NO. COA01-1311
NORTH CAROLINA COURT OF APPEALS
Filed:
15 October 2002
RANDY B. ROYAL, EDWIN BOOTH, OWEN BURNEY, JR., ED CARTER, GARY
GRANT, AILEEN FORD, WILLIAM HARPER, MARY JO LOFTIN, DANIEL
MALLISON, GARY PHILLIPS, FANNIE WALDEN, DANIEL JOHNSON WILLIS,
THE NORTH CAROLINA STATE CONFERENCE OF NAACP BRANCHES, NORTH
CAROLINA FAIR SHARE, THE CONCERNED CITIZENS OF TILLERY, THE NORTH
CAROLINA ALLIANCE FOR DEMOCRACY, THE NORTH CAROLINA WASTE
AWARENESS REDUCTION NETWORK, CITIZENS FOR RESPONSIBLE GOVERNMENT
OF GUILFORD COUNTY, and THE NORTH CAROLINA CONSUMERS COUNCIL
v.
THE STATE OF NORTH CAROLINA and THE NORTH CAROLINA BOARD OF
ELECTIONS
Appeal by plaintiffs from order entered 2 August 2001 by Judge
Howard E. Manning, Jr., in Wake County Superior Court.
Heard in
the Court of Appeals 14 August 2002.
Smith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr.;
National Voting Rights Institute, by Lisa J. Danetz; Gregory
Luke; Harry C. Martin; Ferguson, Stein, Chambers, Wallas,
Adkins, Gresham & Sumter, P.A., by Adam Stein; Advocates for
Children’s Services, Legal Services of North Carolina, by
Lewis Pitts, for plaintiff appellants.
Attorney General Roy Cooper, by Special Deputy Attorneys
General James Peeler Smith and Norma S. Harrell, for defendant
appellees.
McCULLOUGH, Judge.
Plaintiffs are former or potential candidates for the General
Assembly,
voters,
and
certain
public
interest
groups.
On
28
December 1999, plaintiffs filed suit seeking a declaratory judgment
pursuant to N.C. Gen. Stat. § 7A-245(a)(4) (2001) and the Uniform
Declaratory Judgment Act, N.C. Gen. Stat. § 1-253 to -267 (2001),
as well as an injunction ordering defendants
-2to take all steps necessary to remedy the
exclusion of Plaintiffs, and other citizens
without access to substantial wealth, from
meaningful participation in all integral
aspects of the electoral process for North
Carolina legislative elections by providing
adequate public financing which will allow any
and
all
qualified
citizens
to
compete
meaningfully for public office, regardless of
their
economic
status
or
personal
associations[.]
On 25 February 2000, defendants filed a motion to dismiss pursuant
to
N.C.
Gen.
Defendants
Stat.
contended
§
1A-1,
the
Rule
trial
12(b)(1)
court
and
lacked
(6)
subject
(2002).
matter
jurisdiction because plaintiffs did not have standing and the
issues
they
question.
raised
constituted
a
non-justiciable
political
Defendants also contended that none of plaintiffs’ six
claims for relief stated a claim upon which relief could be
granted.
On 2 August 2001, the trial court entered an order
dismissing plaintiffs’ amended complaint after concluding “[t]he
Amended Complaint, in all respects, fails to state a claim upon
which relief can be granted and is hereby dismissed.”
From this
ruling, plaintiffs appealed.
In
reaching
plaintiffs
had
jurisdiction.
its
determination,
standing
and
that
the
trial
it
had
court
assumed
subject
matter
We shall make the same assumptions and address this
case on the merits, although the issue of standing is far from
certain.
See State v. Rippy, 80 N.C. App. 232, 341 S.E.2d 98
(1986) (manager of fishing pier could not collaterally attack
constitutionality of a statute regulating a 750-foot zone next to
the pier because he could not establish he had been injured).
-3In general, plaintiffs claim that only those persons who are
personally wealthy or who can raise large sums of money are viable
candidates for election to public office and that the proper
interpretation of several North Carolina constitutional provisions
would require the State to create a scheme for publicly financing
elections.
Plaintiffs allege this financial barrier, which they
define as a “wealth primary,” operates to exclude non-wealthy
citizens from candidacy.
Plaintiffs divide their complaint into six counts, as follows:
Count 1: Equal Protection
Here, plaintiffs rely on Article I, § 19 of the North Carolina
Constitution, which provides:
[Article I] Sec. 19.
Law of the land;
equal protection of the laws. No person shall
be taken, imprisoned, or disseized of his
freehold,
liberties,
or
privileges,
or
outlawed, or exiled, or in any manner deprived
of his life, liberty, or property, but by the
law of the land. No person shall be denied
the equal protection of the laws; nor shall
any person be subjected to discrimination by
the State because of race, color, religion, or
national origin.
Count 2: Property Qualifications
Affecting the Right to Vote or Hold Office
In this count, plaintiffs rely on the following sections of
the North Carolina Constitution:
Article I, §§ 10 and 11, Article
II, §§ 6 and 7, and Article VI, § 6.
These provisions provide:
[Article I] Sec. 10.
Free elections.
All elections shall be free.
[Article
I]
Sec.
11.
Property
qualifications.
