An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1177

NORTH CAROLINA COURT OF APPEALS

Filed: 20 July 2004

IN THE MATTER OF THE
CALDWELL COUNTY ELECTION
PROTESTS OF ROGER LEE                Wake County
HUTCHINGS AND WILLIAM F.                Nos. 03 CVS 841 & 984
WALL, JR.

    Appeals by Protestor Roger Lee Hutchings and Protestor William F. Wall, Jr. from judgment filed 21 February 2003 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 19 May 2004.

    Tharrington Smith, L.L.P., by Michael Crowell and Deborah R. Stagner; and Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Forrest A. Ferrell and Warren A. Hutton, for protestor-appellant Roger Lee Hutchings.

    Todd, Vanderbloemen & Brady, P.A., by Bruce W. Vanderbloemen; and Wallace, Creech & Sarda, L.L.P., by John R. Wallace and Joseph A. Newsome, for protestor-appellant William F. Wall, Jr.

    Attorney General Roy Cooper, by Special Deputy Attorney General Susan K. Nichols, for respondent-appellee State Board of Elections.

    Respess & Jud, by W. Wallace Respess, Jr.; and Marshall Hurley, PLLC, by Marshall Hurley, for intervenor respondent-appellees Gary Clark and Tim Sanders.


    BRYANT, Judge.

    Roger Lee Hutchings, Democratic candidate for the 2002 Caldwell County Sheriff's election, and William F. Wall, Jr., Democratic candidate for one of two seats on the Caldwell County Board of Commissioners, appeal a judgment filed 21 February 2002 affirming the State Board of Elections order denying a newelection.
    Between 17 October and 2 November 2002, Caldwell County conducted “early voting” for qualified voters at the Board of Elections Office in Lenoir, North Carolina. The general election was not officially held until 5 November 2002. Candidates in the sheriff's election were Roger Hutchings, a Democrat, and Gary Clark, a Republican. Upon tabulation of the votes, Clark was victorious, receiving 11,588 votes (51.58%). Hutchings only received 10,842 votes (48.34%), losing by a margin of 746 votes.
    Petitioner, William F. Wall, Jr., Democratic candidate for one of the two seats on the Caldwell County Board of Commissioners, also lost his election to Republican opponents. The Republican candidates Tim Sanders and Alden Edsel Starnes received 12,196 votes (34.76%) and 11,806 votes (33.65%), respectively, while Wall received only 11,083 votes (31.59%).
    On 12 November 2002, Hutchings and Wall filed separate election protests with the Caldwell County Board of Elections (County Board) alleging irregularities or misconduct in the election process sufficient to cast doubt on the results of the election. The petitions specifically alleged registered voters had been paid to cast votes in violation of N.C. Gen. Stat. § 163- 275(2). The County Board consolidated the cases which were heard beginning 2 December 2002.
     After hearing testimony from fifty-nine (59) witnesses, the County Board made sixty-one findings of fact, including the following pertinent findings in its 17 December 2002 order:        55. The evidence in its totality, both direct and circumstantial, constitutes substantial evidence of widespread buying of votes, either for straight Republican votes or for Gary Clark in the Caldwell County Sheriff's race, in Caldwell County during the 2002 general election. From the testimony of numerous witnesses, the Board finds that it was common knowledge in all of the predominately African- American communities that anyone could get paid for voting a straight Republican ballot or by voting for Clark.

        . . . .

        61. This Board cannot conclude the actual number of irregularities which occurred. It does conclude that the individuals involved were not all African-Americans, but included others of different races and ethnic origins. The evidence does suggest that the number of voting irregularities of one kind or another were substantial.

The County Board then concluded:
        With regard to the election protest of Roger Lee Hutchings, candidate for Caldwell County Sheriff [and William F. Wall, Jr., candidate for Caldwell County Commissioner] there is substantial evidence to believe that a violation of the election law or other irregularity or misconduct did occur and that it was sufficiently serious to cast doubt on the apparent results of the election.

The County Board forwarded its order to the State Board of Elections (State Board) for further action pursuant to N.C. Gen. Stat. § 163-182.10(d)(2)(e)(3).
    The State Board, adopting the findings of the County Board in its entirety, voted by a 3-2 margin in favor of a new election. However, N.C. Gen. Stat. § 163-182.13(a) requires an agreement of four State Board members before a new election can be ordered. On 8 January 2003, the State Board denied a new election for theoffices of Caldwell County Sheriff and Caldwell County Commissioner and directed the winners of the 5 November 2002 election to be duly certified.
    Hutchings and Wall appealed the decision of the State Board and a hearing was held at the 13 February 2003 session of Wake County Superior Court with the Honorable Donald W. Stephens presiding. By order dated 21 February 2003, the superior court affirmed the State Board's order denying a new election and certifying the winners of the 5 November election. Petitioners filed their notice of appeal to this Court on 24 February 2003. The superior court subsequently denied a motion to stay certification of the election pending appeal; no writ of supersedeas was sought in this Court. On 26 February 2003, Clark and Sanders were sworn into office respectively as Sheriff of Caldwell County and Caldwell County Commissioner.

_________________________

    This appeal raises several issues regarding the validity of the general election in Caldwell County as to the offices of Sheriff and County Commissioner, including whether the superior court order affirming the decision of the State Board to deny a new election was supported by substantial evidence. Because we find this appeal to be moot, we do not address the issues on their merits.
    Our Supreme Court has stated that: The doctrine “[t]hat a court will not decide a 'moot' case[,] is recognized in virtually every American jurisdiction. . . . In state courts the exclusionof moot questions from determination is not based on a lack of jurisdiction but rather represents a form of judicial restraint.” In re Peoples, 296 N.C. 109, 147-48, 250 S.E.2d 890, 912 (1978).
    The doctrine of mootness provides:
        [w]henever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.

North Carolina Press Ass'n v. Spangler, 87 N.C. App 169, 170, 360 S.E.2d 138, 139 (quoting Peoples, 296 N.C. at 147-48, 250 S.E.2d at 912). “If the issues before a court or administrative body become moot at any time during the course of the proceedings, the usual response should be to dismiss the action.” Peoples, 296 N.C. at 148, 250 S.E.2d at 912.
    Here, the question in controversy involves the correctness of the State Board's order denying a new election. Hutchings and Wall in challenging the validity of the general election seek to have the original results voided and a new election ordered. Because the elected officials Clark and Sanders have been certified and sworn into the offices of sheriff and county commissioner pursuant to the order of the superior court, a reversal by this Court would be of no avail.
    N.C. Gen. Stat. § 163-182.13, gives the State Board authority to order new elections in certain circumstances upon a vote of four of its members. N.C.G.S. § 163-182.13 (2003). If the State Board denies a new election and that decision is appealed to superiorcourt, “certification shall be issued . . . after entry of a final order . . . , unless that court or an appellate court orders otherwise.” N.C.G.S. § 163-182.15 (2003). “The declaration of election as contained in the certificate conclusively settles prima facie the right of the person so ascertained and declared to be elected to be inducted into, and exercise the duties of the office.” Cohoon v. Swain, 216 N.C. 317, 319, 5 S.E.2d 1, 3 (1939). There is no statutory authority vesting the State Board with the power to revoke a certificate of election once it has already been issued. Even if this Court were to reverse the superior court's order in favor of Hutchings and Wall, the legal effect would not provide the relief they are seeking.
    For the foregoing reasons, we find this appeal to be moot and it is therefore dismissed.
    Dismissed.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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