State of N.C. v. Anson Cnty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1069

Filed 6 August 2024

Anson County, Nos. 23CVS82

STATE OF NORTH CAROLINA ex rel. GERALD CANNON, in his individual

capacity and his official capacity As Sheriff of Anson County, Plaintiff,

v.

ANSON COUNTY; ANSON COUNTY BOARD OF COMMISSIONERS; JARVIS T.

WOODBURN, in his official capacity; JEFFREY BRICKEN, in his official capacity;

ROBERT MIMS, JR., in his official capacity; LAWRENCE GATEWOOD, in his

official capacity; JAMES CAUDLE, in his official capacity; PRISCILLA LITTLE, in

her official capacity; DAVID HAROLD C. SMITH, in his official capacity; SCOTT

HOWELL, Defendants.

Appeal by plaintiff from order entered 10 May 2023 by Judge Stephan R.

Futrell in Anson County Superior Court. Heard in the Court of Appeals 28 May 2024.

Leitner, Bragg & Griffin, PLLC, by Ellen A. Bragg and Thomas

Leitner, for plaintiff-appellant.

Ellis & Winters LLP, by Jonathan D. Sasser and Jeffrey Steven

Warren, for defendant-appellee Scott Howell.

Cranfill Sumner LLP, by Patrick H. Flanagan and Steven A.

Bader, for defendant-appellee Anson County, et al.

Scott Forbes, for defendant-appellee Anson County, et al.

FLOOD, Judge.

Gerald Cannon (“Plaintiff”) appeals from an order granting Defendants’

motions for judgment on the pleadings. After careful review, we conclude the trial

court did not err by granting Defendants’ motions for judgment on the pleadings

STATE OF N.C. V. ANSON CNTY.

Opinion of the Court

because the face of Plaintiff’s quo warranto complaint shows the Anson County Board

of Commissioners (the “Board”) unlawfully appointed Plaintiff as Anson County

Sheriff.

I. Factual and Procedural Background

On 21 September 2022, Anson County Sheriff Landric Reid passed away

during his term of office. On 4 October 2022, the Board appointed Chief Deputy Scott

Howell (“Defendant Howell”) to fulfill the remainder of Sheriff Reid’s term, which was

set to expire on 5 December 2022.1 Prior to his death, Sheriff Reid had won the

Democratic nomination for Sheriff and was on the 8 November 2022 general election

ballot for Sheriff. Due to the short amount of time between Sheriff Reid’s death and

the general election, Sheriff Reid was unable to be removed from the ballot and won

re-election in November 2022, thereby creating a vacancy for his second term.

On 1 December 2022, the Board convened for a “special meeting” to discuss the

looming Sheriff vacancy. The commissioners present during the special meeting were

Chairman Jarvis T. Woodburn, Vice Chair Robert Mims, Vancine Sturdivant, Harold

C. Smith, Dr. Sims, Lawrence Gatewood, and J.D. Bricken. During the special

meeting, Commissioner Bricken asked the Anson County Attorney, Scott Forbes,

whether the Board had “authority to appoint a sheriff to fulfill an upcoming vacancy.”

According to the minutes from the special meeting, “Attorney Forbes advised that [a]

1Plaintiff’s quo warranto complaint indicated that the term expired at midnight on 4

December 2022, but deposition testimony confirmed the term expired at midnight on 5 December 2022.

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Closed Session would be the more appropriate venue to answer this question as it is

a legal matter from which he assumes litigation is likely to follow.” Due to the

attorney-client privilege between Attorney Forbes and the Board, Attorney Forbes

advised that the Board would need to vote before having him address the question in

an open session. The Board subsequently voted to go into a closed session. After the

Board came out of the closed session, the Board voted six to one to conclude the special

meeting, as they had determined in the closed session that the issue of appointing a

sheriff could wait until the Board’s regularly scheduled meeting to be held on 6

December 2022. Following the vote, Commissioner Woodburn announced to the open

session audience that there “would be no action taken today and ‘this matter will be

resolved on December 6.’”

On 3 December 2022, the Democratic Party of Anson County (the “Democratic

Party”) selected Plaintiff to fill the vacancy of the Anson County Sheriff. The

Democratic Party was operating under the belief that, pursuant to N.C. Gen. Stat. §

162-5.1 (b) (2021), the Board was required to appoint the person recommended by the

Democratic Party, as Sheriff Reid had been elected as the Democratic nominee. This

section of the statute, however, applies only to select counties, of which Anson County

is not included.

