                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-1369

                                Filed: 21 June 2016

Wake County, No. 14 CVS 12648

STELLA ANDERSON, PAM WILLIAMSON, MARIANNE CLAWSON, ALAINA
DOYLE, LAUREN LARUE JOYNER, IAN O’KEEFE, AND DAVID SABBAGH,
Petitioners

              v.

THE NORTH CAROLINA STATE BOARD OF ELECTIONS, Respondent


        Appeal by respondent from order entered 13 October 2014 by Judge Donald W.

Stephens in Wake County Superior Court. Heard in the Court of Appeals 12 August

2015.


        Bailey & Dixon, LLP, by Sabra J. Faires and William R. Gilkeson, Jr., for
        petitioner-appellees.

        Attorney General Roy Cooper, by Special Deputy Attorney General Katherine A.
        Murphy, for respondent-appellant.


        CALABRIA, Judge.


        Respondent North Carolina State Board of Elections (“the Board”) appeals

from the superior court’s order requiring it to adopt an early voting plan in Watauga

County that included at least one site on Appalachian State University’s campus

during the 2014 general election. Because we hold that this appeal is moot, it must

be dismissed.
                        ANDERSON V. N.C. BD. OF ELECTIONS

                                   Opinion of the Court



                                   I. Background

      Pursuant to our General Statutes, registered voters in North Carolina may, as

an alternative to voting in person at their assigned precincts on Election Day, vote by

mail-in absentee ballot. N.C. Gen. Stat. §§ 163-226, -227.2 (2015). Registered voters

may also cast ballots through a procedure called “one-stop absentee voting,” which is

also known as “early voting.” Id. § 163-227.2 (2015).

      From 2006 until its 2013 municipal election, Watauga County elections

included an early voting and an Election-Day voting site in Boone on the Appalachian

State University campus (“ASU”).       Subsequently, the Watauga County Board of

Elections (“WCBOE”) made numerous changes and departed from the customary

voting sites. Specifically, the early voting plan for the 2014 primary did not include

any Boone site other than the required site at the WCBOE office and four sites located

in rural parts of Watauga County

      On 23 July 2014, the WCBOE met to adopt an early voting plan. (R. p. 1112)

The three-member board submitted two early voting plans for the 2014 general

election. One plan included an early voting site on ASU campus (“minority plan”)

and the other plan, (“the majority plan”) had five sites but did not include an early

voting site on ASU’s campus.       Although the WCBOE voted on the competing

proposals, they did not reach a unanimous agreement on an early voting plan for

Watauga County.



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      N.C. Gen. Stat. § 163-227.2(g) provides that

             [i]f a county board of elections . . . has been unable to reach
             unanimity in favor of a Plan, a member or members of that
             county board of elections may petition the State Board of
             Elections to adopt a plan for it. If petitioned, the State
             Board may also receive and consider alternative petitions
             from another member or members of that county board.
             The State Board of Elections may adopt a Plan for that
             county. The State Board, in that plan, shall take into
             consideration factors including geographic, demographic,
             and partisan interests of that county.

N.C. Gen. Stat. § 163-227.2(g) (2015). At the time of the 2014 general election,

subsection 163-227.2(g) further provided that the Board could make available a plan

that did not offer early voting at the county board of elections office, but “only if the

Plan include[d] at least one site reasonably proximate to the county board of elections

office and the . . . Board [found] that the sites in the Plan as a whole provide[d]

adequate coverage of the county’s electorate.” Id. § 163-227.2(g) (2014).

      Since the WCBOE members were unable to adopt a unanimous early voting

plan, they petitioned the Board to adopt a plan for Watauga County pursuant to

subsection 163-227.2(g). As a result, the competing proposals for the minority and

majority plans were submitted for the Board’s consideration.           After the Board

considered proposals at a 21 August 2014 hearing, it adopted the WCBOE’s majority

plan without significant changes. On 29 August 2014, the Board memorialized its

decision in a form letter addressed to the WCBOE’s Director.




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      On 19 September 2014, seven registered voters in Watauga County

(“Petitioners”) filed a Petition for Judicial Review in Wake County Superior Court.

The petition requested that the superior court determine whether the Board abused

its discretion by adopting the majority plan for Watauga County, and it was filed

pursuant to N.C. Gen. Stat. 163-22(l), which provides:

               Notwithstanding any other provision of law, in order to
               obtain judicial review of any decision of the State Board of
               Elections rendered in the performance of its duties or in the
               exercise of its powers under this Chapter, the person
               seeking review must file his petition in the Superior Court
               of Wake County.

N.C. Gen. Stat. § 163-22(l) (2015). Petitioners alleged that the Board made no

findings to explain how it took the geographic, demographic, and partisan interests

of Watauga County into consideration. They also alleged that the Board violated

Article I, Section 19 and Article VI, Section I of the North Carolina Constitution and

the 14th and 26th Amendments to the United States Constitution by erecting barriers

for voters aged 18 to 25. Based on these allegations, petitioners asked the court to

remand the majority plan to the Board to enter findings and explain its bases for

adopting it.

