Alexander v. NC State Bd. of Elections ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-52
No. COA 21-77
Filed 1 February 2022
Wake County, No. 19 CVS 11321
KELLY ALEXANDER, Jr., DONALD R. CURETON, Jr., ALICIA D. BROOKS,
KIMBERLY Y. BEST, LAURENE L. CALLENDER, and LATRICIA H. WARD,
Plaintiffs,
v.
NORTH CAROLINA STATE BOARD OF ELECTIONS, STELLA ANDERSON, JEFF
CARMON III, STACY EGGERS IV, WYATT T. TUCKER, Sr., DAMON CIRCOSTA,
KAREN BRINSON BELL, PHILLIP E. BERGER, and TIMOTHY K. MOORE (all in
official capacities only), Defendants.
Appeals by plaintiffs from order entered 25 September 2020 and by defendants
from order entered 23 November 2020 by Judges Wayland J. Sermons, Jr., Lora C.
Cubbage, and R. Gregory Horne in Wake County Superior Court. Heard in the Court
of Appeals 3 November 2021.
Higgins Benjamin, PLLC, by Robert Neal Hunter, Jr., for Plaintiffs.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Paul M.
Cox, for State Board Defendants.
Ogletree Deakins Nash Smoak & Stewart P.C., by Thomas A. Farr, for
Legislative Defendants.
CARPENTER, Judge.
¶1 Kelly Alexander, et al., (“Plaintiffs”) appeal pursuant to N.C. Gen. Stat. § 7A-
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27 from an order of a three-judge panel in Wake County Superior Court dismissing
Plaintiffs’ claims as moot. On appeal, Plaintiffs argue their claims are not moot or,
in the alternative, that their claims fall into the public interest and “capable of
repetition, yet evading review” exceptions to mootness. The North Carolina State
Board of Elections, et al., (“Defendants”) appeal pursuant to N.C. Gen. Stat. § 7A-
27(b)(3)(c) (2019) from an order granting Plaintiffs attorney’s fees. On appeal,
Defendants argue the three-judge panel did not have jurisdiction to grant the award
or, in the alternative, that Plaintiffs do not qualify as a prevailing party under 42
U.S.C. § 1988. After careful review, we affirm the three-judge panel’s dismissal of
Plaintiffs’ claims as moot and hold the claims do not meet any exceptions to the
mootness doctrine. We agree with Defendants’ contention the three-judge panel
lacked jurisdiction to grant Plaintiffs’ request for attorney’s fees, and we vacate and
remand this order.
I. Factual and Procedural Background
¶2 In 2018, the North Carolina General Assembly enacted a law that converted
district court judicial elections in Mecklenburg County from countywide to district-
based elections. See S.L. 2018-14 § 2(a). The law divided Mecklenburg County into
eight districts, and the county’s twenty-one district court seats were allocated
amongst these eight electoral districts. Id. Previously, all twenty-one seats were
filled through a single countywide election. The law also divided Wake County into
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districts for district court judicial elections; however, no challenge was raised to that
portion of the law.
¶3 Plaintiffs, at time of filing, were: two district court judges, a former district
court judge, a member of the General Assembly, and two voters. All Plaintiffs resided
in Mecklenburg County. The complaint named as defendants the Governor of North
Carolina (“Governor”), the North Carolina State Board of Elections and its appointed
members, the Speaker of the North Carolina House of Representatives, and the
President Pro Tempore of the North Carolina Senate (collectively, “Defendants”). The
Governor and Defendants moved to dismiss the claims against them. The trial court
granted the Governor’s motion to dismiss and denied Defendants’ motions in an order
entered on 18 November 2019. The trial court’s order also transferred the case to a
three-judge panel in Wake County Superior Court pursuant to N.C. Gen. Stat. § 1-
267.1 and Rule 42(b)(4) of the North Carolina Rules of Civil Procedure.1
¶4 On 20 November 2019, Plaintiffs moved for a temporary restraining order
seeking to enjoin operation of S.L. 2018-14 § 2(a) during candidate filing, set to begin
on 2 December 2019, in anticipation of the 2020 general election. The three-judge
panel held a hearing on Plaintiffs’ motion on 22 November 2019. Following the
1 When a trial court transfers a facial challenge raised as to the validity of a statute
to a three-judge panel sitting in Wake County Superior Court, the trial court retains
jurisdiction of all other collateral matters pending resolution of the facial challenge. See N.C.
