WILLIAM T. COMER, PLAINTIFF-APPELLANT v. JUDGE JAMES F. AMMONS, JR., JUDGE ROBERT J. STIEHL, III, AND THE STATE BOARD OF ELECTIONS, DEFENDANTS-APPELLEES
No. COA98-1441
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 16 November 1999
135 N.C. App. 531 (1999)
Judges TIMMONS-GOODSON and HUNTER concur.
1. Appeal and Error— mootness—election statutes—dual candidacies
Even though the 1998 election statutes
2. Declaratory Judgments— constitutionality of election statutes—removal of officials from office—action by Attorney General not required
In a declaratory judgment action involving the constitutionality of 1998 election statutes
The trial court did not err in rеfusing to declare 1998 election statutes
4. Elections— dual candidacies—constitutionality of statutes—empty seats getting appointed—requested relief at odds with argument
Even though plaintiff-voter contends that 1998 election statutes
5. Elections— dual candidacies—constitutionality of statutes—person prohibited from holding two offices
Although the North Carolina Constitution prohibits a person from holding more than one office, the trial court did not err in refusing to declare 1998 election statutes
Judge JOHN voting to dismiss appeal in a separate opinion.
Appeal by plaintiff from judgment entered 18 September 1998 by Judge Robеrt F. Floyd, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 26 August 1999.
Winfrey & Leslie by Ronald E. Winfrey, and Walen & McEniry by James M. Walen for plaintiff.
Michael F. Easley, Attorney General, by Susan K. Nichols, Special Deputy Attorney General for defendant State Board of Elections.
Poyner & Spruill L.L.P., by David W. Long, for defendant Judge Stiehl.
Armstrong & Armstrong P.C., by L. Lamar Armstrong, Jr., for defendant Judge Ammons.
WYNN, Judge.
In 1998, our General Statutes allowed a nominee for a superior court judgeship to run for another elected office during the same election. The plaintiff argues that the laws that allowed the defendant judges in this casе to simultaneously run for a superior court judgeship and a district court judgeship were unconstitutional. We uphold the constitutionality of those laws and therefore affirm the trial court‘s grant of summary judgment in favor of the defendant judges.
I. Statutory History
In 1996, the North Carolina General Assembly amended the State‘s election laws to allow a candidate for a superior court judgeship to run for more than one office on the same election day, beginning in 1998. Candidates could also run for any two offices, so long as the filing periods for the offices were not the same.
Although these sections have since been amended to prevent dual candidacies, the issues in the case before this Court are based on the
The 1998 version of
(e) Candidacy for More Than One Office Prohibited. No person may file a notice of candidacy for more than one office or group of оffices described in subsection (b) of this section for any one election. If a person has filed a notice of candidacy with a board of elections under this section for one office or group of offices, then a notice of candidacy may not later be filed for any other office or group of offices under this section when the election is on the same date unless the notice of candidacy for the first office is withdrawn under subsection (c) of this section.
The referenced subsections (b) and (c) included only judgeships of the superior court.
The 1998 version of
(h) No person may file a notice of candidacy for more than one office described in subsection (c) of this section for any one election. If a person has filed a notice of candidacy with a board of elections under this section for one office, then a notice of candidacy may not later be filed for any other оffice under this section when the election is on the same date unless the notice of candidacy for the first office is withdrawn under subsection (e) of this section; provided that this subsection shall not apply unless the deadline for filing notices of candidacy for both offices is the same.
The referenced subsections (c) and (e) applied to various state and federal elective offices, but did not include the office of superior court judge.
Taken together,
Defendants Ammons and Stiehl were both incumbent district court judges for the 12th Judicial District for Cumberland County. They filed for reelection during the filing period of the first Monday in January to the first Monday in February 1998. Both ran unopposed for their district court seats in the general election.
On 28 February 1998, Judge Coy E. Brewer, Jr. resigned from his seat on the 12th District‘s Superior Court, leaving a vacancy. The State Board of Elections opened a one week filing period in March 1998 for this seat and both Judge Ammons and Judge Stiehl filed for the seat. Neither withdrew as candidates for the district court.1 A total of six candidates filed for the superior court election.
Judge Stiehl was reelected without opposition to his district court seat on 3 Nоvember 1998. Judge Ammons won both the district court and the superior court elections, and has since been sworn in as a superior court judge. The vacancy he left in the district court has been filled by Judge Donald Clark, Jr., who was appointed by Governor James B. Hunt, Jr.
