John Malloy d/b/a The Dogwood Gun Club v. Michael F. Easley, et al.

On 3 March 1999, plaintiff filed a complaint in the Superior Court of Granville County seeking (1) a declaratory judgment regarding the constitutionality of a particular criminal statute, and (2) an injunction prohibiting the State of North Carolina from enforcing the statute against plaintiff. In an order entered 9 May 2000, the trial court ruled partly in favor of plaintiff and partly in favor of defendants; from that order defendants appeal and plaintiff cross-appeals. We hold that plaintiff's declaratory judgment action should have been dismissed in its entirety pursuantto North Carolina Rule of Civil Procedure 12(b)(1).

In general, a trial court may not entertain a civil declaratory judgment action brought by a plaintiff to challenge the constitutionality of a criminal statute, and to seek injunctive relief prohibiting the State from enforcing the statute against him. However, as we explain in further detail below, the law does make exceptions. Declaratory relief may be available to determine the constitutionality of a criminal statute where the plaintiff can show: (1) that the action involves only pure questions of law; (2) that a criminal prosecution is imminent or threatened; and (3) that he stands to suffer the loss of either fundamental human rights or property interests if the criminal prosecution is begun and the criminal statute is enforced. We believe that an examination of these three factors compels the conclusion that plaintiff's action must be dismissed.

We begin with a brief review of the pertinent and uncontroverted facts in the present case. Plaintiff John Malloy, a resident of Granville County, North Carolina, and a tobacco farmer by trade, owns a business called The Dogwood Gun Club. Twice a year, plaintiff hosts a five-day pigeon shoot called The Dogwood Invitational on his private property. Participation is by invitation only, and each contestant pays an entry fee of $275.00 per day, in addition to $6.00 for each “practice bird.” At the pigeon shoots, each contestant faces a ring containing a number of boxes holding one pigeon each. The boxes are opened on cue, the pigeons are released, and the contestants shoot at the pigeons. Approximately 40,000 captured pigeons are used as targets at each pigeon shoot. Pigeons that are merely wounded in the shoot are destroyed, and plaintiff disposes of all of the dead birds.

The statute at issue is N.C.G.S. § 14-360 (“Cruelty to animals; construction of section.”), which generally prohibits the intentional wounding, torturing or killing of animals, and defines such acts as either Class 1 misdemeanors or Class I felonies. See N.C. Gen. Stat. § 14-360 (1999). Plaintiff alleges that the office of the district attorney, at some point in time, “indicated it would prosecute the Plaintiff for violation of N.C.G.S. § 14-360” if plaintiff held another pigeon shoot. In addition, “Mr. Waters [] notified the Plaintiff, through counsel, that he considers the conduct at the Dogwood Invitational to be in violation of amended N.C.G.S. § 14-360 and that if given the opportunity, he will prosecute the Plaintiff.”

On 3 March 1999, plaintiff filed a complaint in the Superior Court of Granville County seeking (1) a declaratory judgment regarding the constitutionality of N.C.G.S. § 14-360 on its face and as applied to plaintiff, and (2) a preliminary and permanent injunction prohibiting enforcement of the statute by the State of North Carolina against plaintiff. Defendants subsequently filed a motion to dismiss and a motion for summary judgment. Shortly thereafter, the superior court entered an order granting a preliminary injunction enjoining defendants from enforcing N.C.G.S. § 14-360 against plaintiff. On 9 May 2000, following a full hearing on the motions, the superior court entered an ordercontaining a number of rulings. First, the superior court denied defendants' motion to dismiss the entire action pursuant to Rule 12(b)(1) (subject matter jurisdiction). With respect to the felony provisions in N.C.G.S. § 14-360, the court granted defendants' motion for summary judgment pursuant to North Carolina Rule of Civil Procedure 56 and dissolved the preliminary injunction. However, with respect to the misdemeanor provisions in N.C.G.S. § 14-360, the court granted summary judgment in favor of plaintiff and permanently enjoined defendants from enforcing the misdemeanor provisions in N.C.G.S. § 14-360 against plaintiff. Finally, the court denied defendants' motion to compel plaintiff to respond to interrogatories. Defendants appeal from this order, and plaintiff cross-appeals.

On appeal, defendants raise four assignments of error and plaintiff raises two assignments of error. Because we hold that plaintiff's complaint should have been dismissed for lack of subject matter jurisdiction, we need only address defendants' first assignment of error. By their first assignment of error, defendants argue that the superior court should have granted their motion to dismiss because the action is beyond the scope of the Declaratory Judgment Act. The Declaratory Judgment Act, N.C. Gen. Stat. §§ 1-253 to -267 (1999), provides that “(a)ny person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relationsthereunder.” N.C.G.S. § 1-254. “An actual controversy between the parties is a jurisdictional prerequisite for a proceeding under the Declaratory Judgment Act." Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 703, 249 S.E.2d 402, 414 (1978). Defendants contend that there is no actual and justiciable controversy because the question raised by plaintiff -- whether his future conduct will violate a particular criminal statute -- is an inappropriate question for a declaratory judgment action. For this reason, defendants argue, the court lacked subject matter jurisdiction. We agree.

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Reversed

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