1. Elections--quo warranto action--service not timely
The trial court correctly concluded that a summons and
complaint had not been effectively served within 90 days of
defendant taking office in a contested mayoral election where
defendant was sworn in as mayor on 21 December 1999 and the
complaint and summons were served on 23 March 2000. Although
plaintiff contends that the statute of limitations was tolled
because he complied with N.C.G.S. § 1A-1, Rules 3 and 4, and that
Rule 6(b) provides authority for the trial court to extend the
time for service, the deadline for a quo warranto action is
prescribed by N.C.G.S. § 1-522, the language of which is not
ambiguous and requires no construction.
2. Elections--quo warranto action--time for service--due
process
Plaintiff was not denied due process by the required time
for service of a quo warranto action. The ninety-day service
requirement is reasonable because of the importance of quickly
resolving election disputes; here, plaintiff petitioned both the
County and State Boards of Elections, filed administrative
appeals, brought action in superior court and delayed the time
for his opponent to take office for several weeks; waited until
15 February to request permission for a private quo warranto
action; the Attorney General granted that permission on 1 March,
giving plaintiff nearly three weeks to bring the action and
obtain service; and plaintiff waited until 17 March to bring the
action and did not serve the complaint until 23 March. Plaintiff
had ample opportunity to be heard and was not denied due process.
Akins Hunt & Fearson, P.L.L.C., by Donald G. Hunt, Jr., for
plaintiff-appellant.
Tharrington Smith, by Michael Crowell for defendant-appellee.
WYNN, Judge.
In November 1999, John Ellis defeated Robert Barker in the
election for mayor of Fuquay-Varina by sixteen votes. Mr. Barker
issued a verbal and written request for a recount on 5 November
1999. The Wake County Board of Elections denied his request and
Mr. Barker filed an appeal to the North Carolina Board of
Elections. After a hearing, the State Board dismissed Mr. Barker's
appeal.
Shortly thereafter, Mr. Barker filed a petition in Wake County
Superior Court. On 10 December 1999, at the petition hearing, the
trial judge ordered that Barker's case be remanded to the State
Board, and denied Barker's request for a stay of certification.
Mr. Barker filed a notice of appeal to this Court and filed motions
for a temporary stay and writ of supersedeas. This Court granted
the motion for temporary stay; however, on 21 December 1999, this
Court dissolved the stay and Mr. Ellis was sworn in as mayor.
Thereafter, Mr. Barker brought the subject quo warranto action
on 17 March 2000; however, the complaint and summons were not
served upon Mr. Ellis until 23 March 2000. The trial court
dismissed the action because the complaint and summons were not
served on Mr. Ellis within ninety days of his taking office as
required by N.C. Gen. Stat. § 1-522. Mr. Barker appealed to this
Court.
[1]First, Mr. Barker contends that the trial court erred in
concluding that the summons and complaint had not been effectively
served within ninety days of Mr. Ellis taking office. He argues
that because he complied with N.C. Gen. Stat. § 1A-1, Rules 3 and
4, the statute of limitations in this action tolled and the serviceof summons and complaint on 23 March 2000 relates back to the date
the summons was issued 17 March 2000. We disagree.
Quo warranto, which was a writ used to try title to an office,
has been abolished, and replaced by a statutory action under N.C.
Gen. Stat. § 1-515 (1999). Section 1-515 embodies the substance
of the writ and provides that:
An action may be brought by the Attorney
General in the name of the State, upon his own
information or upon the complaint of a private
party, against the party offending, in the
following cases:
(1) When a person usurps, intrudes into,
or unlawfully holds or exercises any
public office, civil or military, or any
franchise within this State, or any
office in a corporation created by the
authority of this State; or,
(2) When a public officer, civil or
military, has done or suffered an act
which, by law, makes a forfeiture of his
office.
N.C. Gen. Stat. § 1-515 (1999). N.C. Gen. Stat. § 1-522 limits
the time a quo warranto action can be brought by private citizen.
All actions brought by a private relator, upon
the leave of the Attorney General, to try the
title to an office must be brought, and a copy
of the complaint served on the defendant,
within ninety days after his induction into
the office to which the title is to be tried;
and when it appears from the papers in the
cause, or is otherwise shown to the
satisfaction of the court, that the summons
and complaint have not been served within
ninety days, it is the duty of the judge upon
motion of defendant to dismiss the action at
any time before the trial, at the cost of the
plaintiff.