      In response, the Board filed a motion to dismiss the petition on seven

enumerated grounds, the majority of which challenged the trial court’s subject matter

jurisdiction to hear and rule on the petition. According to the Board, the petition was

improperly brought because it did not seek judicial review of either a “contested case”


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                                   Opinion of the Court



brought under Chapter 150B of North Carolina’s General Statutes or a decision of

the Board “made in its quasi-judicial capacity under Chapter 163 of the General

Statutes.” Rather, the Board contended, the petition impermissibly sought review of

the Board’s decision, which was made pursuant to subsection 163-227.2(g) and “in its

supervisory capacity over the [WCBOE].” After conducting a hearing on the Board’s

motion, the superior court entered an order on 13 October 2014. The order concluded

that “[u]nder the unique circumstances of this case, [the Board’s] early voting plan

for [Watauga County was] subject to review by the Wake County Superior Court

under [subsection] 163-22(l).” After reviewing the entire record before it, the superior

court could find “no other intent from [the WCBOE’s majority plan] other than to

discourage student voting,” and as a result, the court concluded that the plan “r[ose]

to the level of a constitutional violation of [students’] right to vote.” The superior

court’s order also denied the Board’s motion to dismiss in its entirety and remanded

the case for the Board to adopt an early voting plan for Watauga County for the 2014

November general election that included at least one voting site on the ASU campus.

The Board appeals.

                                     II. Analysis

      A. Mootness and the Generally Applicable Law

      Since the 2014 election is over and petitioners were granted the relief they

sought, we must address whether the issues presented by this appeal are moot.



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                                  Opinion of the Court



      “A case is ‘moot’ when a determination is sought on a matter which, when

rendered, cannot have any practical effect on the existing controversy.” Roberts v.

Madison Cnty. Realtors Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)

(citation omitted). For well over a century, our state courts and the federal courts

have largely refused to address questions deemed moot. See, e.g., Crawley v. Woodfin,

78 N.C. 4, 6 (1878); Mills v. Green, 159 U.S. 651, 653, 40 L. Ed. 293, 293-94 (1895).

While the mootness doctrine has been formulated in different ways, it must be

understood as a core concept of justiciability, a general term which refers to whether

a legal controversy is “appropriate or suitable” for judicial adjudication. Black’s Law

Dictionary 696 (9th ed. 2009); see also Sunamerica Financial Corp. v. Bonham, 328

N.C. 254, 257, 400 S.E.2d 435, 437 (1991) (“A justiciable issue has been defined as an

issue that is ‘real and present as opposed to imagined or fanciful.’ ” (quoting K & K

Dev. Corp. v. Columbia Banking Fed. Sav. & Loan, 96 N.C. App. 474, 479, 386 S.E.2d

226, 229 (1989))) (citations omitted). However, whether a moot case is appropriate

for judicial disposition may depend largely upon the tribunal that confronts it.

      In the federal context, mootness was generally applied as though it were a

prudential or discretionary doctrine until the mid-twentieth century. Honig v. Doe,

484 U.S. 305, 330, 608, 98 L. Ed. 2d 686, 711 (1988) (Rehnquist, J. concurring) (“[I]t

seems very doubtful that the earliest case I have found discussing mootness, Mills v.

Green, . . . was premised on constitutional constraints[.]”). However, in 1964, The



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United States Supreme Court recognized mootness as a constitutional limitation on

the jurisdiction of federal courts, which pursuant to Article III, Section 2 of the United

States Constitution may decide only actual, ongoing cases and controversies. Liner

v. Jafco, Inc., 375 U.S. 301, 306 n.3, 11 L. Ed. 2d 347, 351 n.3 (1964) (“Our lack of

jurisdiction to review moot cases derives from the requirement of Article III of the

Constitution under which the exercise of judicial power depends upon the existence

of a case or controversy.”). The mootness doctrine is also rooted in the prohibition

against advisory opinions. North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d

413, 415 (1971). For these reasons, “Article III denies federal courts the power ‘to

decide questions that cannot affect the rights of litigants in the case before them,’ ”

while confining them “to resolving ‘real and substantial controvers[ies] admitting of

specific relief through a decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical state of facts.’ ” Lewis v.

