An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.



                               NO. COA13-1295
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014




IN THE MATTER OF:
                                              Durham County
                                              No. 13 CVS 3898
A. LEON STANBACK




       Appeal by affiant from orders entered 14 August 2013 and 23

August 2013 by Judge Orlando F. Hudson, Jr. in Durham County

Superior Court.       Heard in the Court of Appeals 22 April 2014.


       James Michael Lynch, pro se, for affiant-appellant.

       Attorney General Roy Cooper, by Special Deputy                     Attorney
       General Grady L. Balentine, Jr., for appellee.


       HUNTER, Robert C., Judge.


       Appellant-affiant James Michael Lynch (“appellant-affiant”)

appeals the trial court’s orders dismissing the N.C. Gen. Stat.

§ 7A-66 proceeding against District Attorney A. Leon Stanback

(“DA    Stanback”)     and    denying     appellant-affiant’s         Rule    60(b)
                             -2-
motion.   After careful review, we dismiss appellant-affiant’s

appeal.
                                      -3-
                                   Background

    On    5    August   2013,     appellant-affiant       filed    an   affidavit

pursuant to section 7A-66 charging the following grounds for DA

Stanback’s removal: (1) willful misconduct in office, and (2)

willful and persistent failure to perform his duties.                   In short,

appellant-affiant       claimed    that   the   Sheriff    of    Durham   County,

Michael    Andrews,      along     with     others   in     that    department,

intentionally covered up a crime in which appellant-affiant was

a victim, lied to him, and destroyed evidence.                      DA Stanback

refused to initiate an investigation by the SBI into the alleged

crimes.        Thus,    appellant-affiant       accused     DA     Stanback    of

conspiring with the officers to cover up their crimes.

    The matter came on for hearing before Judge Hudson on 5

August 2013.        Judge Hudson issued an order on 14 August 2013

dismissing the proceeding based on his finding that no probable

cause existed to believe that the charges alleged against DA

Stanback were true.          On 22 August 2013, appellant-affiant filed

a Rule 60(b) motion, claiming that Judge Hudson’s refusal to

recuse himself entitled him to relief from the order dismissing

the removal proceeding.            Judge Hudson denied the Rule 60(b)

motion    on   23   August    2013.       Appellant-affiant       appealed    both

orders.
                                 -4-
                             Analysis

    A proceeding to remove a district attorney “is neither a

civil suit nor a criminal prosecution[;]” it is “an inquiry.”

In re Spivey, 345 N.C. 404, 418, 480 S.E.2d 693, 701 (1997).

Accordingly, “the rules of civil and criminal procedure do not

apply.”   In re Hudson, 165 N.C. App. 894, 896, 600 S.E.2d 25, 27

(2004).   Upon the filing of an N.C. Gen. Stat. § 7A-66 affidavit

seeking removal of a district attorney, the superior court is

required to perform a two-prong analysis: (1) the superior court

must determine whether “the charges if true constitute grounds

for suspension” of the district attorney; and (2) the superior

court must also find “probable cause for believing that the

charges are true.”    N.C. Gen. Stat. § 7A-66 (2013).       If the

court finds both of these things exist, it must hold a hearing

and “may enter an order suspending the district attorney from

performing the duties of his office until a final determination

of the charges on the merits.”    Id.   However, “[i]f the superior

court judge finds that the charges if true do not constitute

grounds for suspension or finds that no probable cause exists

for believing that the charges are true, he shall dismiss the

proceeding.”   Id.
                                         -5-
       Here, appellant-affiant is appealing Judge Hudson’s order

dismissing the removal proceeding initiated based on appellant-

affiant’s N.C. Gen. Stat. § 7A-66 affidavit.                       However, whether

appellant-affiant has a right to appeal this order is controlled

by this Court’s decision in In re Hudson.                    In In re Hudson, 165

N.C. App. at 895, 600 S.E.2d at 26, an affiant had filed a

similar affidavit pursuant to N.C. Gen. Stat. § 7A-66, charging

that    grounds       existed    to   remove     District      Attorney        G.     Dewey

Hudson.        After noting that “[i]n proceedings under N.C. Gen.

Stat. § 7A-66, the affiant is not a party, but rather is merely

a     citizen    presenting      possible       grounds    for      removal      to      the

court[,]” the Court looked at other similar proceedings, such as

dismissed       complaints       against       judges     before         the     Judicial

Standards Commission and decisions by the chief district court

judge to not conduct a hearing on the removal of a magistrate,

to determine whether the affiant had a right to appeal the trial

court’s dismissal of the removal proceedings.                        Id. at 897-98,

600    S.E.2d    at    28.      The   Court    concluded     that,       based      on   the

legislature’s         refusal   to    include    a   right    of    appeal       for     the

affiant even though it specifically provided a right of appeal

for    removed    district      attorneys,      an   affiant       has    no   right      to

appeal    an    order    dismissing     an    affidavit      charging      a     district
                                     -6-
attorney with one or more grounds for removal under section 7A-

66 and dismissed his appeal.         Id. at 898, 600 S.E.2d at 28.

    Here, appellant-affiant is appealing the order dismissing

the removal proceeding against DA Stanback.                 Based on In re

Hudson,   appellant-affiant     is     not   a     party   in     the   removal

proceedings and has no right to appeal Judge Hudson’s order.

Moreover, since he was not a party, he had no right to file a

Rule 60(b) motion to remove Judge Hudson from the probable cause

determination;   thus,    he   has    no   right    to   appeal    that   order

either.   Consequently, we dismiss appellant-affiant’s appeal.

                               Conclusion

    Based   on   the     foregoing    reasons,     we    dismiss    appellant-

affiant’s appeal.



    DISMISSED.

    Judges BRYANT and STEELMAN concur.

    Report per Rule 30(e).
