Crumpler v. Thornburg , 92 N.C. App. 719 ( 1989 )

375 S.E.2d 708 (1989)

William B. CRUMPLER, Plaintiff,
v.
Lacy H. THORNBURG, in his official capacity as Attorney General of North Carolina; F.K. Heineman, in his official capacity as Chief of the Raleigh Police Department; Major R.N. Carroll, in his official capacity as an officer of the Raleigh Police Department; Captain J.S. Carroll, in his official capacity as an officer of the Raleigh Police Department; and Sgt. F.D. McLamb, in his official capacity as an officer of the Raleigh Police Department, Defendants.

No. 8810SC354.

Court of Appeals of North Carolina.

February 7, 1989.

Atty. Gen., Lacy H. Thornburg by Asst. Atty. Gen., William P. Hart and Sp. Deputy Atty. Gen. Christopher P. Brewer, Raleigh, for defendants-appellants.

Thorp, Fuller & Slifkin by James C. Fuller and Margaret E. Karr, for plaintiff-appellee, North Carolina Civ. Liberties Foundation.

ARNOLD, Judge.

In their first assignment of error defendants contend that the trial court was without jurisdiction to hear plaintiff's summary judgment motion because there was no actual or real existing controversy between the parties. We disagree. Rather we find that the case was moot at the time Judge Battle ruled on the summary judgment motion and should have been dismissed.

Jurisdiction under the Declaratory Judgment Act, G.S. 1-253 et seq, 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." Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 ... The existence of such genuine controversy between parties having conflicting interests is a "jurisdictional necessity." Tryon v. Power, 222 N.C. 200, 22 S.E.2d 450.

Greensboro v. Wall, 247 N.C. 516, 519, 101 S.E.2d 413, 416 (1958).

Plaintiff filed this action for Declaratory and Injunctive Relief on 17 September 1986 at a time when there was a genuine controversy between the parties. As the trial court noted in its Temporary Restraining Order dated 18 September 1986:

Plaintiff will be injured irreparably if he does not receive a temporary restraining order as set forth herein in that, taking the allegations of the Complaint as true, he will be deprived of his freedom of speech and his right to assemble under the Federal and State Constitutions by being denied the opportunity to protest the death penalty before the execution of John Rook, which is scheduled for the morning of September 19, 1986.

"Once the jurisdiction of a court or administrative agency attaches, the general rule is that it will not be ousted by subsequent events." In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978), cert. denied, Peoples v. Judicial Standards Commission of North Carolina, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297 (1979). However, "[u]nlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action. If the issues before a court ... become moot at any time during the course of the proceedings, the usual response should be to dismiss the action." Id. at 148, 250 S.E.2d at 912.

"In state courts the exclusion of moot questions ... represents a form of judicial restraint." Id. [Citations omitted]. That "[j]udicial resources should be focused on problems which are real and present rather than dissipated or abstract, hypothetical or remote questions, is fully applicable to the Declaratory Judgment Act." Adams v. Dept. of Natural and Economic Resources, 295 N.C. 683, 703, 249 S.E.2d 402, 414 (1978) [citations omitted], accord Pearson v. Martin, 319 N.C. 449, 355 S.E.2d 496 (1987). A moot question is not within the scope of the Declaratory Judgment Act. Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110 (1956).

Plaintiff argues that this case still presents a live controversy because he intends to picket on the eve of future executions, should they occur, and that he needs declaratory relief in order to assure that he will be allowed permits for similar pickets. He fears that he and others could be subjected to prosecution for violating the statute. However, the grant of the TRO resolved plaintiff's concern that he would be unable to picket on the eve of the execution of John Rook. Plaintiff had neither been arrested nor had he been refused another permit to demonstrate at the time the summary judgment motion came before Judge Battle in December of 1987, more than fourteen months after plaintiff was granted the TRO for the September 1986 demonstration.

Plaintiff relies on Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971), for the proposition that the Declaratory Judgment Act is a valid tool to find an act unconstitutional "when it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees." Id. at 562, 184 S.E.2d at 264. We agree. But, even this principle cannot override policy reasons which mandate judicial restraint in moot cases.

Without present genuine controversy a case that may once have been alive becomes moot. In re Peoples; Benz v. Compania Naviera Hildalgo, S.A., 205 F.2d 944 (1953) (court declined review characterizing the case as moot because it called for a rule to control conduct based on speculative assumptions). See Adams v. Dept. of Natural and Economic Resources, 295 N.C. 683, 703, 249 S.E.2d 402, 414 (1978) (plaintiffs anticipated that all applications for development permits would be denied).

However, a case which is "capable of repetition, yet evading review" may present an exception to the mootness doctrine. Leonard v. Hammond, 804 F.2d 838, 842 (4th Cir.1986), citing Southern Pacific Terminal v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 2d 310 (1911). There are two elements required for the exception to apply:

(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.

Id. Our research reveals that the "capable of repetition, yet evading review" exception commonly employed in federal cases otherwise moot has been recognized in North Carolina in the single case of In re Jackson, 84 N.C.App. 167, 352 S.E.2d 449 (1987). In Jackson, a district court order required a school board to provide schooling for a student who had been suspended for the duration of the school year as a result of an assault. Id. The case did not come before this Court until after the school year was completed. Recognizing the case as moot, this Court invoked the "capable of repetition, yet evading review" exception because:

Children involved in delinquency proceedings are frequently guilty of misconduct at school and thus subject to school board [and District Court] disciplinary proceedings.... Until the conflict between a school system's right to suspend students for misconduct and the juvenile court's authority to fashion sensitive and appropriate dispositions ... is resolved, it is not improbable that ... local school boards will be repeatedly subject to orders like the one in the case sub judice. Because the suspension ... can never be longer than the balance of the school year, the effect of an order overriding a suspension may always be too short a duration to allow full litigation of the issues prior to its expiration. Consequently, we exercise our discretion to decide the issues presented.

Id. at 171, 352 S.E.2d at 452.

We do not find that this case presents as likely a possibility that the same complaining party would be subject to the same action again. It has been more than two years since plaintiff filed this suit and he has yet to be arrested or refused a permit for a similar demonstration. The case is moot now and was moot at the time it was before Judge Battle.

For the reasons explained the order of the trial court is vacated and the appeal is dismissed.

Vacated and dismissed.

HEDRICK, C.J., and ORR, J., concur.