Despite the Board concluding at the special meeting on 1 December 2022 that

no action needed to be taken until the 6 December 2022 regular meeting,

Commissioner Woodburn called for an “emergency meeting” on 5 December 2022 to

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address the vacancy for Sheriff. Commissioner Woodburn called the 5 December

meeting after he was contacted by Commissioner Smith, who represented that a

board member of the Democratic Party had “told him that the sheriff’s position

needed to be dealt with[.]” Commissioner Woodburn thought that “made sense” as

there would be a vacancy as of 5 December 2022.2 On 5 December 2022, at 5:29 p.m.

the Clerk to the Board—Denise Cannon—sent an email to all six commissioners,

notifying them that Commissioner Woodburn had called the 5 December meeting.

Cannon also called all six board members between 4:56 p.m. and 5:42 p.m. on 5

December 2022, and made contact with five commissioners, but was unable to reach

Commissioner Gatewood. The 5 December meeting began at 5:45 p.m. at the Anson

County Government Center.

Commissioners Sturdivant and Smith were present in person at the 5

December meeting, and Commissioners Woodburn and Sims were present via

conference call. Commissioner Bricken is not included on the list of commissioners

who were present, but the meeting minutes reflect that he participated in the meeting

via conference call; however, he lost contact at some point prior to the vote.

Commissioners Smith, Sturdivant, Sims, and Woodburn voted to appoint Plaintiff to

2 Complicating the vacancy timing and date, Commissioner Woodburn stated in his deposition

that after being contacted by Commissioner Smith on 5 December, Commissioner Woodburn thought

the meeting was necessary because “the sheriff’s position needed to be dealt with because, you know,

as of midnight on the 5th, we wouldn’t have a sheriff.” As this occurred on 5 December, a term expiring

at midnight would be later that same night.

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fill the vacant Sheriff’s position. Commissioner Bricken was called to vote, but was

unresponsive. Plaintiff won the nomination with four out of seven votes and was

sworn in as Anson County Sheriff at the close of the 5 December meeting.

Later that evening, Attorney Forbes contacted Plaintiff and Defendant Howell.

Attorney Forbes notified Plaintiff that he interpreted the 5 December meeting as an

illegal meeting because there was no “emergency,” and Plaintiff’s appointment was

therefore invalid. Attorney Forbes told Defendant Howell that because the meeting

was unlawful, Defendant Howell was still the Sheriff.

On 6 December 2022, Plaintiff filed a complaint in Anson County Superior

Court seeking a declaratory judgment. He also filed a motion for a preliminary

injunction. In his complaint and motion, Plaintiff requested that the trial court

declare him as Sheriff and prohibit the Board from preventing him from taking office

as Sheriff. A hearing was held in which Attorney Forbes informed the trial court that

he had “retracted” the statement that he made to Plaintiff the previous evening

because the “[c]ounty was not going to take a position as to this issue and it was for

the court” to decide. In a subsequent deposition, Attorney Forbes represented that

he did not “know that [he necessarily] retracted” the statement, but only meant to

convey that he did not have the authority to make the statement because it was for

the courts to decide.

Following the hearing on Plaintiff’s motion for a preliminary injunction, the

trial court denied Plaintiff’s motion.

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Later that day, at 6:00 p.m., the Board convened for their regularly scheduled

meeting. Present at this meeting were Commissioners Bricken, Mims, Woodburn,

Smith, and Gatewood. Also present were Commissioners Priscilla Little and Jamie

Caudle, who had been sworn in at the start of the meeting, replacing out-going

Commissioners Sims and Sturdivant.

During the meeting, Commissioner Gatewood motioned to appoint Defendant

Howell as Anson County Sheriff “effective immediately and extending through the

next four years.” Commissioner Caudle seconded this motion. Commissioner Smith

questioned the legality of the motion and inquired as to whether there was even a

vacancy given Plaintiff’s appointment the previous day, but no further discussion was

had.3 The Board voted six to one—Commissioner Smith being the one—to bring to a

vote the motion to appoint Defendant Howell as Sheriff. The motion to appoint

Defendant Howell as Sheriff was repeated, and the Board voted four to three to

appoint Defendant Howell as Anson County Sheriff.

