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Rotruck v. Guilford County Board of Elections

Court of Appeals of North Carolina

September 3, 2019

TODD EDWARD ROTRUCK, Plaintiff,
v.
GUILFORD COUNTY BOARD OF ELECTIONS and JANELLE ROBINSON, Defendants.

          Heard in the Court of Appeals 6 August 2019.

          Appeal by Plaintiff from order entered 4 October 2018 by Judge John O. Craig in Guilford County No. 18-CVS-4854 Superior Court.

          Forrest Firm, P.C., by Patrick S. Lineberry and John D. Burns, and Allman Spry Davis Leggett & Crumpler, P.A., by D. Marsh Prause, for Plaintiff-Appellant.

          Office of the Guilford County Attorney, by J. Mark Payne, for Defendant-Appellee Guilford County Board of Elections.

          COLLINS, JUDGE.

         Plaintiff Todd Rotruck appeals from the trial court's 4 October 2018 order which affirmed Defendant Guilford County Board of Elections' (the "BOE") 24 April 2018 order sustaining Defendant Janelle Robinson's challenge to Plaintiff's eligibility to vote in Guilford County Precinct NCGR2 in the Town of Summerfield. Plaintiff contends that the trial court erred by affirming the BOE Order because the trial court misallocated the applicable burden of proof in its review of the BOE Order, and because the BOE deviated from permissible procedure in conducting the BOE Hearing, relied upon unsworn witness testimony and unauthenticated documentary evidence, and made findings of fact that were not supported by competent and substantial evidence in the BOE Order. Finding no merit to Plaintiff's arguments, we affirm.

         I. Background

         The evidence presented to the BOE tended to show the following: Prior to 2016, Plaintiff lived with his family in a home on Lewiston Road in Greensboro (the "Greensboro property"). In the summer of 2016, Plaintiff purchased a home on Strawberry Road in Summerfield (the "Summerfield property"). Plaintiff and his family moved in to the Summerfield property in September 2016, but did not sell the Greensboro property at that time. Plaintiff and his family continued to use the Greensboro property, e.g., as a home office for Plaintiff and his wife, throughout the period that they lived at the Summerfield property. Plaintiff and his family contemplated moving back to the Greensboro property at an unspecified point in the future because they wanted to renovate the Summerfield property.

         Renovations began on the Summerfield property sometime in early 2017, and Plaintiff's family, but not Plaintiff, moved back to the Greensboro property in April 2017. In July 2017, Plaintiff filed paperwork with the North Carolina State Board of Elections declaring his candidacy for the Summerfield Town Council, listing his mailing address as that of the Summerfield property. Around the same time, Plaintiff registered to vote in the precinct covering the Summerfield property, listing the Greensboro property as the site of his prior voter registration. Plaintiff listed the address of the Greensboro property as his mailing address on a number of documents throughout the period he lived at the Summerfield property.

         In November 2017, Plaintiff was elected to the Summerfield Town Council. That same month, Plaintiff and his wife sold the Greensboro property, indicating that the Greensboro property was their "primary residence" in the deed. Plaintiff negotiated a temporary lease of the Greensboro property with the new owner that would allow Plaintiff's family to live at the Greensboro property while the renovations of the Summerfield property were completed. Plaintiff moved back to the Greensboro property in December 2017. As of the 17 April 2018 BOE Hearing, Plaintiff and his family had not moved back to the Summerfield property or completed renovations thereupon.

         In February 2018, Robinson filed an N.C. Gen. Stat. § 163A-911[1] challenge to Plaintiff's qualification to vote in Guilford County Precinct NCGR2 in the Town of Summerfield, wherein Robinson alleged that Plaintiff was not a resident of the Summerfield property within the meaning of N.C. Gen. Stat. § 163A-842 and therefore that Plaintiff was not qualified to vote in Summerfield. The BOE held a preliminary hearing on Robinson's challenge on 20 February 2018. The BOE subsequently held a full hearing on 17 April 2018 in which the BOE received evidence and testimony from both Robinson and Plaintiff, among others (the "BOE Hearing"). On 24 April 2018, the BOE entered an order sustaining Robinson's challenge (the "BOE Order"). In the BOE Order, the BOE made a number of findings of fact including, inter alia, that: (1) Plaintiff was registered to vote in Summerfield, and Plaintiff's voter registration on file indicated that the Summerfield property's address was Plaintiff's "residence address[;]" (2) Robinson had presented a number of documents to support her allegation that Plaintiff resided at the Greensboro property including, inter alia, "the address on file with the Real Estate Commission," which used the Greensboro property's address as Plaintiff's "residential address[;]" and (3) Plaintiff "partially moved from the Greensboro [property] to the Summerfield [property] with the intention of moving back to Greensboro while the Summerfield [property] is being renovated." Based upon these findings of fact, the BOE concluded that: (1) "[t]he evidence adduced showed that [Plaintiff] had not established the Summerfield [property] as a residence within the meaning of the statutes as of the time of the hearing" and that "the Summerfield [property] was a temporary residence;" and (2) Robinson "ha[d] shown by affirmative proof that [Plaintiff] is not a resident of precinct NCGR2 or of the Town of Summerfield" within the meaning of N.C. Gen. Stat. § 163A-842 et seq.

         Plaintiff filed the instant lawsuit on 26 April 2018 in Guilford County Superior Court (the "trial court") petitioning for review of the BOE Order pursuant to N.C. Gen. Stat. § 163A-919(c) and moving for injunctive relief. In his complaint/petition, Plaintiff (1) alleged that the BOE (a) failed to follow proper procedures for quasi-judicial hearings and (b) failed to make findings of fact sufficient to support its decision, and (2) requested a temporary restraining order and preliminary injunction prohibiting the BOE from changing Plaintiff's voter registration pending the resolution of this litigation.

         On 21 May 2018, the BOE answered, moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), and asserted a number of affirmative defenses. On 25 May 2018, Robinson answered, moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) and (6), and asserted a number of her own affirmative defenses.

         The trial court apparently entered an order on 12 June 2018 granting Plaintiff a temporary stay in the case pending resolution of the appeal.[2]

         On 4 October 2018, the trial court entered an order affirming the BOE Order (the "Trial Court Order"). In the Trial Court Order, the trial court concluded that, based upon its review of the BOE Order and the whole record before the BOE, the BOE Order contains no errors of law and the BOE Order's findings of fact and conclusions of law were "supported by competent, material and substantial evidence and by affirmative proof." The trial court accordingly affirmed the BOE Order and dissolved the 12 June 2018 order temporarily staying the modification of Plaintiff's voter registration.

         Plaintiff timely appealed.

         II. Discussion

         A. Standard of Review

         When conducting a hearing regarding a voter registration challenge brought pursuant to N.C. Gen. Stat. § 163A-911, a county board of elections sits as a quasi-judicial body. See Knight v. Higgs, 189 N.C.App. 696, 699, 659 S.E.2d 742, 745 (2008). A decision by a county board of elections on a voter registration challenge is appealable to the superior court of the county in which the offices of that board are located. N.C. Gen. Stat. § 163A-919(c) (2018).

         In reviewing a county board of elections' decision on a voter registration challenge, "the Superior Court acts as an appellate court." Knight, 189 N.C.App. at ...


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