The plaintiff, William T. Comer, was a registered voter living in Cumberland County. He was not a candidate for any office in the 1998 elections. On 12 May 1998—after Judges Ammons and Stiehl filed their notices of candidacy but before the general election—Mr. Comer filed аn action for declaratory judgment, urging the court to find
III. Motion to Dismiss
A. Mootness Argument
[1] Judges Ammons and Stiehl along with the State Board of Elections initially move this Court to dismiss Mr. Comer‘s appeal as moot. We deny that motion.
In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L. Ed. 2d 642, 649 (1979), the United States Supreme Court set forth a two-pronged test which renders a case moot when (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have completely and irrеvocably eradicated the effects of the alleged violation.
In the case under consideration, Mr. Comer challenges the constitutionality of
However, part of the Davis test has not been met. Significantly, if the statutes in question were in violation of the North Carolina Constitution, then Judges Ammons and Stiehl are holding office unlawfully. If that is the case, then this violation has not ceased and there has been no eradication of the effects of the alleged violation. Thus, since the Davis test is not fully satisfied, we will address the merits of the case.
B. Quo Warranto Argument
[2] Judges Ammons and Stiehl along with the State Board of Elections also argue that the case at hand should not be heard because the removal of an elected official must be done quo warranto (or more accurately, by its modern statutory equivalent) and therefore a request for declaratory judgment is no longer the proper means of redressing the problem. We disagree and find that a justiciable question remains for this Court to decide.
1-515 . Action by Attorney General.An action may be brought by the Attorney General in the name of the State, upon his own information or upon the complaint of a private party, against the party offending, in the following cases:
(1) When a person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State...
Mr. Comer argues that
In Newsome v. N.C. State Bd. of Elections, 105 N.C. App. 499, 415 S.E.2d 201 (1992), we addressed a similar situation. In that case, the plaintiffs filed an action to enjoin a special election of a mayor and Board of Aldermen. The injunction was denied, the election was held, and the new mayor and board were seated. On appeal, the appellees argued that the case was moot because the elected officials had been seated, and therefore a new action must be brought undеr
Similarly, Mr. Comer is not directly challenging the election or its results; rather, the main thrust of his argument is that the election statutes were unconstitutional. Although Mr. Comer cannot avoid arguing that the defendant judges are holding office in an unlawful manner (having been elected via an unconstitutional election),2 his main аrgument lies not against the judges themselves, but against the statutes that allowed their election to office. Likewise, although a ruling for Mr. Comer might result in the removal of the judges from office, this would only be the byproduct of the constitutional claim and would not be the result of a direct challenge to the election.
IV. Appellant‘s Constitutional Arguments
[3] Having decided that a justiciable issue still remains, we now address the substantive issue of whether the trial court properly
In general, our statutes are presumed to be constitutional. As the Suрreme Court of North Carolina said in Moore v. Knightdale Bd. of Elections, 331 N.C. 1, 5, 413 S.E.2d 541, 543 (1992):
Unless the Constitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision....
However, because the presumption that a statute passes constitutional muster is not conclusive, we must still determine if any provisions of the North Carolina Constitution serve to render the statute invalid.
Dual candidacies are not forbidden per se by the North Carolina Constitution. Therefore, the statutes in question that allow dual candidacies are constitutional unless other provisions serve to render them unconstitutional.
Mr. Comer first argues that
First, the State has a rational basis for allowing only lawyers to run for a superior court seat—judges should be qualified to handle the cases before them; in fact, the North Carolina Constitution requires that our superior court judges be authorized to practice law.
Second, it was not only lawyers that were allowed to run for more than one office if the filing deadlines were different for the two offices. The limitation that the candidate be a lawyer applied when
[4] Mr. Comer‘s second argument is that by allowing candidates to run for more than one office, the election process is effectively removed from the hands of the voters. This assertion too is without merit.
To begin, although Mr. Comer does not actually argue that his fundamental right to vote has been infringed, we consider it prudent to address that issue.
A fundamental right is a right explicitly or implicitly guaranteed to individuals by the United States Constitution or a state constitution. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L. Ed. 2d 510 (1965). Fundamental rights are afforded the highest level of protection, and they can only be infringed upon if the state can show it has a compelling need to do so.
The right to vote per se is not a fundamental right granted by either the North Carolina Constitution or the United States Constitution. See State ex rel Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989); Rivera-Rodriguez v. Popular Democratic Party, 457 U.S. 1, 102 S.Ct. 2194, 72 L. Ed. 2d 628 (1982). What is fundamental is that once the right to vote has been conferred, the equal right to vote is a fundamental right. White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983); Rivera-Rodriguez v. Popular Democratic Party.
Mr. Comer makes no claim that he was denied the same right to vote as other voters in his district. He therefore can make no claim that his fundamental right to an equal right to vote was infringed upon.