R. Civ. P. 42(b)(4) (2019).
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hearing, the parties entered an agreement to temporarily suspend the operation of
the law during the 2020 general election cycle, and the three-judge panel entered a
consent order formalizing the agreement on 27 November 2019.
¶5 On 1 July 2020, the General Assembly repealed the challenged law. See S.L.
2020-84, § 2. In response, on 13 July 2020, the three-judge panel ordered the parties
to submit briefs detailing what issues, if any, remained in the matter. On 11 August
2020, Plaintiffs moved for summary judgment, seeking a declaratory judgment
stating the repealed law had been unlawful. On 21 August 2020, Plaintiffs moved to
tax costs and fees against Defendants. Defendants submitted briefs arguing
Plaintiffs’ claims were moot. On 25 September 2020, the three-judge panel entered
an order denying the motion for declaratory judgment and dismissing Plaintiffs’
claims as moot but reserving the issue of attorney’s fees. Plaintiffs filed written notice
of appeal on 23 October 2020. On 23 November 2020, the three-judge panel entered
an order granting Plaintiffs’ motion for attorney’s fees and costs in the amount of
$165,114.44. Defendants filed notice of appeal.
II. Jurisdiction
¶6 Plaintiffs appeal from a final order dismissing their claims as moot pursuant
to N.C. Gen. Stat. § 7A-27 (2019). Defendants appeal from an order awarding
attorney’s fees, pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2019) or, in the alternative,
N.C. Gen. Stat. § 7A-27(b)(3)(c).
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¶7 Plaintiffs argue the three-judge panel’s order awarding attorney’s fees is
interlocutory and does not affect a substantial right, thereby rendering Defendants’
appeal improper. Defendants argue the order granting attorney’s fees is final, as it
resolved the only outstanding matter left in the case or, alternatively, if held to be
interlocutory, the order affects a substantial right. We disagree with Plaintiffs and
find the order is not interlocutory having resolved the issue of attorney’s fees, the sole
remaining issue between the parties. We therefore deny Plaintiffs’ motion to dismiss
Defendants’ cross appeal.
¶8 An order is interlocutory if it does not determine the issues but directs some
further proceeding preliminary to a final decree. Waters v. Qualified Pers., Inc., 294
N.C. 200, 207, 240 S.E.2d 338, 343 (1978). Moreover, “an order that completely
decides the merits of an action constitutes a final judgment for purposes of appeal
even when the trial court reserves for later determination collateral issues such as
attorney’s fees and costs.” In re Cranor, 247 N.C. App. 565, 568-69, 786 S.E.2d 379,
382 (2016) (quoting Duncan v. Duncan, 366 N.C. 544, 546, 742 S.E.2d 799, 801
(2013)).
¶9 The three-judge panel’s 25 September 2020 order reserved the issue of
attorney’s fees and determined all other matters were moot. By making a final
determination on the merits of the case on 25 September 2020, the three-judge panel
entered a final judgment. See In re Cranor, 247 N.C. App. at 568-69, 786 S.E.2d at
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382. Reserving a collateral issue, such as attorney’s fees, for a later determination
does not affect the finality of the judgment on the merits. See id. at 568-69, 786 S.E.2d
at 382. The issue of attorney’s fees was the only issue outstanding after the 25
September 2020 order was entered. The three-judge panel’s grant of Plaintiffs’
motion for attorney’s fees was not an interlocutory order, as no issue was left to be
determined by further proceedings. See Waters, 294 N.C. at 207, 240 S.E.2d at 343.
As the sole remaining issue, the panel’s determination on attorney’s fees left nothing
else to be determined. As such, the order is not interlocutory, and is therefore
appealable as a final order pursuant to N.C. Gen. Stat. § 7A-27.