Cont’l Bank Corp., 494 U.S. 472, 477, 108 L. Ed. 2d 400, 411 (1990) (quoting Rice, 404

U.S. at 246, 30 L. Ed. 2d at 415).               All told, the constitutional jurisdictional

underpinnings of mootness are now well established,1 e.g., Honig, 484 U.S. at 317-18,


       1 We note that courts and treatises have raised significant questions about the constitutional
model of mootness in federal courts. Judges and scholars alike have argued that if the mootness bar
was truly jurisdictional in nature, courts would have no authority to hear moot cases, even where
prudential factors favored doing so. See, e.g., Honig, 484 U.S. at 330, 98 L. Ed. 2d at 711 (1988)
(Rehnquist, J. concurring) (“If our mootness doctrine were forced upon us by the case or controversy
requirement of Art. III itself, we would have no more power to decide lawsuits which are ‘moot’ but
which also raise questions which are capable of repetition but evading review than we would to decide
cases which are ‘moot’ but raise no such questions.”); 13B Charles Alan Wright, Arthur R. Miller &



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98 L. Ed. 2d at 703, and the doctrine presents issues of justiciability at all stages of

judicial proceedings. Steffel v. Thompson, 415 U.S. 452, 459 n.10, 39 L. Ed. 2d 505,

515 n.10 (1974) (“The rule in federal cases is that an actual controversy must be

extant at all stages of review, not merely at the time the complaint is filed.”).

       By contrast, in state courts “[t]he exclusion of moot questions . . . represents a

form of judicial restraint.” In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912

(1978).    This principle of restraint does not implicate jurisdiction but rather it is

partially grounded in the notion that “ ‘[j]udicial resources should be focused on

problems which are real and present rather than dissipated . . ., hypothetical[,] or

remote questions[.]’ ” Crumpler v. Thornburg, 92 N.C. App. 719, 722, 375 S.E.2d 708,

710 (1989) (citation omitted). In particular, “courts will not entertain or proceed with

a cause merely to determine abstract propositions of law.” In re Peoples, 296 N.C. at

147, 250 S.E.2d at 912. Our state-court mootness doctrine is also justified by the

notion that a judicial tribunal’s “inherent function . . . is to adjudicate genuine

controversies between antagonistic litigants with respect to their rights, status, or

other legal relations.” Angell v. City of Raleigh, 267 N.C. 387, 389-90, 148 S.E.2d 233,



Edward H. Cooper, Federal Practice & Procedure § 3533.1 (3d ed. 1998) (“There is reason to wonder
whether much reliance should be placed on constitutional concepts of mootness when . . . all ordinary
needs can be met by the discretionary doctrines. The Article III approach is nonetheless firmly
entrenched, and must be reckoned the major foundation of current doctrine.”).




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235 (1966) (citation and internal quotation marks omitted). Therefore, as a general

rule, “[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[.]” In re Peoples, 296 N.C. at 147,

250 S.E.2d at 912.

      Despite the differences in its origins at the state and federal levels, the

mootness doctrine’s limits “are articulated almost identically in the federal courts and

the courts of this State.” Thomas v. N.C. Dep’t of Human Res., 124 N.C. App. 698,

705, 478 S.E.2d 816, 820 (1996) (citation omitted). Thus, federal treatment of the

mootness doctrine may be instructive to state courts when they are confronted with

moot questions in a variety of contexts.

      Here, the trial court’s order required the Board to adopt a plan that included

the location of an early voting site on ASU’s campus during the 2014 election. Since

the petitioners were granted the relief they sought, and the 2014 election has come

and gone, all parties agree that this case is technically moot. In addition, neither

party contends that the substantive legal issue in this case—whether the WCBOE’s

majority plan infringed the constitutional rights of students—is still alive. The Board,

however, asserts that an important procedural question has survived on appeal.

Specifically, the Board argues, and asks this Court to decide, that the superior court

does not have jurisdiction under subsection 163-22(l) to conduct a judicial review of a



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“decision made by [the] Board in the exercise of its supervisory capacity over county

boards of elections.”

        B. Capable of Repetition, Yet Evading Review Exception to Mootness

        Although “the general rule is that an appeal presenting a question which has

become moot will be dismissed[,]” id. (citation and internal quotation marks omitted),

courts may consider moot cases falling within one of several limited exceptions to the

doctrine. See In re Investigation Into the Injury of Brooks, 143 N.C. App. 601, 604,

548 S.E.2d 748, 751 (2001) (recognizing “at least five exceptions to the general rule

that moot cases should be dismissed”). The Board contends that the procedural issue

it has raised under subsection 163-22(l) falls within two established exceptions to

mootness. The Board first argues that we are permitted to address the merits of this

otherwise moot appeal because the case is “ ‘capable of repetition, yet evading

review.’ ”2 Shell Island Homeowners Ass’n, Inc. v. Tomlinson, 134 N.C. App. 286, 292,


        2    We note that the United States Supreme Court has repeatedly described mootness as “ ‘the
doctrine of standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence (mootness).’ ”
Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22, 137 L. Ed. 2d 170, 193 n.22 (1997)
(quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 63 L. Ed. 2d 479, 491 (1980) (citation
omitted)). However, the Court has also noted that this description of mootness “is not comprehensive.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 145 L. Ed. 2d 610,
633 (2000). Thus, in applying well established exceptions to the mootness doctrine, courts should not
confuse mootness with standing: The “[s]tanding doctrine functions to ensure, among other things,
that the scarce resources of the federal courts are devoted to those disputes in which the parties have
a concrete stake. In contrast, by the time mootness is an issue, the case has been brought and litigated,
often . . . for years. Id. at 191, 145 L. Ed. 2d at 634; see also Renne v. Geary, 501 U.S. 312, 320, 111 S.
Ct. 2331, 2338, 115 L. Ed. 2d 288, 301 (1991) (“[T]he mootness exception for disputes capable of
repetition yet evading review . . . will not revive a dispute which became moot before the action
commenced.”) (internal citation omitted).



