Appeal by plaintiff from judgment entered 21 August 2001 by
Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard
in the Court of Appeals 17 October 2002.
Paul R. Schell for plaintiff appellant.
Senior Assistant City Attorney Robert E. Hagemann for City of
Charlotte defendant appellee.
Crews & Klein, P.C., by Andrew W. Lax and Katherine Freeman,
for Lockheed Martin IMS defendant appellee.
McCULLOUGH, Judge.
On 12 April 2000, Phillip Carriker, President of plaintiff
Structural Components Int. Inc., was mailed a red-light citation
pursuant to the “Safelight” program initiated and operated by
defendants City of Charlotte and Lockheed Martin IMS. The
“Safelight” program is authorized in certain designated North
Carolina cities and towns pursuant to N.C. Gen. Stat. § 160A-300.1
(2001). The citation demanded payment of a $50.00 civil penalty,
as a vehicle registered to Mr. Carriker was photographed running a
red light. According to the “Safelight” program, if the recipient
of a citation desires a review hearing, he or she must post a bond
equal to the amount of the penalty before a hearing will bescheduled. Thus, after posting his bond, Mr. Carriker was given his
hearing on 27 June 2000. As a result of this hearing, the citation
was upheld.
On 7 April 2001, plaintiff filed suit against defendants in
Mecklenburg County Superior Court. After identifying the parties,
the complaint alleged the following:
4. Defendants THE CITY OF CHARLOTTE &
LOCKHEED MARTIN IMS operate a program called
the “Red Light Camera Program” or “Safelight.”
Under the program, the defendants have
installed automatic cameras at various
intersections around the city. The cameras
take photographs of automobiles in the
intersection when the traffic signal is red.
5. Defendant THE CITY OF CHARLOTTE has
contracted with LOCKHEED MARTIN IMS to review
the pictures and to decide which vehicles are
in violation of traffic laws. Upon
information and belief, LOCKHEED's rate of
compensation under the [contract] is
determined by the number of violators that
they identify and process. The City of
Charlotte then mails citations to the vehicle
owners whom Defendants' agents have decided
are in violation. The recipients of the
citation must then pay the $50.00 fine or be
subject to an additional monetary penalty.
After paying the fine, a recipient of a
citation may request a hearing. This hearing
is held by an officer who works for the
program.
6. On April 12th 2000, the CITY OF
CHARLOTTE mailed a citation to Plaintiff.
Phillip Carriker, Plaintiff's President and
General manager, paid the citation under
protest. In accordance with the program
rules, Plaintiff then requested a hearing to
review the citation. During the “hearing”,
the hearing officer was completely biased in
favor of the program and wholly abandoned the
judicial role in concluding that Plaintiff was
in violation of the traffic laws.
Plaintiff included two claims for relief, negligence and violation
of its civil rights. Under its negligence claim, plaintiff alleged
that:
8. Defendants were negligent in failing
to establish reasonable guidelines and in
failing to govern the Safelight camera program
in a reasonable manner and in failing to
provide a reasonable appeals process to govern
appeals taken under the program.
Accordingly, plaintiff asked for a return of its $50 bond, and also
damages in excess of $10,000 for the loss of services of its
president and general manager during the time he was dealing with
this matter. In addition, plaintiff asked for punitive damages to
the “extent that the conduct of defendant was wanton and in
reckless disregard of and with indifference to plaintiff's rights
. . ..”
