Appeal by plaintiffs from judgment entered 9 December 2005 by
Judge Donald L. Smith in Wake County Superior Court. Heard in the
Court of Appeals 18 September 2006.
Smith, James, Rowlett & Cohen, L.L.P., by Seth R. Cohen, for
Roy Cooper, Attorney General, by Grady L. Balentine, Jr.,
Special Deputy Attorney General, for defendant-appellee.
MARTIN, Chief Judge.
On 26 July 2005, the American Civil Liberties Union of North
Carolina, Inc., (ACLU-NC) filed a complaint against the State
seeking a declaratory judgment interpreting N.C.G.S. § 11-2, the
statute that describes the procedure for the administration of
oaths. The statute mandates that a person giving an oath shall .
. . require the party to be sworn to lay his hand upon the HolyScriptures. N.C. Gen. Stat. § 11-2. ACLU-NC sought a declaratory
judgment that the term Holy Scriptures appearing in the statute
refers not only to the Christian Bible, but also to other religious
texts including, but not limited to, the Quran, the Old Testament,
and the Bhagavad-Gita. In the alternative, ACLU-NC sought a
declaratory judgment that N.C.G.S. § 11-2 is unconstitutional in
violation of the Establishment Clause and the Free Exercise Clause
of the First Amendment to the United States Constitution and
Article 1, Section 13 of the North Carolina Constitution. U.S.
Const. amend. I; N.C. Const. art. 1, § 13. ACLU-NC submitted
affidavits from eight Jewish members of ACLU-NC who were residents
of Guilford County and eligible for jury duty, stating they would
prefer to swear on the Hebrew Bible rather than the Christian Bible
if selected as jurors or asked to testify in court. ACLU-NC
alleged that the Al-Ummil Ummat Islamic Center of Greensboro, North
Carolina, offered to donate copies of the Quran to the Guilford
County court system to use for swearing in witnesses and jurors,
but judicial officers declined the offer. ACLU-NC also alleged
that it requested that the Administrative Office of the Courts
adopt a policy allowing individuals to be sworn using religious
texts other than the Christian Bible, but the Administrative Office
of the Courts declined the request.
On 29 November 2005, plaintiff ACLU-NC amended its complaint,
adding Syidah Mateen as a plaintiff. Ms. Mateen is a Muslim
resident of Guilford County who appeared as a witness in district
court in August 2003. She requested to be sworn on the Quran, butthere was no Quran in the courtroom. Since Ms. Mateen would not
swear on the Bible, she affirmed without the use of a religious
text. Both plaintiffs sought a declaratory judgment to determine
the rights of Ms. Mateen and the members of ACLU-NC under N.C.G.S.
§ 11-2 or to declare the statute invalid.
In its answer to the amended complaint, the State moved for
dismissal of the complaint and asserted, among other defenses, that
the plaintiffs' claims were not justiciable because no actual case
or controversy existed between the parties. On 9 December 2005,
the trial court dismissed the case for lack of jurisdiction due to
a lack of justiciable controversy. Plaintiffs appealed the
The sole issue presented by this appeal is whether either
plaintiff has presented a justiciable controversy in their
complaint. We conclude the complaint is sufficient to entitle both
plaintiffs to litigate their claims under the Declaratory Judgment
Act, though we are careful to express no opinion on the merits of
On appeal, the standard of review of a trial court's dismissal
of a complaint for lack of jurisdiction is de novo
. Hatcher v.
Harrah's N.C. Casino Co.
, 169 N.C. App. 151, 155, 610 S.E.2d 210,
Plaintiffs brought their claims under the Declaratory Judgment
Act, which provides that [a]ny person . . . whose rights, status
or other legal relations are affected by a statute . . . may havedetermined any question of construction or validity arising under
[it], and obtain a declaration of rights, status, or other legal
relations thereunder. N.C. Gen. Stat. § 1-254 (2005). The
purpose of the Act is to settle and afford relief from uncertainty
and insecurity, with respect to rights, status, and other legal
relations and is to be liberally construed and administered.
Walker v. Phelps
, 202 N.C. 344, 349, 162 S.E. 727, 729 (1932).
Further, a claim brought under the Declaratory Judgment Act must
allege a justiciable controversy. City of New Bern v. New Bern-
Craven County Bd. of Educ.
, 328 N.C. 557, 559, 402 S.E.2d 623, 624-
25 (1991); Sharpe v. Park Newspapers of Lumberton, Inc.
, 317 N.C.
579, 583, 347 S.E.2d 25, 29 (1986). Nevertheless, a declaratory
judgment action may be maintained without actual wrong or loss as
its basis. McCabe v. Dawkins
, 97 N.C. App. 447, 449, 388 S.E.2d
571, 572 (1990). Accordingly, the plaintiff need not have already
sustained an injury to file suit under the Act. However, [the
Supreme Court] has held on a number of occasions that Courts have
jurisdiction to render declaratory judgments only when the
pleadings and evidence disclose the existence of an actual
controversy between parties having adverse interests in the matter
in dispute. Gaston Bd. of Realtors, Inc. v. Harrison
, 311 N.C.
230, 234, 316 S.E.2d 59, 61 (1984).