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517 S.E.2d 401, 405 (1999); see also Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir.

2006) (“A case is not moot . . . if a party can demonstrate that the apparent absence

of a live dispute is merely a temporary abeyance of a harm that is ‘capable of

repetition, yet evading review.’ ” (quoting Mellen v. Bunting, 327 F.3d 355, 364 (4th

Cir. 2003)). We disagree.

      The “ ‘capable of repetition, yet evading review’ ” exception applies when: “ ‘(1)

the challenged action [is] in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there [is] a reasonable expectation that the same

complaining party would be subjected to the same action again.’ ” 130 of Chatham,

LLC v. Rutherford Electric Membership Corp., __ N.C. App. __, __, 771 S.E.2d 920,

926 (2015) (citation omitted). Since the parties agree that this case satisfies the first

prong, we see no reason to address it: the majority of election cases are unique in

that the controversy’s endpoint, the election itself, is firmly established and beyond

the control of litigants. As to the second prong, the United States Supreme Court has

specified “that a mere physical or theoretical possibility [is not] sufficient to satisfy

the test . . . . Rather, . . . there must be a ‘reasonable expectation’ or a ‘demonstrated

probability’ that the same controversy will recur involving the same complaining




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party.”3 Murphy v. Hunt, 455 U.S. 478, 482, 71 L. Ed. 2d 353, 357 (1982) (citation

omitted).     The Court has further stated that the capable-of-repetition exception

“applies only in exceptional situations.” City of Los Angeles v. Lyons, 461 U.S. 95,

109, 75 L. Ed. 2d 675, 689 (1983). For the reasons that follow, we cannot discern a

reasonable expectation, much less a demonstrated probability, that the same

complaining party will again be subject to the same action.

        While the term “same action” may not hold an inflexible meaning,4 it is clear

that the capable-of-repetition exception requires specificity between a case deemed

moot and one that may arise in the future. See, e.g., Sullivan v. Wake Cnty. Bd. of

Educ., 165 N.C. App. 482, 488, 598 S.E.2d 634, 638 (2004) (“There is no reasonable

expectation that the same complaining party[—parents who challenged their son’s


        3  The United States Supreme Court has determined that a “reasonable expectation may be
satisfied by something less than a “demonstrated probability.” Honig, 484 U.S. at 319 n.6, 98 L. Ed.
2d at 704 n.6 (citing “numerous cases” where the Court “found controversies capable of repetition based
on expectations that, while reasonable, were hardly demonstrably probable”). However, in Honig,
Justice Scalia argued that the majority’s reasoning on this point was circular, and he insisted that for
there to be a “reasonable expectation” that a party will be subjected to the same action again, the
relevant event must be a “demonstrated probability.” Id. at 334, 108 S. Ct. 592, 610, 98 L. Ed. 2d at
714 (Scalia, J, dissenting) (“It is obvious that in saying ‘a reasonable expectation or a demonstrated
probability’ we have used the conjunction in one of the latter, or nondisjunctive, senses. Otherwise
(and according to the Court’s exegesis), we would have been saying that a controversy is sufficiently
likely to recur if either a certain degree of probability exists or a higher degree of probability exists.”).
It appears that North Carolina courts have not addressed this issue (or even included the
“demonstrated probability” language in the capable-of-repetition analysis). In any event, here, the
Board has failed to meet either threshold.

        4 We note that this Court recently held the capable-of-repetition exception “does not require
[an examination] of the exact same action occurring in the future[;]” rather, it allows consideration of
“similarly situated parties[.]” Cumberland Cnty. Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human
Servs., __ N.C. App. __, __, 776 S.E.2d 329, 335 (2015). However, the holding in Cumberland Cnty.
has no bearing on our analysis in this case. As explained below, the Board completely reinvents the
“same action” requirement of the exception, and it cannot be considered the “same complaining party.”