Under its violation of civil rights claim, plaintiff alleged
that:
12. Defendants, in creating and
maintaining a sham safety program whose actual
motive is not improvement of public safety but
generation of revenue, have violated
Plaintiff's civil rights as follows:
(a) Its right to due process as
guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution,
(b) Its right to the equal protection of
the laws as guaranteed by the Fourteenth
Amendment to the United States Constitution,
(c) Its right to obtain witnesses in its
behalf and to have effective assistance of
counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States
Constitution,
(e) Its right not to be deprived of his
liberty by the law of the land and its right
to equal protection of the laws as guaranteed
by Article I Section 19 of the Constitution of
North Carolina;
(f) Its right to confront its accusers
and witnesses with other testimony as
guaranteed by Article I Section 23 of the
Constitution of North Carolina,
(h) Its right to a frequent recurrence
of fundamental principals . . . absolutely
necessary to preserve the blessings of liberty
as guaranteed by Article I Section 35 of the
Constitution of North Carolina,
all to its damage in a sum in excess of
$10,000.
Plaintiff also asked for punitive damages for this claim in the
same manner as the previous claim.
Defendants filed respective motions to dismiss which came for
hearing on 16 August 2001 before the Honorable L. Oliver Noble.
The trial court's order, entered 21 August 2001, found that:
The Court reviewed the Complaint and
considered authorities submitted and argument
by counsel for Plaintiff and Defendants.
Based on this review and consideration, the
Court determines that it lacks subject matter
jurisdiction to review the subject red light
citation issued to Plaintiff or the procedural
or substantive aspects of the administrative
proceeding below through this action as such
review must be conducted through certiorari.
In addition, the Court determines that
Plaintiff has failed to state a claim upon
which relief can be granted for negligence,
for a violation of civil rights, and for
punitive damages against the Defendants.
(Emphasis added.) Plaintiff appeals.
Plaintiff makes the following assignments of error: The trial
court erred (I) in granting defendants' motions to dismiss and inruling that its complaint did not constitute a challenge to the
“Safelight” camera program but was instead a review of an
administrative hearing over which the trial court did not have
jurisdiction; and (II) in ruling that the “Safelight” program meets
the constitutional requirements of due process.
I.
Initially we note that the parties in this case, both in their
respective briefs and at oral argument, have agreed that the only
issue before this Court is whether the granting of defendants' Rule
12(b)(6) motions on plaintiff's due process claim were proper.
Plaintiff contended that it was error for the trial court to
grant defendants' motions to dismiss on the basis that it did not
have subject matter jurisdiction to review plaintiff's citation
because such review must be conducted through certiorari to the
trial court. Defendants now concede that the trial court had
subject matter jurisdiction over plaintiff's lawsuit because it was
not a challenge to its own citation or a request for review of an
administrative hearing, but a constitutional challenge to the
entire “Safelight” camera program.
Defendants assert that plaintiff has waived all theories of
recovery, other than its due process claim, because its assignments
of error and arguments in brief to this Court have failed to
preserved them according to N.C.R. App. P. 28(a). Plaintiff's
complaint alleged two causes of action: Negligence and Violation
of Civil Rights. The violation of civil rights cause of action
included the theories of due process (perhaps substantive andprocedural) under both federal and state constitutions, equal
protection under both federal and state constitutions, and frequent
recurrence of fundamental principals from the North Carolina
Constitution. In addition, plaintiff called for punitive damages
under both causes of action. In the record, plaintiff's
assignments of error are as follows:
1. Plaintiff/Appellant assigns as error
the Trial Court's granting of Appellees'
motions to dismiss and the ruling that
Appellant's complaint did not constitute a
challenge to the “Safelight” camera program
but was instead a review of an administrative
hearing over which the trial court did not
have jurisdiction.
2. Plaintiff/Appellant assigns as error
the trial court's ruling that the “Safelight”
program meets the constitutional requirements
of due process.
Rule 28(a) provides:
(a) Function. The function of all briefs
required or permitted by these rules is to
define clearly the questions presented to the
reviewing court and to present the arguments
and authorities upon which the parties rely in
support of their respective positions thereon.
Review is limited to questions so presented in
the several briefs. Questions raised by
assignments of error in appeals from trial
tribunals but not then presented and discussed
in a party's brief, are deemed abandoned.