On 7 December 2023, Plaintiff filed an amended complaint for declaratory

judgment, and motion for preliminary injunction and permanent injunction, again

requesting the trial court declare him Anson County Sheriff. The amended complaint

3 The minutes from the 6 December meeting indicate the Board went into a closed session to

consult with Attorney Forbes about “a potential or actual claim, administrative procedure, or judicial

action” that could be brought pursuant to N.C. Gen. Stat. § 143-318.11(a)(3). As this was a closed

session, however, there is no evidence in the Record showing what was said during that discussion or

whether it addressed Commissioner Smith’s concerns.

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alleged that Attorney Forbes informed Plaintiff that the 5 December “meeting was

not illegal, and that Plaintiff was appointed as Sheriff for Anson County[.] . . .

Further, [Attorney Forbes] stated . . . that the [5 December meeting] was valid and

legal and that was the reasoning for retracting his previous statements.” During

Attorney Forbes’ deposition, however, he emphatically denied ever stating that the 5

December meeting was “valid and legal.”

The trial court denied Plaintiff’s request to declare him Anson County Sheriff,

and Defendant Howell was sworn in as Sheriff. In denying Plaintiff’s request, the

trial court advised Plaintiff that the appropriate action would be a quo warranto.

On 19 December 2023, Plaintiff requested that the North Carolina Attorney

General grant Plaintiff leave to file a quo warranto action. On 4 January 2023, the

North Carolina Department of Justice declined to bring a quo warranto action against

Defendant Howell on behalf of Plaintiff but permitted Plaintiff to file such an action

in the name of the State.

On 10 February 2023, Plaintiff filed a quo warranto complaint in Anson County

Superior Court against Anson County, the Board, all seven commissioners in their

official capacities (collectively “Defendant Anson County”), and Defendant Howell

(collectively “Defendants”). The quo warranto complaint alleged that the Board did

not have the authority to appoint Defendant Howell to the office of Anson County

Sheriff because no vacancy existed after the 5 December meeting.

On 16 March 2023, Defendant Howell filed an answer to Plaintiff’s quo

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warranto complaint, asserting Plaintiff failed to state a claim upon which relief could

be granted. On 28 March 2023, Defendant Anson County filed an amended answer

and asserted a counterclaim for declaratory judgment, arguing the 5 December

meeting was not in fact an “emergency meeting,” and as such, the meeting was not

properly noticed.

On 17 April 2023, Defendant Howell filed a motion for judgment on the

pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil Procedure. On

21 April 2023, Defendant Anson County filed a separate motion for judgment on the

pleadings. Defendants argued the 5 December meeting was not properly noticed, and

the Board did not have a proper quorum because only two commissioners attended in

person; therefore, Plaintiff’s appointment to Sheriff was unlawful.

On 26 April 2023, Plaintiff filed a motion for summary judgment arguing there

were no genuine issues of material fact, and he was entitled to judgment as a matter

of law. Plaintiff also filed a motion to dismiss Defendant Anson County’s

counterclaim.

On 8 May 2023, the trial court held a hearing on Defendants’ motions for

judgment on the pleadings, Plaintiff’s motion to dismiss Defendant Anson County’s

counterclaim for declaratory judgment, and Plaintiff’s motion for summary judgment.

At the hearing, all parties agreed that whichever motion the trial court ruled on

would be dispositive of all of the motions. On 10 May 2023, the trial court issued an

order granting Defendants’ motions for judgment on the pleadings. On 5 June 2023,

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Plaintiff filed a notice of appeal to this Court.

II. Jurisdiction

This Court has jurisdiction to review this appeal from a final judgment

pursuant to N.C. Gen. Stat. § 7A-27(b) (2023).

III. Analysis

On appeal, Plaintiff argues that it was an error for the trial court to grant

Defendants’ motions for judgment on the pleadings. Plaintiff also argues it was an

error to deny Plaintiff’s motion to dismiss Defendant Anson County’s counterclaim

and Plaintiff’s motion for summary judgment. We conclude that the trial court did

not err in granting judgment on the pleadings in favor of Defendants, as the face of

Plaintiff’s quo warranto complaint shows he was appointed at an unlawful meeting

where there was neither a true “emergency” nor a quorum. We therefore do not reach

Plaintiff’s motion to dismiss Defendant Anson County’s counterclaim nor his motion

for summary judgment.