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elementary school assignment—]would be subject to the same factors used by the

school board in making its assignment/transfer determinations for any school year

beyond 2002-2003.”) (emphasis added); Boney Publishers, Inc. v. Burlington City

Council, 151 N.C. App. 651, 654, 566 S.E.2d 701, 704 (2002) (newspaper publisher’s

action against city council for alleged violations of public records laws was technically

moot, but there was “a reasonable likelihood that [the council], in considering the

acquisition of other property for municipal purposes, could repeat the conduct which

is at issue here, subjecting [the publisher] to the same action”) (emphasis added);

Crumpler, 92 N.C. App. at 724, 375 S.E.2d at 712 (case not capable of repetition where

it had “been more than two years since plaintiff filed [his] suit and he ha[d] yet to be

arrested or refused a permit for a similar demonstration”). It is equally clear that the

term ordinarily refers to a decision, practice, or other harm that was challenged and

litigated by a plaintiff, or a “complaining party.” Although North Carolina courts

have not squarely addressed this issue, the United States Supreme Court has

specified that the capable-of-repetition doctrine “applies . . . generally only where the

named plaintiff can make a reasonable showing that he will again be subjected to the

alleged illegality.” Lyons, 461 U.S. at 109, 75 L. Ed. 2d 689 (emphasis added). Thus,

as a general rule, the “same action” must be understood as referring to the conduct

that gave rise to the plaintiff’s (or complainant’s) claims in the relevant proceeding

or lawsuit. See Lux v. Judd, 651 F.3d 396, 401 (4th Cir. 2011) (concluding that



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challenge of Virginia State Board of Elections decision brought by former

congressional candidate and his supporters was “ ‘capable of repetition’ ” when “ ‘there

[was] a reasonable expectation that the challenged provisions [would] be applied

against the plaintiffs again during future election cycles’ ”) (citation omitted); Shell

Island Homeowners Ass’n, 134 N.C. App. at 292, 517 S.E.2d at 405 (“Assuming

arguendo that the claims are capable of repetition, there is no evidence to suggest

that [the] plaintiff’s grievances have evaded review.”).

      Despite these well-established principles, the Board attempts a clever “bait

and switch” on appeal: it contends that the central issue is whether the superior

court “has jurisdiction to hear what amounts to a collateral attack on a decision of

the . . . Board to adopt an early voting plan for a county in which the county board of

elections was not unanimous.” Based on this characterization of the case, the Board

argues that “absent a ruling from this Court clarifying the superior court’s

jurisdiction, it is reasonably likely that the . . . Board will again find itself in this

same position, namely, forced to defend against a collateral challenge to an early

voting plan that [it] has approved or adopted[.]” The Board’s approach is inherently

flawed, however, because it impermissibly recasts the nature of the parties’ dispute.

In making its arguments, the Board turns the capable-of-repetition exception on its

head. Our review of the pertinent case law reveals that the exception is intended to

allow plaintiffs to obtain a judgment or appellate review in cases where the two



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prongs are met; it is not designed to protect defendants or respondents from future

lawsuits. Accordingly, based on the facts of this case, the “same action” is not whether

the Board might be forced to defend against its adoption of a future early voting plan,

but whether future registered voters will challenge an early voting plan adopted by

the Board as violative of the constitutional rights of voters aged 18 to 25.

       We agree with petitioners that a series of speculative events must occur for a

similar controversy, i.e., the “same action,” to arise again: (1) a local board of elections

must be unable to adopt a unanimous early voting plan; (2) the majority members of

the local board must adopt a plan which allegedly discriminates against young voters

and violates their state and federal constitutional rights; (3) the Board must review

competing plans from the local board and adopt the majority plan without significant

change; (4) and one or more voters must file a petition for judicial review of the

Board’s decision pursuant to subsection 163-22(l). Another factor weighing against

the repetition of the same action is the ever-changing composition of the Board and

local boards of election. See N.C. Gen. Stat. §§ 163-19 (2015) (providing four-year

terms (and a maximum of two consecutive terms) for members of the Board); 163-30

(2015) (providing two-year terms for members of local boards).

       In a rather tepid response to this line of reasoning, the Board asserts that the

issue it “asks this Court to review is the purely procedural question of whether the

superior court has jurisdiction to hear a petition for judicial review of the adoption of



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an early voting plan, irrespective of the reasons underlying the challenge.” The

Board’s position, as we understand it, is simply that it would like to know if its future

adoptions of early voting plans for counties will be subject to judicial review under

subsection 163-22(l). Indeed, at oral argument, the Board stated that it would like

the “comfort” of knowing whether subsection 163-227.2(g) requires it to adjudicate

the constitutional rights of voters when it adopts an early voting plan for a county.

Yet as our Supreme Court has previously pointed out, it is not a proper function of

courts “ ‘to give advisory opinions, or to answer moot questions, or to maintain a legal

bureau for those who may chance to be interested, for the time being, in the pursuit

of some academic matter.’ ” Adams v. N.C. Dept. of Natural and Economic Res., 295

N.C. 683, 704, 249 S.E.2d 402, 414 (1978) (citation omitted).               By seeking

“clarification” and “comfort,” the Board is surely asking us for advice we are not

obliged to give. More to the point, just because the Board says the procedural issue

it has identified may arise again does not make that issue the “same action” for

purposes of analysis under the capable-of-repetition exception to mootness.