Similarly, questions properly presented for
review in the Court of Appeals but not then
stated in the notice of appeal or the
petition, accepted by the Supreme Court for
review, and discussed in the new briefs
required by Rules 14(d)(1) and 15(g)(2) to be
filed in the Supreme Court for review by that
Court are deemed abandoned.N.C.R. App. P. 28 (2002). Thus, plaintiff has abandoned all
theories alleged in its complaint other than its due process claim.
We accordingly only address that issue.
II.
Plaintiff contends that the trial court erred by ruling its
complaint failed to state a claim for civil rights violations,
specifically due process.
“A motion to dismiss under N.C. Gen. Stat. §
1A-1, Rule 12(b)(6) tests the legal
sufficiency of the complaint, which will be
dismissed if it is completely without merit.”
The main inquiry is “whether, as a matter of
law, the allegations of the complaint, treated
as true, are sufficient to state a claim upon
which relief may be granted under some legal
theory[.]”
Huntington Properties, LLC v. Currituck County, ___ N.C. App. ___,
___, 569 S.E.2d 695, 699 (2002) (citations omitted).
A complaint is not sufficient to withstand a
motion to dismiss if an insurmountable bar to
recovery appears on the face of the complaint.
Such an insurmountable bar may consist of an
absence of law to support a claim, an absence
of facts sufficient to make a good claim, or
the disclosure of some fact that necessarily
defeats the claim.
Al-Hourani v. Ashley, 126 N.C. App. 519, 521, 485 S.E.2d 887, 889
(1997) (citations omitted).
“Procedural due process restricts governmental actions and
decisions which 'deprive individuals of “liberty” or “property”
interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment.'”
Peace v. Employment Sec. Comm'n, 349N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting
Mathews v.
Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 31 (1976)).
Plaintiff's complaint indeed fails to state a claim upon which
relief can be granted. What remains of the complaint are the three
factual allegations (4, 5 & 6) and its claim that its procedural
due process rights were violated by defendants “in creating and
maintaining a sham safety program whose actual motive is not
improvement of public safety but generation of revenue . . ..”
Significantly, plaintiff in its prayer for relief requests damages
in excess of $10,000 for this alleged violation. Under current
North Carolina law, such a cause of action does not exist. One
cannot recover monetary damages for a violation of procedural due
process rights when one claims that a civil penalty is imposed
pursuant to a program that does not provide adequate due process
and is unconstitutional.
Plaintiff had other proper avenues of challenging the
“Safelight” camera program for violation of its due process rights.
N.C. Gen. Stat. § 160A-300.1(c)(4) provides that, “[t]he
municipality shall institute a nonjudicial administrative hearing
to review objections to citations or penalties issued or assessed
under this section.” N.C. Gen. Stat. § 160A-300.1(c)(4) (2001).
The Charlotte City Ordinance 966, § 14-226,
et seq., establishing
the city's traffic control photographic system establishes such an
appeal process. N.C. Gen. Stat. § 14-230 authorizes the City of
Charlotte Department of Transportation to set up an administrative
process to hear appeals, in which a person receiving a citationmust post a bond equal to the amount of the fine ($50.00) before a
hearing can be scheduled. This procedure was followed in the
present case. In addition, to this procedure, the city ordinance
goes a step further: “The hearing officer's decision is subject to
review in the Superior Court of Mecklenburg County by proceedings
in the nature of certiorari.” Plaintiff failed to utilize this
procedure and opted to file this independent lawsuit in superior
court, as the trial court noted in its order of dismissal. We
believe that a petition for certiorari to the superior court was
the proper avenue to challenge the constitutionality of the statute
and ordinances that plaintiff was allegedly aggrieved by.
Challenges to the constitutionality of the laws one is charged
with violating are best brought within the context of one's own
case. Few alternatives to this approach are available. The most
prominent alternative is to file an action under the Declaratory
Judgment Act, N.C. Gen. Stat. § 1-253,
et seq. (2001). However,
our Supreme Court recently stated that:
[D]eclaratory judgment is not generally
available to challenge the constitutionality
of a criminal statute.