A. Quo Warranto Action

Plaintiff argues the Board’s 5 December appointment of Plaintiff to fill the

term of Sheriff “should be deemed valid until and only if a proper proceeding is

initiated and a court concludes that the appointment shall be declared void.” Plaintiff

further argues that in order to initiate the proper proceeding to contest an action of

the Board, a person must file suit under N.C. Gen. Stat. § 143-318.16A and, as no

person ever filed such a suit to challenge Plaintiff’s appointment, he remains the

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lawful Sheriff. We disagree.

A quo warranto action may be brought by the Attorney General in the name of

the State, or the Attorney General may grant a private person leave to bring an action

in the name of the State, “[w]hen a person usurps, intrudes into, or unlawfully holds

or exercises any public office . . . .” N.C. Gen. Stat. § 1-515(1) (2023); see also

Swaringen v. Poplin, 211 N.C. 700, 702, 191 S.E. 746, 747 (1937) (“One of the chief

purposes of quo warranto . . . is to try the title to an office.”). “A usurper is one who

undertakes to act officially without any actual or apparent authority.” In re Wingler,

231 N.C. 560, 564, 58 S.E.2d 372, 375 (1950).

Here, Plaintiff filed a quo warranto complaint arguing Defendant Howell’s

appointment to Anson County Sheriff was “void and of no effect” because no one

challenged Plaintiff’s 5 December appointment to Sheriff, and there was therefore no

vacancy for Defendant Howell to fill. Moreover, in his appellate brief, Plaintiff

represented—without citing to legal support—that a quo warranto action is “used to

resolve a dispute over whether a specific person has the legal right to hold the public

office that he or she occupies; in this instance, this action was brought because

[Defendant] Howell and Anson County were usurping the office of [] Sheriff.” In

Plaintiff’s own words, when the trial court reviewed Plaintiff’s quo warranto

complaint, it was required to “resolve a dispute over whether a specific person has

the legal right to hold” the title of Sheriff, i.e., to determine whether Defendant

Howell usurped Plaintiff’s position as Sheriff. To make this determination, the trial

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court would have to determine if Plaintiff was in fact lawfully appointed to the

position of Sheriff during the 5 December meeting. If Plaintiff was not lawfully

appointed, Defendant Howell could not have usurped Plaintiff’s position. If, on the

other hand, Plaintiff had been lawfully appointed, Defendant Howell’s appointment

would have usurped Plaintiff’s position. See In re Wingler, 231 N.C. at 564, 58 S.E.2d

at 375.

Accordingly, because Plaintiff placed the issue of his appointment up for

judicial review by filing the quo warranto complaint, Defendants were not required

to challenge Plaintiff’s 5 December appointment by filing suit pursuant to N. C. Gen.

Stat. § 143-318.16A. Having concluded the trial court could determine whether

Plaintiff was lawfully appointed to Sheriff, and Defendants were not required to file

their own suit challenging Plaintiff’s 5 December appointment, we now turn to

whether the trial court erred by granting Defendants’ motions for judgment on the

pleadings.

B. Judgment on the Pleadings

In challenging the trial court’s order granting Defendants’ motions for

judgment on the pleadings, Plaintiff makes no arguments explaining why his 5

December appointment was lawful. Instead, he again argues that Defendants were

required to challenge Plaintiff’s appointment under N.C. Gen. Stat. § 143-318.16A,

and absent any such challenge, Plaintiff’s quo warranto complaint shows he was

entitled to assume the role of Anson County Sheriff. As Plaintiff has generally

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challenged the trial court’s order, we will conduct our review to determine whether

the order was made in error.

Defendants argue the trial court did not err in granting judgment on the

pleadings because the face of Plaintiff’s quo warranto complaint shows that he is not

entitled to the relief sought because his appointment to the position of Sheriff

occurred at an unlawful meeting in which improper procedure was followed. We

agree.

1. Standard of Review

We review a trial court’s decision on a grant of judgment on the pleadings de

novo. N.C. Farm. Bureau Mut. Ins. Co. Inc. v. Hebert, ___N.C. ___, ___, 898 S.E.2d

718, 724 (2024) (alterations in original) (citations omitted). A party who files for a

judgment on the pleadings “must show that ‘the [pleadings] . . . fail[] to allege facts

sufficient to state a cause of action or admit[] facts which constitute a complete legal

bar’ to a cause of action.” Id. at __, 898 S.E.2d at 724.