III. Issues
¶ 10 The issues on appeal are whether the three-judge panel erred by: (1) dismissing
Plaintiffs’ claims as moot, and (2) awarding Plaintiffs attorney’s fees.
IV. Standard of Review
¶ 11 The issue of whether a trial court properly dismissed a case as moot is reviewed
de novo. Cumberland Cnty. Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human Servs.,
242 N.C. App. 524, 528, 776 S.E.2d 329, 332 (2015). “Under a de novo review, the
court considers the matter anew and freely substitutes its own judgment for that of
the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294
(2008) (internal quotation marks and citation omitted). Likewise, we review the
award of attorney’s fees de novo. Free Spirit Aviation, Inc. v. Rutherford Airport
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Auth., 206 N.C. App. 192, 201, 696 S.E.2d 559, 566 (2010).
V. Analysis
A. Mootness
¶ 12 Plaintiffs argue the three-judge panel erred by dismissing their claims, as the
claims were not moot or were within an exception to the mootness doctrine. For the
following reasons, we disagree with Plaintiffs’ contention their claims were not moot
or were excepted from the bar of the mootness doctrine.
¶ 13 “That a court will not decide a ‘moot’ case is recognized in virtually every
American jurisdiction.” In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978).
Whenever, during the course of litigation . . . the relief
sought has been granted or . . . questions originally in
controversy between the parties are no longer at issue, the
case should be dismissed, for courts will not entertain or
proceed with a cause merely to determine abstract
propositions of law.
Id. at 147, 250 S.E.2d at 912.
¶ 14 Under North Carolina law, mootness is not a matter of jurisdiction, but is
instead a “prudential limitation on judicial power.” Comm. to Elect Dan Forest v.
Emps. Pol. Action Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 29. In other words, it is “a
form of judicial restraint.” Id. at ¶ 65 n.39 (quoting Peoples, 296 N.C. at 147, 250
S.E.2d at 912). Our Supreme Court “consistently has refused to consider an appeal
raising grave questions of constitutional law where . . . the cause of action had been
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destroyed so that the questions become moot.” Hoke Cty. Bd. of Educ. v. State, 367
N.C. 156, 159, 749 S.E.2d 451, 454 (2013) (internal quotations omitted). Specifically,
when “the General Assembly revises a statute in a material and substantial manner,
with the intent to get rid of a law of dubious constitutionality, the question of the act’s
constitutionality becomes moot.” Id. at 159, 749 S.E.2d at 454 (internal quotations
omitted).
¶ 15 There are, however, limited exceptions to the mootness doctrine. “Even if moot
. . . this Court may, if it chooses, consider a question that involves a matter of public
interest, is of general importance and deserves prompt resolution.” N.C. State Bar v.
Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989). In addition, a court may
proceed under the “capable of repetition, yet evading review” exception. Calabria v.
N.C. State Bd. of Elections, 198 N.C. App. 550, 555-56, 680 S.E.2d 738, 744 (2009).
Two elements are required for the capable of repetition, yet
evading review” exception to the mootness doctrine 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. at 555-56, 680 S.E.2d at 744 (internal citations and quotations omitted).
¶ 16 Here, the original question in controversy, whether the judicial districts in
Mecklenburg County were constitutional, was addressed when the General Assembly
repealed that portion of the law and reverted to countywide elections in Mecklenburg
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County. See S.L. 2020-84, § 2. Likewise, Plaintiffs’ request for dissolution of the
judicial districts was also granted by the repeal. See id. Plaintiffs’ argument that
declaratory relief should be granted to put the General Assembly on notice is
unpersuasive considering precedent clearly states the actions taken by the General
Assembly render discussion of the repealed law’s constitutionality moot. See Hoke,
367 N.C. at 159, 749 S.E.2d at 454. Therefore, the three-judge panel properly found
Plaintiffs’ claims to be moot.
¶ 17 Plaintiffs further contend that even if the claims are moot, this Court should
reverse the three-judge panel’s order because their claims fall within the public
interest and “capable of repetition, yet evading review” exceptions to the mootness
doctrine.