      The second prong of the exception is also unsatisfied here because the Board—

the respondent in this case—wrongly characterizes itself as the same “complaining

party.” See Black’s Law Dictionary 323 (9th ed. 2009) (defining “complainant” as

“[t]he party who brings a legal complaint against another; esp[ecially], the plaintiff

in a court of equity or, more modernly, a civil suit”). Although situations may arise



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where a defendant or respondent can be considered the complaining party for

purposes of this exception to mootness, we are aware of no North Carolina appellate

decisions that have adopted such an approach. As we have intimated above, the

implicit rule in North Carolina is that the term “complaining party” invariably refers

to plaintiffs who could be subjected to the complained of activity again in the future.

See, e.g., Sullivan, 165 N.C. App. at 488, 598 S.E.2d at 638 (analyzing whether the

respondent school board would subject the petitioners’ son to the same action again);

Boney Publishers, Inc., 151 N.C. App. at 654, 566 S.E.2d at 704 (analyzing whether

the defendant might subject the plaintiff to the same action again); Crumpler, 92 N.C.

App. at 724, 375 S.E.2d at 712 (same). Several federal circuit courts have explicitly

recognized this rule. See Sierra Club v. Glickman, 156 F.3d 606, 620 (5th Cir. 1998)

(“By its very terms, the exception is designed to protect plaintiffs; it is not designed

to protect defendants from the possibility of future lawsuits[.]”); Fischbach v. N.M.

Activities Ass’n, 38 F.3d 1159, 1161 (10th Cir. 1994) (“The mere fact that the

[defendant] claims the action is not moot does not make [it] the complaining party for

purposes of analysis under the exception to the mootness doctrine. The complaining

parties in this action are the [plaintiffs], and it has been established that they will

not be subjected to the actions of the [defendant] again.”); Lee v. Schmidt-Wenzel, 766

F.2d 1387, 1390 (9th Cir. 1985) (“The . . . [capable of repetition exception] usually is

applied to situations involving governmental action where it is feared that the



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                                   Opinion of the Court



challenged action will be repeated. The defending party being constant, the emphasis

is on continuity of identity of the complaining party. When the litigation is between

private parties, we must consider whether the anticipated future litigation will

involve the same defending party as well as the same complaining party.”).

      Here, petitioners’ allegations that the Board adopted an unconstitutional early

voting plan gave rise to the original action; however, the superior court’s order

resolved the case to their satisfaction, and there is no reason to believe that they will

be subjected to the same action in future elections. By contrast, on appeal, the Board

complains that under petitioners’ “view of the law, any disgruntled voter who is

dissatisfied with the early voting plan adopted for his or her county may file a petition

in the Superior Court of Wake County challenging the . . . Board’s approval or

adoption of an early voting plan for the county, as a means of changing a plan that is

not to his or her liking.” This contention assumes that the superior court would find

that it had jurisdiction under subsection 163-22(l) in any conceivable scenario.

Furthermore, at oral argument, the Board insisted that it was “extraordinary” for the

superior court to rule on petitioners’ constitutional claims based on such a “thin”

record (i.e., no evidentiary hearing was held and the Board made no findings). The

Board then declared that petitioners should have filed an “independent” action

invoking the superior court’s original jurisdiction. But when asked how the record

would have differed in any material way had petitioners brought a declaratory



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                                  Opinion of the Court



judgment action or a suit for injunctive relief, the Board had no viable answer. As

such, the Board is simply positing a distinction without a difference, and it cannot be

considered the complaining party for purposes of the capable-of-repetition exception

to the mootness doctrine. In other words, the Board’s argument is little more than a

complaint about the form of future legal actions which may be filed against it. Even

if we accepted the Board’s view on the issues its appeal purportedly presents, the fact

that petitioners could have obtained review of the Board’s decision through other

legal and procedural avenues suggests that all aspects of this case are moot.

      In sum, since there is no reasonable expectation that petitioners (the

complaining party in this case) will be subject to the same action again, the Board

cannot demonstrate that this particular controversy will repeat itself. Accordingly,

based on the record before us, we conclude that this case is not one that is capable of

repetition, yet evading review.

      C. Public Interest Exception to Mootness

      The Board also argues that the public interest exception to mootness applies

in this case. Once again, we disagree.

      A court may consider a case that is technically moot if it “involves a matter of

public interest, is of general importance, and deserves prompt resolution.” N.C. State

Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989). However, this is a

very limited exception that our appellate courts have applied only in those cases



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                                   Opinion of the Court



involving clear and significant issues of public interest. See, e.g., Granville Cnty. Bd.

of Comm’rs v. N.C. Hazardous Waste Mgmt. Comm’n, 329 N.C. 615, 623, 407 S.E.2d

785, 790 (1991) (“Because the process of siting hazardous waste facilities involves the

public interest and deserves prompt resolution in view of its general importance, we

elect to address it.”); State v. Corkum, 224 N.C. App. 129, 132, 735 S.E.2d 420, 423

(2012) (holding that an issue of structured sentencing under the Justice

Reinvestment Act of 2011 required review because “all felons seeking confinement

credit following revocation of post-release supervision will face similar time

constraints when appealing a denial of confinement credit effectively preventing the

issue regarding the trial judge’s discretion from being resolved”); In re Brooks, 143

N.C. App. at 605-06, 548 S.E.2d at 751-52 (applying the public interest exception to

police officers’ challenge of a State Bureau of Investigation procedure for handling

personnel files containing “highly personal information” and acknowledging that “the

issues presented . . . could have implications reaching far beyond the law enforcement

community”).