In determining whether to grant a motion for judgment on

the pleadings, [t]he trial court is required to view the facts

and permissible inferences in the light most favorable to

the nonmoving party. All well pleaded factual allegations

in the nonmoving party’s pleadings are taken as true and

all contravening assertions in the movant’s pleadings are

taken as false. All allegations in the nonmovant’s

pleadings, except conclusions of law, legally impossible

facts, and matters not admissible in evidence at the trial

are deemed admitted by the movant for the purposes of the

motion.

Benigno v. Sumner Const., Inc., 278 N.C. App. 1, 4, 862 S.E.2d 46, 49–50 (2021)

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(alteration in original) (citation omitted). When considering a motion for judgment

on the pleadings, “[t]he trial judge is to consider only the pleadings and any attached

exhibits, which become part of the pleadings.” Minor v. Minor, 70 N.C. App. 76, 78,

318 S.E.2d 865, 867 (1984).

2. Lawfulness of the 5 December Meeting

In arguing that the 5 December meeting was procedurally improper,

Defendants contend, more specifically, that the Board acted unlawfully when it called

an “emergency meeting” without a true emergency existing and when it appointed

Plaintiff without a quorum.

“In order to take valid action, a board of county commissioners must act . . . in

a meeting duly held as prescribed by law.” Land-of-Sky Reg’l Council v. Henderson

Cnty., 78 N.C. App. 85, 89, 336 S.E.2d 653, 656 (1985).

a. Nature of the 5 December Meeting

We first address Defendants’ argument that there was no “emergency” when

the meeting was called.

As defined by the Open Meetings Laws, “an ‘emergency meeting’ is one called

because of generally unexpected circumstances that require immediate consideration

by the public body.” N.C. Gen. Stat. § 143-318.12(f) (2023).

For any other meeting, except for an emergency meeting,

the public body shall cause written notice of the meeting

stating its purpose (i) to be posted on the principal bulletin

board of the public body or . . . at the door of its usual

meeting room, and (ii) to be mailed, e-mailed, or delivered

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to each newspaper, wire service, radio state, and television

station that has filed a written request for notice with the

clerk or secretary of the public body[.] . . . This notice shall

be posted and mailed, e-mailed, or delivered at least 48

hours before the time of the meeting.

N.C. Gen. Stat. § 143-318.12(b)(2).

“If any vacancy occurs in the office of sheriff, the coroner of the county shall

execute all process directed to the sheriff until the first meeting of the board of county

commissioners next succeeding such vacancy[.]” N.C. Gen. Stat. § 162-5(a) (2023).

“In those counties where the office of coroner has been abolished, the chief deputy

sheriff . . . shall perform all the duties of the sheriff until the board of county

commissioners appoint some person to fill the unexpired term.” N.C. Gen. Stat. §

152.5(b).

Here, the face of Plaintiff’s quo warranto complaint shows that the 5 December

meeting was not an “emergency meeting” because, first, it states that the Board met

on 1 December 2022 to discuss the looming Anson County Sheriff vacancy. Attached

to the quo warranto complaint were the 1 December meeting’s minutes, which show

the Board was aware that there would be a vacancy as of 5 December, but determined

no action was needed on the subject until the regularly scheduled 6 December

meeting. Thus, there was not a “generally unexpected circumstance” that required

immediate consideration by the Board. See N.C. Gen. Stat. § 143-318.12(f).

Second, the quo warranto complaint represented that Defendant Howell had

been appointed to assume the role of interim Sheriff following Sheriff Reid’s untimely

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death. Defendant Howell, therefore, would have remained in the interim role of

Sheriff until such time when the Board met at their next regularly scheduled meeting

and appointed someone to the office of Anson County Sheriff. See N.C. Gen. Stat. §

162-5(a).

As the 5 December meeting was not an “emergency meeting,” the Board was

required to give notice of the meeting forty-eight hours in advance. Attached to

Plaintiff’s quo warranto complaint is an email sent by Clerk Cannon on 5 December

at 5:29 p.m. notifying the commissioners that Commissioner Woodburn had called an

“emergency meeting.” The meeting’s minutes reflect that the meeting began just

sixteen minutes later—far short of the required forty-eight hours. See N.C. Gen.

Stat. § 143-318.12(b)(2).