¶ 18 First, Plaintiffs argue the public interest exception applies because voter laws
are important to the North Carolina public and have been litigated several times in
recent years. Plaintiffs primarily rely on the reasoning of Chavez v. McFadden, a
case decided by the North Carolina Supreme Court where the Court held the public
interest exception was applicable, in part, because immigration laws had “become the
subject of much debate in North Carolina in recent years.” Chavez v. McFadden, 374
N.C. 458, 468, 843 S.E.2d 139, 147 (2020). In Chavez, however, the parties all agreed
the issue was moot by virtue of the petitioners’ transfer from state law enforcement
to federal immigration custody enforcement. Id. at 468, 843 S.E.2d at 147. Although
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no relief could be provided for either petitioner, the Court reasoned there was a dire
public interest because the policies underlying the controversy were still in effect,
more individuals would be subjected to the same conditions as petitioners, and
immigration laws were a hotly discussed subject at the time. Id. at 468, 843 S.E.2d
at 147. As such, the Court in Chavez held that, due to public interest, it would
address the ongoing debate surrounding the policies. Id. at 468, 843 S.E.2d at 147.
¶ 19 Presently, however, there is no underlying controversy between Plaintiffs and
Defendants and no risk of further claims arising as the law in question has been
repealed. See S.L. 2020-84, § 2. See also Cape Fear River Watch v. N.C. Envtl, Mgmt.
Comm’n, 368 N.C. 92, 100, 772 S.E.2d 445, 450. Moreover, even where there may be
grave issues of constitutional concern, this Court will not except a case from the
mootness doctrine solely to render an advisory opinion. See Hoke, 367 N.C. at 159,
749 S.E.2d at 454. This is particularly the case where the General Assembly has
acted to address those constitutional concerns. Id. at 159, 749 S.E.2d at 454.
Therefore, we decline to address Plaintiffs’ claims under the public interest exception.
¶ 20 Plaintiffs next argue the “capable of repetition, yet evading review” exception
applies to their claims, despite conceding they may not “technically meet the
standards” of this exception. In order to meet this exception, Plaintiffs must show
the duration of litigation was too short to be fully litigated, and there is a reasonable
expectation the same complaining party will be subjected to the same action again.
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See Calabria, 198 N.C. App. at 555-56, 680 S.E.2d at 744. Here, regardless of the
duration of litigation, there is no reasonable expectation the same complaining party
will be subjected to the same action because the law has been repealed, and the
judicial districts have been completely dissolved. See S.L. 2020-84, § 2; see also
Calabria, 198 N.C. App. at 557, 680 S.E.2d at 745 (holding legislative changes to the
underlying applicable law rendered the possibility of repetition outside of a
reasonable expectation and found the “capable of repetition, yet evading review”
exception inapplicable). Although judicial districts exist in other jurisdictions,
Plaintiffs are all located in Mecklenburg County, and Plaintiffs’ claims relate only to
judicial districts in Mecklenburg County. Therefore, we find the “capable of
repetition, yet evading review” exception to the mootness doctrine inapplicable.
¶ 21 The three-judge panel properly found Plaintiffs’ claims to be moot, as the
General Assembly repealed the Mecklenburg County judicial districts. The three-
judge panel also properly found no exception to the mootness doctrine. Therefore, we
affirm the three-judge panel’s dismissal of Plaintiffs’ claims as moot.
B. Attorney’s Fees
¶ 22 Defendants argue the three-judge panel erred when it awarded Plaintiffs
attorney’s fees and costs associated with litigation because the three-judge panel
lacked jurisdiction to enter the award or, alternatively, Plaintiffs were not entitled to
attorney’s fees. We agree with Defendants’ contention the three-judge panel lacked
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jurisdiction to enter the award. As such, we do not reach the issue of whether
Plaintiffs would have been entitled to attorney’s fees had jurisdiction been proper.