      Our review of the Board’s arguments is animated by the following principles.

First, North Carolina courts “do not issue anticipatory judgments resolving

controversies that have not arisen.” Bland v. City of Wilmington, 10 N.C. App. 163,

164, 178 S.E.2d 25, 26 (1970), rev’d on other grounds, 278 N.C. 657, 180 S.E.2d 813

(1971). Second, litigants are not permitted “to fish in judicial ponds for legal advice.”



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                                   Opinion of the Court



Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 584, 347 S.E.2d 25, 29

(1986) (citation omitted).

      We begin by noting that the arguments the parties make, and the words they

use, before this Court matter. In the instant case, the Board requests that we provide

“proper guidance . . . so that [the Board] can provide the appropriate procedure at its

hearings on matters brought before it pursuant to [section] 163-227.2.” (Emphasis

added). The Board also insists that “[t]his appeal [should] determine whether the . .

. Board is required to conduct . . . hearings [on non-unanimous early voting plans for

counties] as quasi-judicial hearings.”      (First emphasis added).    Such language

suggests that the Board intends to “put [the requested opinion] on ice to be used if

and when [the] occasion might arise.” Tryon v. Power Co., 222 N.C. 200, 204, 22

S.E.2d 450, 453 (1942). In essence, we have been asked to render a declaratory

judgment, complete with practical advice, on how the Board must perform its duties

pursuant to section 163-227.2. This we cannot do. Furthermore, deciding the issues

raised by the Board on appeal would require us to issue an advisory opinion,

something we are unwilling and unauthorized to give. E.g., In re Wright, 137 N.C.

App. 104, 111-12, 527 S.E.2d 70, 75 (2000) (“ ‘[T]he courts have no jurisdiction to

determine matters purely speculative, enter anticipatory judgments, . . . deal with

theoretical problems, give advisory opinions, . . . provide for contingencies which may

hereafter arise, or give abstract opinions.’ ” (omission in original) (quoting Little v.



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                                  Opinion of the Court



Wachovia Bank & Trust Co., 252 N.C. 229, 243, 113 S.E.2d 689, 700 (1960))).

Although “guidance” is always useful in the election-law context, the Board’s

arguments fail to demonstrate why the procedural issues it raises deserve prompt

resolution.

      The Board also fails to explain how the particular judicial review that

petitioners obtained implicates any greater public interest, nor do we believe that it

does. Instead, the Board’s “public interest” argument is focused on its own interests,

to wit: it seeks advice on how to conduct hearings on early voting plans and what

resources must be employed in that process. But self-serving contentions based upon

a theoretical state of affairs cannot defeat the principle of judicial restraint that

sustains our State’s mootness doctrine. Simply put, the matter is not one of such

“general importance” as to justify application of the public interest exception. Beason

v. N.C. Dep’t of Sec’y of State, 226 N.C. App. 233, 239, 741 S.E.2d 663, 667 (2013)

(citation omitted).

                                  III. Conclusion

      The 2014 election is over and the superior court’s order granted petitioners the

relief they sought. As a result, this appeal presents questions that are moot. Despite

the Board’s arguments to the contrary, there is no reasonable expectation that

petitioners will be subjected to the same action again. The issues raised before the

superior court, therefore, do not fall within the capable of repetition, yet evading



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                                   Opinion of the Court



review exception to the mootness doctrine. In addition, since the Board asserts little

more than self-serving interests on appeal, the issues it has presented to this Court

are not of such public interest as to except this matter from its otherwise moot nature.

Accordingly, we dismiss the Board’s appeal.

      DISMISSED.

      Judge ELMORE concurs.

      Judge DILLON dissents by separate opinion.




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 No. COA14-1369 – ANDERSON v. N.C. STATE BD. OF ELECTIONS


      DILLON, Judge, dissenting.


      I agree with the majority that this case is technically moot. The 2014 election

is over. However, because I conclude that the issues raised are “capable of repetition,

yet evading review,” my vote is not to dismiss this appeal based on mootness.

Accordingly, I respectfully dissent.

                                       I. Background

      In August 2014, the State Board of Elections (the “Board”) exercised its

authority to implement a plan (the “2014 Plan”) designating early voting sites in

Watauga County for the 2014 general election. N.C. Gen. Stat. § 163-227.2 (2013).

The 2014 Plan adopted by the Board included a number of voting sites throughout

Watauga County, including one location within one mile of the Appalachian State

University (“ASU”) campus.

      In September 2014, seven county residents filed a “Petition for Judicial

Review” in Wake County Superior Court seeking an order to compel the Board to

include a voting site on ASU’s campus.

