in the Court of Appeals 6 August 2019.
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.
of the Guilford County Attorney, by J. Mark Payne, for
Defendant-Appellee Guilford County Board of Elections.
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
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.
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
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.
February 2018, Robinson filed an N.C. Gen. Stat. §
163A-911 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.
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.
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
trial court apparently entered an order on 12 June 2018
granting Plaintiff a temporary stay in the case pending
resolution of the appeal.
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.
Standard of Review
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).
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