As political rights and
privileges are not dependent upon or modified
-4by property, no property qualification shall
affect the right to vote or hold office.
[Article II] Sec. 6. Qualifications for
Senator.
Each Senator, at the time of his
election, shall be not less than 25 years of
age, shall be a qualified voter of the State,
and shall have resided in the State as a
citizen for two years and in the district for
which he is chosen for one year immediately
preceding his election.
[Article II] Sec. 7. Qualifications for
Representative. Each Representative, at the
time of his election, shall be a qualified
voter of the State, and shall have resided in
the district for which he is chosen for one
year immediately preceding his election.
[Article VI] Sec. 6.
Eligibility to
elective office.
Every qualified voter in
North Carolina who is 21 years of age, except
as in this Constitution disqualified, shall be
eligible for election by the people to office.
Count 3: Freedom of Conscience and Association
Here, plaintiffs rely on Article I, §§ 12 and 13 of the North
Carolina Constitution.
These provisions provide:
[Article I] Sec. 12. Right of assembly
and petition.
The people have a right to
assemble together to consult for their common
good, to instruct their representatives, and
to apply to the General Assembly for redress
of grievances; but secret political societies
are dangerous to the liberties of a free
people and shall not be tolerated.
[Article I] Sec. 13. Religious liberty.
All persons have a natural and inalienable
right to worship Almighty God according to the
dictates of their own consciences, and no
human authority shall, in any case whatever,
control or interfere with the rights of
conscience.
Count 4: Special Privileges and Emoluments
-5This count relies on Article I, § 32 of the North Carolina
Constitution, which provides:
[Article
I]
Sec.
32.
Exclusive
emoluments.
No person or set of persons is
entitled to exclusive or separate emoluments
or privileges from the community but in
consideration of public services.
Count 5: Popular Sovereignty and Representation
Here, plaintiffs rely on Article I, §§ 2 and 8 of the North
Carolina Constitution.
These provisions provide:
[Article I] Sec. 2. Sovereignty of the
people. All political power is vested in and
derived from the people; all government of
right originates from the people, is founded
upon their will only, and is instituted solely
for the good of the whole.
[Article I] Sec. 8. Representation
taxation. The people of this State shall
be taxed or made subject to the payment of
impost or duty without the consent
themselves or their representatives in
General Assembly, freely given.
and
not
any
of
the
Count 6: Free Elections
In their final count, plaintiffs rely on Article I, § 10 of
the North Carolina Constitution (set forth previously in Count 2).
Having set forth the constitutional provisions relied upon by
plaintiffs, we turn to the question presented by this appeal. When
reviewing the dismissal of a complaint pursuant to Rule 12(b)(6),
we recognize that
we are to liberally construe the complaint and
determine whether, as a matter of law, the
allegations of the complaint, taken as true,
are
sufficient
to
state
some
legally
recognized claim or claims upon which relief
may be granted to plaintiffs. While the well-
-6pled allegations of the complaint are taken as
true, conclusions of law or “unwarranted
deductions of fact” are not deemed admitted.
Norman v. Nash Johnson and Sons’ Farms, Inc., 140 N.C. App. 390,
394,
537
S.E.2d
248,
252
(2000)
(emphasis
added)
(citations
omitted), disc. reviews on other issues denied, 353 N.C. 378, 547
S.E.2d 13-14 (2001).
In reviewing plaintiffs’ amended complaint
and the constitutional provisions relied on, it is clear that
plaintiffs would like this Court to rule on an issue that is
properly within the province of the legislature.
As noted in
defendants’ brief, public financing of political campaigns is an
issue that has been debated in our state and “has been played out
for decades in state houses across the country and in our nation’s
capitol.”
To reach their desired result, plaintiffs would have this
Court read a meaning into the word “qualification” that is not
present in its definition.
As applied to elections, the word
“qualification” means “[t]he possession of qualities or properties
(such as fitness or capacity) inherently or legally necessary to
make one eligible for a position or office, or to perform a public
duty or function[.]”
Black’s Law Dictionary 1253 (7th ed. 1999).
Nowhere in the constitutional provisions set forth previously and
relied on by plaintiffs is there any direct requirement that
campaigns be publicly financed, although the same cannot be said
for the financing of education.
See N.C. Const. art. IX, § 2(1).
Inadequate funding of public educational opportunity is an
issue the courts are able to address.
See Leandro v. State of
-7North Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997).
Plaintiffs
are not the first litigants who have attempted to have the courts
rule
on
issues
determination.
that
are
properly
the
subject
of
legislative
See Martin v. Housing Corp., 277 N.C. 29, 175
S.E.2d 665 (1970) (upholding the constitutionality of the North
Carolina
Housing
Corporation,
as
the
decision
to
create
the
corporation was within the legislature’s powers); Insurance Company
v. McDonald, 277 N.C. 275, 285, 177 S.E.2d 291, 298 (1970) (stating
that in the absence of constitutional provisions or necessary
implications therefrom, “questions as to public policy are for
legislative
determination”).
We
likewise
decline
plaintiffs’
invitation in this case.
Based on the foregoing, we hold that public financing of
political campaigns is clearly a legislative issue.
The trial
court’s order dismissing plaintiffs’ lawsuit is therefore
Affirmed.
Judges McGEE and BRYANT concur.