      On 13 October 2014, ten days before early voting began, the superior court held

a hearing on the petition and issued an order (the same day), concluding that the

Plan – requiring would-be ASU students who wanted to vote early to travel one mile

to cast the vote – constituted a “significant infringement of [ASU] student rights to

vote and rises to the level of a constitutional violation of the right to vote[.]”

Accordingly, the court compelled the Board to provide a site on ASU’s campus.
                         ANDERSON V. N.C. STATE BD. OF ELECTIONS

                                       DILLON, J., dissenting



        On 16 October 2014, the Board filed its notice of appeal to our Court. However,

by the time the record on appeal was settled and the appellate briefs had been filed,

the 2014 general election was well over.

                                           II. Discussion

        The issues pertaining to the 2014 Plan are technically moot; however, the

issues involved are exactly the type which are “capable of repetition, yet evading

review[.]” See Reep v. Beck, 360 N.C. 34, 40, 619 S.E.2d 497, 501 (2005) (recognizing

the “capable of repetition, yet evading review” exception as one of the “longstanding

exceptions to the mootness rule”). Accordingly, I conclude that the mootness doctrine

does not apply.

        The Watauga County Board of Election and the Board, which are statutorily

empowered to choose the location of “one stop” early voting sites in Watauga County,

are each controlled by the sitting Governor’s political party.5 N.C. Gen. Stat. § 163-

227.2(g) (2015). In choosing the sites, these boards are afforded some discretion, so

long as the decision is not violative of applicable state or federal laws or of the state

and federal constitutions. Whatever decision is made on the site locations, certain




        5 Control by the Governor’s party is not mandated, but occurs in practice. The State Board of
Elections is set up to be controlled by the Governor’s political party as its five members are appointed
by the Governor and the Governor is allowed to have a majority come from his/her own party. N.C.
Gen. Stat. § 163-19 (2015). The State Board, in turn, appoints each county board’s three members,
and is allowed to have a majority (two) of each county board to come from the Governor’s political
party. N.C. Gen. Stat. § 163-30 (2015)
        .

                                                   2
                     ANDERSON V. N.C. STATE BD. OF ELECTIONS

                                  DILLON, J., dissenting



voters will be required to travel farther than other voters in order to take advantage

of early voting.

      In 2012, the Democratic-controlled boards decided to locate an early voting site

on ASU’s campus, requiring voters who lived near ASU to travel to the campus to

vote (or to a more remote location). The 2014 Plan adopted by the Republican-

controlled boards, however, would have provided a site which was more convenient

than the 2012 on-campus site for certain voters but less convenient for ASU students

living on campus. To be sure, politics may have played some part in the decisions of

both boards, but their decisions are nonetheless permissible unless violative of state

or federal law or our state or federal constitutions. In the same way, our General

Assembly has some discretion to consider politics in drawing our congressional and

legislative districts, see Hunt v. Cromartie, 526 U.S. 541, 551, 119 S. Ct. 1545, 1551,

143 L. Ed.2d 731, 741 (1999), see also Dickson v. Rucho, ___ N.C. ___, ___, 781 S.E.2d

404, 437 (2015) (recognizing “partisan advantage” as a “legitimate governmental

interest[]”), provided the maps do not violate controlling state or federal laws or our

state or federal constitutions.

      It is now 2016, and the Republicans are still in control of the Watauga County

and State boards of elections. The United States Supreme Court has recognized that

cases challenging election practices which may otherwise become moot due to an

election being held should be nonetheless decided as the issues involved are likely to



                                            3
                          ANDERSON V. N.C. STATE BD. OF ELECTIONS

                                         DILLON, J., dissenting



recur in subsequent elections. Morse v. Republican Party of Va., 517 U.S. 186, 235 n.

48, 116 S. Ct. 1186, 1214 fb. 48, 134 L. Ed.2d 347, 382 n. 48 (1996). Here, the election

practice at issue is likely to recur in the 2016 general election. However, like in the

present case, any appeal regarding the 2016 general election would most likely not

be in a position to be resolved by our state appellate courts until well after the election

has been held.

        In conclusion, I believe the “election practice” issues are ripe for our

consideration despite the fact that the 2014 election is over. There is another election

just around the corner, and the Watauga County Board will again be faced with

whether their plan must provide a voting site on ASU’s campus. Accordingly, I

believe we should resolve this issue and not dismiss the appeal merely because the

2014 election is over. 6




        6 Also, even if the issues do not fit the criteria for being capable of repetition, yet evading
review, I believe that the matter raised here involves substantial issues of public interest – issues
involving the integrity of our election process – and, therefore, we should resolve the issues,
notwithstanding the fact that the 2014 election is over. These issues include, for example, the scope
of the authority of boards of elections to choose early voting sites, the standing of voters to seek judicial
review of a decision by a board of elections regarding the location of early voting sites, and the proper
procedure to challenge such decisions made by a board of elections.

                                                     4