Accordingly, the face of Plaintiff’s quo warranto complaint shows that the 5

December meeting was not an “emergency meeting” as no unexpected circumstances

existed, and the public therefore was not properly noticed. See N.C. Gen. Stat. § 143-

318.12(b), (f). Thus, the trial court did not err in granting Defendants’ motions for

judgment on the pleadings. See Hebert, ___N.C. at ___, 898 S.E.2d at 724.

b. Quorum

Even if the 5 December meeting had qualified as an emergency meeting, the

Board lacked the quorum necessary to lawfully appoint Plaintiff to Sheriff. Plaintiff

pled in his quo warranto complaint that the Board voted on his appointment with a

quorum because he received four out of seven votes. In Defendant Howell’s motion

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for judgment on the pleadings, he argued, conversely, that the “face of the

[c]omplaint, together with the exhibits attached, reveals Plaintiff is not entitled to

the relief he seeks” because, in relevant part, “[t]his hastily-called meeting was

personally attended by only two members of the seven-member Board. Chairman

Woodburn himself failed to show up.” Defendant Anson County likewise argued in

its motion for judgment on the pleadings that “[t]he [Board] did not have a proper

quorum to vote during the [5 December meeting] with only two of the seven []

Commissioners present at the meeting.”

“A majority of the membership of the board of commissioners constitutes a

quorum[,]” which is required for an action of a public board to be valid. N.C. Gen.

Stat. § 153A-43(a) (2023); see also Cleveland Cotton Mills v. Comm’rs of Cleveland

Cnty., 108 N.C. 678, 680–81, 13 S.E.2d 271, 272 (1891) (“[A]n act . . . done by an

indefinite body . . . is valid if passed by a majority of those present at a legal

meeting.”). In Anson County, there are seven members of the Board of

Commissioners. A quorum therefore consists of a majority, or four commissioners.

See N.C. Gen. Stat. § 153A-43(a).

Pursuant to Section 166A-19.24, “[n]otwithstanding any other provision of law,

upon issuance of a declaration of emergency under [N.C. Gen. Stat. §] 166-19.20, any

public body within the emergency area may conduct remote meetings[.]” N.C. Gen.

Stat. § 166A-19.24(a) (2023). A “remote meeting” is “[a]n official meeting . . . with

between one and all of the members of the public body participating by simultaneous

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communications[,]” i.e. by telephone. N.C. Gen. Stat. § 166A-19.24 (i)(3)–(4). If a

member participates in a meeting remotely during a state of emergency pursuant to

N.C. Gen. Stat. § 166A-19.24(a), that member “shall be counted as present for the

purposes of whether a quorum is present[.]” N.C. Gen. Stat. § 153A-43(b).

In this case, the 5 December meeting minutes Plaintiff attached to the quo

warranto complaint as an exhibit do not lend legal or factual support to the contention

that the Board had a quorum. To have a proper quorum on 5 December 2022, the

Board was required to have four commissioners physically present to appoint Plaintiff

to the office of Anson County Sheriff because there was no state of emergency in effect

that would have permitted remote participation. See Exec. Order No. 267 (August

15, 2020) (rescinding Executive Order 116 that put in place a state of emergency in

March 2020 and “[a]ll other provisions of Executive Order No. 116, and all other

Executive Orders conditioned upon the State of Emergency declared in Executive

Order No. 116”); see also N.C. Gen. Stat. § 166A-19.24(a). Despite this, only two of

the seven total commissioners—Commissioners Sturdivant and Smith—were

physically present at the 5 December meeting. The 5 December meeting minutes

clearly show that Commissioners Woodburn, Sims, and Bricken participated in the 5

December meeting by conference call, thus rendering it a “remote meeting” because

three of the participants were using simultaneous communication to participate. See

N.C. Gen. Stat. § 166A-19.24 (i)(3)–(4). Plaintiff’s appointment, therefore, passed

with only two out of seven votes present—which is not a quorum. Without a quorum,

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Plaintiff was not lawfully appointed to the position of Anson County Sheriff, and the

Board therefore had a vacancy in which to appoint Defendant Howell to fill. See

Cleveland Cotton Mills, 108 N.C. at 680–81, 13 S.E.2d at 272.

Accordingly, the face of Plaintiff’s quo warranto complaint, along with the

attached exhibits, show Plaintiff was not appointed to Sheriff by a quorum of the

Board, in violation of N.C. Gen. Stat. § 153A-43(a). The trial court, therefore, did not

err in granting Defendants’ motion for judgment on the pleadings. See Hebert,

___N.C. at ___, 898 S.E.2d at 724.

As Plaintiff’s quo warranto complaint demonstrates that the 5 December

meeting was not an emergency meeting, nor did the Board have a quorum,

Defendants have sufficiently shown that Plaintiff’s quo warranto complaint “admits

facts which constitute a complete legal bar.” See id. at __, 898 S.E.2d at 724. The

trial court therefore did not err by granting Defendants’ motions for judgment on the

pleadings.