¶ 23 North Carolina law provides, “any facial challenge to the validity of an act of
the General Assembly shall be transferred pursuant to [N.C. Gen. Stat. §] 1A-1, Rule
42(b)(4), to the Superior Court of Wake County and shall be heard and determined
by a three-judge panel.” N.C. Gen. Stat. § 1-267.1(a)(1) (2019). Rule 42(b)(4) states
in relevant part,
[p]ursuant to [N.C. Gen. Stat. §] 1-267.1, any facial
challenge to the validity of an act of the General Assembly
. . . shall be heard by a three-judge panel in the Superior
Court of Wake County . . . [t]he court in which the action
originated shall maintain jurisdiction over all matters
other than the challenge to the act’s facial validity.
N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (2019).
¶ 24 Once the facial challenge is transferred,
[t]he original court shall stay all matters that are
contingent upon the outcome of the challenge to the act’s
facial validity pending a ruling on that challenge and until
all appeal rights are exhausted. Once the three-judge
panel has ruled and all appeal rights have been exhausted,
the matter shall be transferred or remanded to the three-
judge panel or the trial court in which the action originated
for resolution of any outstanding matters, as appropriate.
Id.
¶ 25 “A facial challenge is an attack on a statute itself as opposed to a particular
application.” Holdstock v. Duke Univ. Health Sys., 270 N.C. App. 267, 272, 841 S.E.2d
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307, 311 (2020) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 415, 192 L. Ed. 2d
435, 443, 135 S. Ct. 2443 (2015)). Complaints alleging broad constitutional violations
constitute facial challenges. Id. at 272, 841 S.E.2d at 311.
¶ 26 Here, the trial court, after granting the Governor’s motion and denying
Defendants’ motions to dismiss, transferred the case to the three-judge panel because
Plaintiffs’ complaint raised facial challenges to an act of the General Assembly. See
N.C. Gen. Stat. §§ 1-267.1; 1A-1, Rule 42(b)(4) (2019). Upon transfer, the trial court
stayed all matters contingent upon the facial challenge pending resolution by the
three-judge panel and exhaustion of all appeals. See Holdstock, 270 N.C. App. at 272,
841 S.E.2d at 311. See also N.C. Gen. Stat. §1A-1, Rule 42(b)(4) (2019). As such,
when the trial court transferred the case to the three-judge panel, it transferred only
the facial challenge to the validity of the law, which stayed any attorney’s fees issue
until final resolution of the constitutional challenge. The issue of attorney’s fees and
costs is contingent on the outcome of the three-judge panel and any available appeals.
See Holdstock, 270 N.C. App. at 272, 841 S.E.2d at 311.
¶ 27 Because the trial court retained jurisdiction over the issue of attorney’s fees,
the three-judge panel did not have the authority to award Plaintiffs attorney’s fees.
See Holdstock, 270 N.C. App. at 272, 841 S.E.2d at 311. See also N.C. Gen. Stat. §
1A-1, Rule 42(b)(4). Therefore, the three-judge panel erred in awarding Plaintiffs
attorney’s fees. As such, we do not reach the issue of whether Plaintiffs would have
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been entitled to attorney’s fees had jurisdiction been proper, and instead vacate the
three-judge panel’s order awarding attorney’s fees and remand to the trial court for
a determination of this issue.
VI. Conclusion
¶ 28 We disagree with Plaintiffs’ argument the three-judge panel erred in finding
their claims moot without exception. The underlying controversy, by act of the
General Assembly, was resolved, and Plaintiffs effectively received the relief sought.
We agree with Defendants’ argument the three-judge panel lacked jurisdiction to
award attorney’s fees to Plaintiffs. When the trial court transferred the facial
challenge to the three-judge panel, it retained jurisdiction over the attorney’s fees
pending final resolution of the facial challenge. Therefore, the three-judge panel was
without jurisdiction to award attorney’s fees. We remand to the trial court to
determine the issue of whether Plaintiffs are entitled to attorney’s fees. Should the
trial court determine Plaintiffs are not entitled to attorney’s fees, it will issue an order
consistent with that determination. Should the trial court determine Plaintiffs are
entitled to attorney’s fees, it will also determine the amount of reasonable attorney’s
fees Plaintiffs are entitled to recover.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
Judges COLLINS and HAMPSON concur.