See, e.g., [Edmisten
v.] Tucker, 312 N.C. [326] at 349, 323 S.E.2d
[294] at 309 (“It is widely held that a
declaratory judgment is not available to
restrain enforcement of a criminal
prosecution,” especially where a criminal
action is already pending.);
Jernigan v.
State, 279 N.C. 556, 560, 184 S.E.2d 259, 263
(1971) (“A declaratory judgment is a civil
remedy which may not be resorted to to try
ordinary matters of guilt or innocence.”);
Chadwick v. Salter, 254 N.C. 389, 394, 119
S.E.2d 158, 162 (1961) (“Ordinarily, the
constitutionality of a statute . . . will not
be determined in an action to enjoin itsenforcement.”). Nevertheless, a declaratory
judgment action to determine the
constitutionality of a criminal statute prior
to prosecution is not completely barred. For
example, in
Calcutt v. McGeachy, 213 N.C. 1,
195 S.E. 49 (1938), the plaintiff, a
manufacturer and distributer of amusement
machines, was threatened with prosecution
under a statute making possession of slot
machines illegal and authorizing their seizure
by authorities.
Id. at 4, 195 S.E. at 49-50.
The Court, noting that the plaintiff's action
was proper under the Declaratory Judgment Act,
determined that the statute in question was
constitutional.
Id. at 4, 9, 195 S.E. at 49,
54.
This Court has enunciated what a
plaintiff must show in order to seek a
declaratory judgment that a criminal statute
is unconstitutional.
The key to whether or not
declaratory relief is available to
determine the constitutionality of a
criminal statute is whether the
plaintiff can demonstrate that a
criminal prosecution is imminent or
threatened, and that he stands to
suffer the loss of either
fundamental human rights or property
interests if the criminal
prosecution is begun and the
criminal statute is enforced.
Tucker, 312 N.C. at 350, 323 S.E.2d at 310.
Malloy v. Cooper, 356 N.C. 113, 117, 565 S.E.2d 76, 79 (2002)
(holding that Declaratory Judgment Act was available to challenge
statute where District Attorney indicated in writing that
prosecution was imminent). Plaintiff's complaint makes no showing
that he is likely to be re-cited for future “Safelight” violations.
In any event, a direct suit under this state's constitution for
damages is not authorized. This Court has recognized that:
In
Corum v. University of North Carolina,
330 N.C. 761, 413 S.E.2d 276,
cert. denied,
506 U.S. 985, 121 L. Ed. 2d 431 (1992), our
Supreme Court noted:
This Court has recognized a direct
action under the State Constitution
against state officials for
violation of rights guaranteed by
the Declaration of Rights.
Having
no other remedy, our common law
guarantees plaintiff a direct action
under the State Constitution . . .
[Moreover, w]hen called upon to
exercise its inherent constitutional
power to fashion a common law remedy
for a violation of a particular
constitutional right, however, the
judiciary must recognize two
critical limitations.
First, it
must bow to established claims and
remedies where these provide an
alternative to the extraordinary
exercise of its inherent
constitutional power. Second, in
exercising that power, the judiciary
must minimize the encroachment upon
other branches of government -- in
appearance and in fact -- by seeking
the least intrusive remedy available
and necessary to right the wrong.
Id. at 783-84, 413 S.E.2d at 290-91 (citations
omitted) (emphasis added).
Hanton v. Gilbert, 126 N.C. App. 561, 570-71, 486 S.E.2d 432, 438-
39,
disc. review denied, 347 N.C. 266, 493 S.E.2d 454 (1997).
As the present statutory scheme provides an adequate method
for challenging the legality of the “Safelight” program, the
plaintiff may not seek relief through an independent action.
Accordingly, we affirm the trial court's dismissal of plaintiff's
complaint pursuant to Rule 12(b)(6).
Affirmed.
Judges CAMPBELL and THOMAS concur.
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