N.C. Gen. Stat. § 1-522 (1999).
In this case, the record shows that Mr. Ellis was sworn in asmayor on 21 December 1999 and the complaint and summon
s were served
on Mr. Ellis on 23 March 2000, which was 93 days after he took
office. The language of N.C. Gen. Stat. § 1-522 is clear and
unambiguous and it requires no construction. See State ex rel.
Long v. Smitherman, 251 N.C. 682, 684, 111 S.E.2d 834, 836 (1960).
"When the language of a statute is plain and free from ambiguity,
expressing a single, definite, and sensible meaning, that meaning
is conclusively presumed to be the meaning which the Legislature
intended, and the statute must be interpreted accordingly." Id.
(citing School Comrs. v. Alderman, 158 N.C. 191, 73 S.E. 905
(1912)).
Mr. Barker further argues that the Long decision predates the
enactment of the Rules of Civil Procedure, and that the rules
override N.C. Gen. Stat. § 1-522. However, the Rules of Civil
Procedure expressly refute that contention: “These rules shall
govern the procedure in the superior and district courts of the
State of North Carolina in all actions and proceedings of a civil
nature except when a differing procedure is prescribed by statute.”
N.C. Gen. Stat. § 1A-1, Rule 1 (emphasis supplied). Indeed, the
deadline for service in a quo warranto action is prescribed by
statute, N.C. Gen. Stat. § 1-522, not the Rules of Civil Procedure.
Mr. Barker next argues that N.C.R. Civ. P. 6(b) provides
authority for the trial court to extend the time for service of the
complaint and summons in a private quo warranto action. However,
this argument fails because the trial court's authority to extend
the time for service exists under Rule 6(b) only when the deadlineis set “by these rules or by a notice given thereunder or by order
of court.” N.C. Gen. Stat. § 1A, 6(b). The requirement that the
complaint and summons in a private quo warranto action be served
within ninety days is not set by the Rules of Civil Procedure, but
rather by a statute enacted by the General Assembly, N.C. Gen.
Stat. § 1-522.
[2]In his final argument, Mr. Barker contends that he has
been denied due process because he did not have control over the
service of the complaint and summons within the ninety days
required by statute. This contention, too, is without merit.
“Due process means simply a procedure which is fair and does
not mandate a single, required set of procedures for all occasions;
it is necessary to consider the specific factual context and the
type of proceeding involved.” In re Anne M. Lamm, 116 N.C. App.
382, 385, 448 S.E.2d 125, 128 (1994). “At its minimum, then, due
process requires that every individual forced by the State to
resolve claims of right, duty and liability through the judicial
process be afforded a meaningful opportunity to be heard.” Wake
County ex rel. Carrington v. Townes, 53 N.C. App. 649, 651, 281
S.E.2d 765, 767 (1981).
The ninety day service requirement for a quo warranto action
is reasonable because of the importance of quickly resolving
election disputes. A quo warranto action is an expedited
proceeding because it affects title to office. See N.C. Gen. Stat.
§ 1-521. “It is the duty of the judge to expedite the trial of
these actions and to give them precedence over all others, civil orcriminal.” N.C. Gen. Stat. § 1-521. The plain language of N
.C.
Gen. Stat. § 1-522 provides explicit notice that the complaint had
to be served within 90 days.
Here, the record shows that upon learning of the election
returns, Mr. Barker initiated actions to overturn the results. He
petitioned both the County and State Boards of Elections, filed
administrative appeals, and brought actions in superior court.
After those direct actions failed, he undertook steps to bring the
present quo warranto action. Significantly, before seeking
permission from the Attorney General, Mr. Barker was able to delay
for several weeks the time in which Mr. Ellis took office. Yet, he
waited until 15 February 2000 to request permission from the
Attorney General to institute a private quo warranto action. Even
so, the Attorney General granted that permission on 1 March 2000
giving him nearly three weeks to bring the action and serve Mr.
Ellis. Instead, he waited until 17 March 2000 to bring the action
and did not serve the complaint on Mr. Ellis until 23 March 2000.
In light of these facts, Mr. Barker had ample opportunity to be
heard. We therefore hold that Mr. Barker was not denied due
process in this case.
Affirmed.
Judges TIMMONS-GOODSON and JOHN concur.
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