final unless the decision is, within 20 days from the official date on which it was made, deferred by the [SBE]. If the [SBE] defers the decision, then the [SBE] shall make a final decision on the termination after giving the [county director] an opportunity to be heard and to present witnesses and information to the [SBE], and then notify the Executive Director of its decision in writing.

Id. As a link in this termination chain, the State Executive Director of the SBE² has the initial decision of whether to fire the county director. Id. This statute did not contemplate what to do if this link is broken, such as when the Executive Director recuses herself due to a conflict of interest and fails to "render a decision as to the termination or retention of the [county director]." Id.

This termination process began after McFadyen declined Ferrante's ultimatum. The NHCBE voted 2-1 to submit a petition to the SBE recommending that McFadyen be terminated from his position as County Director of the NHCBE. In its petition, NHCBE alleged cause for termination based on various reasons including that McFadyen's employment "create[d] substantial and unacceptable risk of liability" for "Employment Practices Liability, the area of law dealing with, sexual harassment; retaliation; discrimination based on sex, race/color or disability; abuse and intimidation, and infliction of emotional distress"; that McFadyen "knowingly failed to meet his duty to safeguard and protect ... Confidential Voter Information"; and that McFadyen "intended either to deflect responsibility or to mislead the [NHCBE]" about how the Confidential Voter Information was released to the public.

At the time the SBE received the petition recommending termination, Kimberly Strach ("Strach") was the Executive Director of the SBE. She informed the SBE Chairman that she had a conflict of interest that prevented her from acting on the petition. The SBE Chairman sanctioned Strach's recusal, but the statute did not address how to proceed with a termination petition when the Executive Director recuses. In response to this situation and purportedly "to preserve the procedural approach set out by statute," the SBE Chairman appointed the Deputy Director of the SBE, Amy Strange ("Strange"),³ to act in place of the Executive Director to address the petition for McFadyen's termination.

Strange moved to the next link in the termination chain. Strange sent McFadyen a copy of the petition for termination. McFadyen replied to the petition and denied its allegations. Strange reviewed the petition and McFadyen's responses and purported to issue a decision concluding that there were two grounds for termination. Strange first concluded that McFadyen "fail[ed] to follow State and federal laws and county policies" when he failed "to protect confidential voter information, including voted ballots, from being displayed for public view constitut[ing] an inexcusable breach of public trust and lead[ing] to a lack of confidence in the elections process." She stated that the "County's policies and procedures [timeframe] for safeguarding e-mails with confidential content is at least a decade old, and was in place from the first day that Mr. McFadyen was employed as Elections Director" and that "[i]t would clearly be the responsibility of Mr. McFadyen to appropriately flag items in his own email folders." Second, Strange concluded that McFadyen "provid[ed] false or misleading information regarding a serious breach of State and federal laws ...." Acting as though she was the Executive Director of the SBE under the statute, Strange purported to grant the petition on 4 February 2015.

In accordance with his rights under the statute, McFadyen wrote the SBE to challenge Strange's purported decision. He argued that "the delegation of duties to Amy Strange[,]" as a hired employee rather than an appointed member of the SBE, "does not seem to be within the statutory authority of [N.C.G.S. §] 163-35." Over two weeks later, the SBE informed McFadyen that "no deferral will be had and that [McFadyen] can move forward with whatever subsequent legal action [he and his counsel] might find appropriate." The SBE did not have the votes to defer Strange's decision and McFadyen's purported termination was effectively final.

McFadyen began legal action in New Hanover County Superior Court. Asserting claims under both state and federal law, McFadyen sued NHCBE, New Hanover County, and the SBE and its individual members.

Defendants jointly filed a notice of removal to the U.S. District Court for the Eastern District of North Carolina on the basis of federal question jurisdiction given McFadyen's claim against the SBE under 42 U.S.C. § 1983. In that claim, McFadyen alleged that the SBE violated his constitutional right to due process during termination proceedings and sought injunctive relief and attorney fees under 42 U.S.C. § 1988. McFadyen's federal claims were dismissed,⁴ and the...