Although it is not necessary that one party have an actual
right of action against another to satisfy the jurisdictional
requirement of an actual controversy, it is necessary that
litigation appear unavoidable. Mere apprehension or the merethreat of an action or a suit is not enough. Gaston
, 311 N.C. at
234, 316 S.E.2d at 61-62 (citations omitted). Although our courts
have not defined the term unavoidable, our Supreme Court in City
of New Bern
analyzed existing case law and determined, [i]n the
three cases . . . in which we said that litigation did not appear
to be unavoidable, there was an impediment to be removed before
court action could be started. City of New Bern
, 328 N.C. at 561,
402 S.E.2d at 626. In the first of the three cases, Sharpe
plaintiffs sought interpretation of a contract provision regarding
a covenant not to compete. The Court found that plaintiffs did not
intend to compete and there [wa]s no evidence of a practical
certainty that the plaintiffs will compete with the defendant;
therefore, litigation was not unavoidable. Sharpe
, 317 N.C. at
590, 347 S.E.2d at 32. In the second of the three cases, Gaston
the Gaston Board of Realtors sought a declaratory judgment that
disciplinary proceedings they conducted against defendant were
lawful. The evidence suggested that the defendant demonstrated no
intent to sue the board over its decision in the proceedings; thus,
litigation was not unavoidable. Gaston
, 311 N.C. at 235, 316
S.E.2d at 62. In the third of the three cases, Consumers Power
plaintiffs sought a declaratory judgment determining the validity
of their contract with defendant. The Court found there is no
practical certainty that plaintiffs have the capacity or power to
perform the acts which would inevitably create a controversy and
thus litigation was not unavoidable. N.C. Consumers Power, Inc. v.
Duke Power Co.
, 285 N.C. 434, 451, 206 S.E.2d 178, 189-90 (1974). In all three cases, the circumstances indicated a lack of practical
certainty that litigation would commence if a declaratory judgment
were not rendered, which the Court identified as impediments to
litigation. See City of New Bern
, 328 N.C. at 561, 402 S.E.2d at
Our courts have determined other cases to be non-justiciable
due to other impediments, such as cases where the action in
controversy has not been performed but is merely speculative, see
Adams v. N.C. Dep't of Natural and Econ. Res.,
295 N.C. 683, 703-
04, 249 S.E.2d 402, 414 (1978); Wendell v. Long
, 107 N.C. App. 80,
83, 418 S.E.2d 825, 826 (1992), or cases where the ordinance that
is the subject of the suit has not been enacted but merely has been
proposed. See City of Raleigh v. Norfolk S. Ry. Co.,
275 N.C. 454,
464, 168 S.E.2d 389, 396 (1969). Thus, an impediment to litigation
could arise in the form of one party's lack of intent to avail
himself of his rights, one party's lack of intent to litigate, or
the speculative nature of the conflict.
When no impediment is present, litigation is unavoidable and
the case is justiciable, as in City of New Bern
, 328 N.C. at 561,
402 S.E.2d at 626. In that case, the City of New Bern contested
the validity of three statutes affecting its right to enforce
building codes and giving those rights to the County. The City of
New Bern sought to have its rights determined under the statutes.
Because the City had the right to enforce building codes before the
new statutes were enacted, the Court recognized that its change in
status allowed it to sue under the Declaratory Judgment Act. Thefacts of the case showed the City's intent to avail itself of its
rights, its intent to litigate, and the non-speculative nature of
the conflict. Accordingly, the Court was satisfied that no
impediment to litigation was present in the case and litigation was
at 561, 402 S.E.2d at 626. We now consider in
the case at hand whether any of the recognized impediments operate
to make litigation between plaintiffs ACLU-NC and Syidah Mateen and
We consider this question first with respect to plaintiff
Syidah Mateen. When Ms. Mateen appeared as a witness, she
requested that her oath to tell the truth be sworn on the holy text
of her religious faith, the Quran. When her request was denied and
because she would not swear on the Christian Bible, her options
were to affirm without the use of a religious text or be denied the
opportunity to testify. See
N.C.R. Evid. 603 (2005) (Before
testifying, every witness shall be required to declare that he will
testify truthfully, by oath or affirmation administered in a form
calculated to awaken his conscience and impress his mind with his
duty to do so.). Ms. Mateen chose to affirm to tell the truth,
and she now seeks a declaratory judgment determining whether, under
N.C.G.S. § 11-2, she has the right to swear on her holy text, the
Quran. Under these circumstances, Ms. Mateen clearly demonstrated
her intent to avail herself of her asserted right to swear on her
religious text and her intent to litigate that right. The State
has clearly demonstrated, by its refusal to permit witnesses to
swear on any text other than the Christian Bible, its intent tocontinue the course of action; thus, its actions are not
speculative. The facts do not suggest any impediments to
litigation that would make litigation avoidable in the absence of
a declaratory judgment. Finding no impediment to litigation, we
conclude that litigation between plaintiff Mateen and defendant is
We next consider whether an impediment to litigation exists
between ACLU-NC and the State. ACLU-NC submitted affidavits from
eight of its members from Guilford County, eligible for jury duty,
who are Jewish and would prefer to swear on the Old Testament
rather than the Christian Bible. ACLU-NC further alleged that it
has approximately 8,000 members throughout the state, many of whom
are of Islamic or Jewish religious faith. ACLU-NC argues that it
is not a matter of if one of its members who would prefer to
swear on a different religious text will be called to serve as a
juror or witness, but rather it is a matter of when. We agree.
ACLU-NC has sufficiently indicated that its members intend to avail
themselves of their rights, and ACLU-NC has manifested an intent to
litigate the issue. The State's policy is not speculative.
Although it cannot be predicted exactly when or how much time will
pass until a member of ACLU-NC who would prefer to swear on a holy
text other than the Christian Bible is required to take an oath in
court, there is sufficient practical certainty that such situation
will occur. Accordingly, there is no impediment to litigation
which would render litigation avoidable. Because litigation is
unavoidable, the case is justiciable under the Declaratory Judgment
Act, allowing ACLU-NC to obtain from the court an interpretation of
N.C.G.S. § 11-2 and the rights of its members under the statute. Reversed.
Judges ELMORE and JACKSON concur.
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