However, Mr. Comer does argue that the election process was frustrated by the dual candidacies because the power to choose officials was taken out of the hands of the voters. He argues that because the election process is the favored way to choose officials, appointments frustrate the election process. But, the relief requested by Mr. Comer does not match the harm he asserts.
[5] Mr. Comer next contends that because the North Carolina Constitution prohibits a person from holding more than one office, a person should be barred from seeking election to more than one office. Despite the fact that the latter is not necessary to achieve the former—that is, a dual candidacy does not necessarily lead to the holding of dual offices—the weight of authority clearly allows dual candidacies when no affirmative prohibitions exist.
In pertinent part,
(1) Prohibitions. It is salutary that the responsibilities of self-government be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual be avoided . . . No person shall hold concurrently any two offices in this state that are filled by election of the people.
In Moore, the Supreme Court of North Carolina explored the scope of the dual officeholding prohibition. See Moore, 331 N.C. 1, 413 S.E.2d 541. In that case, a North Carolina statute that required current office holders to resign from their office before running for a new office violated
Article VI, Section 9 itself contains no provision that prevents pursuing one office while holding another. Instead, for reasons apparent in its own text it condemns dual officeholding . . . The evil the section seeks to prevent is that of holding more than one office simultaneously. This evil is not present in the mere pursuit by an officeholder of another office.
Id. at 8-9, 413 S.E.2d at 545.
Extending the rationale of Moore to situations where one candidate seeks two offices—such as in the case before the Court—is appropriate. Allowing dual candidacy may not advance the prohibition against dual officeholding, but it would nоt, in and of itself, be an evil that the North Carolina Constitution seeks to prevent.
Other states have considered the question as to whether dual candidacy is permitted when dual officeholding is not. Indeed, several courts have found that dual candidacy should be allowed and their rationales help guide our decision in this case. See, e.g., In Re Nomination Petitions of Michael A. O‘Pake, 422 A.2d 209 (Pa. Cmwlth. 1980) (compared dual candidacy to a candidate who runs for office while still holding another office). See also, Kelly v. Reed, 355 P.2d 969 (Nev. 1960); Misch v. Russell, 26 N.E. 528 (Ill. 1891); and State ex rel Neu v. Waechter, 58 S.W.2d 971 (Mo. 1933) (a prohibition against dual offiсeholding does not require a prohibition against dual candidacy).
In contrast, a lesser number of cases from other states have forbidden dual candidacy, but the particulars of those cases can be distinguished from the case at hand. For instance, in Burns v. Wiltsie, 102 N.E.2d 569 (N.Y. 1951), the New York Supreme Court disallowed dual candidacies despite the lack of constitutional or statutory prohibitions. The court relied on a provision of the New York Constitution which granted “the right of every citizen to vote ‘for all оfficers that are now or hereafter may be elective [sic] by the people.‘” Id. at 572. This language created an affirmative right in the citizens of New York to vote for all officers of the state. As discussed earlier, North Carolina‘s Constitution provides no such fundamental right to vote, thereby allowing appointments of officials instead of relying entirely on elections.
Similarly, State ex rel Fair v. Adams, 139 So. 2d 879 (Fla. 1962) can also be distinguished from the present case. After finding no guidance under the Florida Constitution, statutes, or case law, the Florida
Finally, Mr. Comer argues that
V. Conclusion
Since Mr. Comer offered no viable challenge to the constitutionality of
The decision of the trial court is,
Affirmed.
Judge EDMUNDS concurs.
Judge JOHN concurs in a separate opinion.
Judge JOHN concurring in the result only with separate opinion.
The majority properly points out that
Mr. Comer is not directly challenging the election or its results; rather, the main thrust of his аrgument is that the election statutes were unconstitutional.
have since been amended and therefore the alleged violation of the North Carolina Constitution has ceased. Moreover, the Statutes have been rewritten to disallow superior court candidates from running for other offices during the same election, so this fact scenario will not be repeated.
Our Supreme Court has stated,
[w]henever during the course of litigation it devеlops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain an action merely to determine abstract propositions of law. . . . If the issues before the court become moot at any time during the course of the proceedings, the usual response is to dismiss the action.
Simeon v. Hardin, 339 N.C. 358, 370, 451 S.E.2d 858, 866 (1994) (citations omitted). This is true even if, as here, the action is brought as a declaratоry judgment action. Pearson v. Martin, 319 N.C. 449, 451, 355 S.E.2d 496, 498 (1987).
In the case sub judice, the “questions originally in controversy between the parties are no longer at issue [and] the case should be dismissed.” Simeon, 339 N.C. at 370, 451 S.E.2d at 866. However, the majority having elected to address Mr. Comer‘s appeal, I concur in the result reached in the majority opinion.