IV. Conclusion

We conclude the trial court did not err in granting Defendants’ motions for

judgment on the pleadings because the face of Plaintiff’s quo warranto complaint

demonstrated that he was not lawfully appointed to the position of Anson County

Sheriff on 5 December 2022 as there was no emergency necessitating the meeting and

the Board lacked a quorum at the meeting.

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AFFIRMED.

Judge GRIFFIN concurs.

Judge THOMPSON dissents in a separate writing.

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No. COA23-1069–State of N. C. v. Anson Cnty.

THOMPSON, Judge, dissenting.

The dispositive question presented by this case is not who holds the title of

Anson County Sheriff, but whether the Anson County Board of Commissioners

violated the North Carolina Open Meetings Law by appointing and swearing in

plaintiff Cannon as the Anson County Sheriff absent an emergency and, therefore, a

quorum on 5 December 2022. Because there has been no challenge to the presumably

lawful actions of “the proper authority” to fill the vacancy, the Anson County Board

of Commissioners, “upon a proper proceeding,” the statutory remedies set forth in

N.C. Gen. Stat. §§ 143-318.16 or 143-318.16A for alleged violations of the Open

Meetings Law, I would conclude that the trial court erred in granting defendants’

motion on the pleadings, and I respectfully dissent.

North Carolina law presumes that, “[a]ny person who shall, by the proper

authority, be admitted and sworn into any office, shall be held, deemed, and taken,

by force of such admission, to be rightfully in such office until, by judicial sentence,

upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be,

in due course of law, declared void.” N.C. Gen. Stat. § 128-6 (2023) (emphases added).

It is the public policy of our State that the “public bodies that administer the

legislative, policy-making, quasi-judicial, administrative, and advisory functions . . .

exist solely to conduct the people’s business . . . [and] that the hearings,

deliberations, and actions of these bodies be conducted openly.” Id. § 143-318.9. Our

STATE OF N.C. V. ANSON CNTY.

THOMPSON, J., dissenting

legislature has provided for two remedies for alleged violations of the Open Meetings

Law, N.C. Gen. Stat. §§ 143-318.16 and 143-318.16A.

The first remedy allows for “mandatory or prohibitory injunctions to enjoin (i)

threatened violations of this Article, (ii) the recurrence of past violations of this

Article, or (iii) continuing violations of this Article.” Id. § 143-318.16 (emphasis

added). Alternatively, “[a]ny person may institute a suit in the superior court

requesting the entry of a judgment declaring that any action of a public body was

taken, considered, discussed, or deliberated in violation of this Article. Upon such a

finding, the court may declare any such action null and void.” Id. § 143-318.16A(a)

(emphasis added). Moreover, “[a] suit seeking declaratory relief under this section

must be commenced within 45 days following the initial disclosure of the action that

the suit seeks to have declared null and void.” Id. § 143-318.16A(b) (emphasis added).

“If the challenged action is recorded in the minutes of the public body, its initial

disclosure shall be deemed to have occurred on the date the minutes are first

available for public inspection.” Id. (emphasis added).

Finally, “[i]n making the determination whether to declare the challenged

action null and void, the court shall consider the following and any other relevant

factors” including:

(1) The extent to which the violation affected the substance

of the challenged action;

(2) The extent to which the violation thwarted or impaired

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STATE OF N.C. V. ANSON CNTY.

THOMPSON, J., dissenting

access to meetings or proceedings that the public had a

right to attend;

(3) The extent to which the violation prevented or impaired

public knowledge or understanding of the people’s

business;

(4) Whether the violation was an isolated occurrence, or

was a part of a continuing pattern of violations of this

Article by the public body;

(5) The extent to which persons relied upon the validity of

the challenged action, and the effect on such persons of

declaring the challenged action void;

(6) Whether the violation was committed in bad faith for the

purpose of evading or subverting the public policy embodied

in this Article.

Id. § 143-318.16A(c) (emphases added).

The majority asserts that “the face of [p]laintiff’s quo warranto complaint

shows he was appointed at an unlawful meeting where there was neither a true

‘emergency’ nor a quorum” and “therefore [the majority] do[es] not reach [p]laintiff’s

motion to dismiss [d]efendant Anson County’s counterclaim nor his motion for

summary judgment.” However, the deficiency in the majority’s analysis lies in the

fact—established by our legislature— that once an individual has been sworn into

public office by the proper authority, they are presumed to be in that office lawfully.

To declare that the action of a public body, the Anson County Board of

Commissioners’ appointment of plaintiff Cannon as Anson County Sheriff on 5

December 2022, was taken, considered, discussed, or deliberated in violation of the

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STATE OF N.C. V. ANSON CNTY.

THOMPSON, J., dissenting

Open Meetings Law, somebody needed to allege so by seeking relief through the

appropriate proceedings. Those “proper proceeding[s],” id. § 128-6, are an injunction

pursuant to N.C. Gen. Stat. § 143-318.16, or “[a] suit seeking declaratory relief under

this section [that] must be commenced within 45 days following the initial disclosure

of the actions the suit seeks to have declared null and void” pursuant to N.C. Gen.

Stat. §143-318.16A(a)-(b). These remedies were not pursued by anyone.

Today’s majority opinion misapprehends the dispositive issue raised by this

case: whether the Anson County Board of Commissioners violated the Open Meetings

Law on 5 December 2022 by appointing and swearing in plaintiff Cannon as Anson

County Sheriff absent an emergency and, therefore, a quorum? Again, as noted above,

our legislature has determined, as a matter of public policy, that the actions of a

public body are presumed to be lawful; one who seeks to challenge the actions of a

public body for violating the Open Meetings Law has two avenues to do so: by seeking

an injunction pursuant to N.C. Gen. Stat. § 143-318.16, or by bringing suit within the

appropriate period of time—forty-five days—pursuant to N.C. Gen. Stat. § 143-

318.16A.

Applying the mandatory considerations from N.C. Gen. Stat. § 143-318.16A(c),

it is possible that the majority is correct, that plaintiff Cannon may not have lawfully

been sworn in as the Anson County Sheriff because there may not have been an

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STATE OF N.C. V. ANSON CNTY.

THOMPSON, J., dissenting

emergency,4 and thereby not a quorum, at the 5 December 2022 meeting of the Anson

County Board of Commissioners. However, this is not the dispositive issue raised by

this case, as we need not determine, at this juncture, whether Anson County not

having a sheriff for a period of time, albeit just one day in the instant case, constituted

an emergency such that remote attendance of the commissioners at the 5 December

2022 meeting counted for purposes of a quorum,5 because nobody pursued the

appropriate remedies for us to address this question.

A proper resolution of plaintiff Cannon’s quo warranto action—which alleged

that the 6 December 2022 Board of Commissioners “did not have the authority to

make any appointment to the office of Anson County Sheriff as no vacancy existed

after the [5 December] 2022, appointment of [plaintiff Cannon] to the office of the

Anson County Sheriff”—would have agreed with plaintiff Cannon’s position. Even if

plaintiff Cannon was not lawfully appointed and sworn in as Anson County Sheriff

on 5 December 2022, there was no legal challenge to plaintiff Cannon’s appointment

and swearing in pursuant to the appropriate statutory remedies for an alleged

violation of the Open Meetings Law.

4 I would posit that the majority’s analysis is not correct, that there was an “emergency”; I also

note that the statute does not require a “true emergency” as the majority asserts, but simply an

“emergency,” which the statute defines as “generally unexpected circumstances.” N.C. Gen. Stat. §

143-318.12(f).

5 This question is more appropriately addressed under the mandatory statutory considerations

set forth by our legislature to challenges of the actions of a public body; for example, actions that were

“committed in bad faith for the purpose of evading or subverting the public policy embodied in this

Article.” N.C. Gen. Stat. § 143-318.16A(c)(6).

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STATE OF N.C. V. ANSON CNTY.

THOMPSON, J., dissenting

Because no challenge was brought to the presumably lawful actions of a public

body, the Anson County Board of Commissioners, through the proper proceedings—

an injunction, or a suit seeking declaratory relief brought within forty-five days

following the initial disclosure of the actions the suit seeks to have declared null and

void—plaintiff Cannon is the Anson County Sheriff. He became the Anson County

Sheriff upon his appointment and swearing in by the proper authority, the Anson

County Board of Commissioners, on 5 December 2022; he maintains that title absent

a challenge thereto. For these reasons, I would vacate the order of the trial court,

award summary judgment in plaintiff Cannon’s favor, and I respectfully dissent.

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