Summary Ejectment – Undertaking on Appeals from Judgments

Subject:

Requested By: Mr. Bert M. Montague Director Administrative Office of the Courts

Question: What course should clerks of Superior Court and other court officials take in enforcing or not enforcing the portions of those statutes declared unconstitutional in Usher v. Waters Insurance & Realty Company, Inc., et al., No. 76-277 (W. Dist. of N.C., filed October 20, 1977)?

Conclusion: Clerks of Superior Court and other court officials should recognize the Usher decision as precedent and should not attempt to enforce the portions of the statutes which have been declared unconstitutional in Usher.

In the case of Usher v. Waters Insurance & Realty Company, Inc., et al., No. 76-277 (W. Dist. N.C., filed October 20, 1977), Judge James B. McMillan declared in the judgment that North Carolina General Statute § 42-32, insofar as it allows additional damages of double rent in summary ejectment, and North Carolina General Statute § 42-34(b), insofar as it requires an undertaking in an amount not less than three months’ rent, and North Carolina General Statute § 1A-1, Rule 62(a), insofar as it excepts summary ejectment cases from an automatic ten day stay of execution of judgment, are unconstitutional and unenforceable." In this judgment, Judge McMillan also specifically enjoined the Clerk of Court, the Magistrate and the Sheriff of Mecklenburg County from enforcing the portions of the statutes that were declared unconstitutional.

As a Declaratory Judgment, the judge’s ruling has the force and effect of a final judgment. Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 77 L.Ed. 730, 53 S.Ct. 345, 87 ALR 1191 (1933). This is expressly provided in the Federal Declaratory Judgment Act, 28 U.S.C. 2201, and in the Uniform Declaratory Judgment Act, which was adopted in substantially the same form by North Carolina in 1983. See, N.C.G.S. 1-253. Declaratory Judgments are res judicata as to the matters at issue between the parties, but as to others they are effective only as a precedent regarding the matters considered. See, 22 AM Jur 2d, Declaratory, § 102, pp. 971,

972.

A plaintiff class was certified in Usher on March 3, 1977. A defendant class was neither certified nor requested. Hence, the named defendants, including "their officers, agents, employees, assigns, successors, and those who work in concert with them" are the parties specifically subject to the injunction and bound by the declaratory portions of the judgment. As to clerks and court officials of counties other than Mecklenburg, the declaratory judgment is effective primarily as a precedent.

In Turner v. Blackburn, 389 F. Supp. 1250 (W.D.N.C. 1975), the court considered the propriety of enjoining a clerk of Superior Court of North Carolina where North Carolina State Statutes were declared unconstitutional as applied. Circuit Judge J. Braxton Craven, Jr., speaking for the three-judge district court, stated the following:

"This is not a class action. Presumably Blackburn’s interest is identical to that of the other 99 clerks of superior court, but their interests are not represented by him nor are they joined. To enjoin the clerk of one of 100 counties is unseemly and, we think unnecessary. County and state officers of North Carolina are not, and never have been, indifferent to the commands of the Constitution as interpreted and applied by either state or federal courts. Stare decisis in a state dedicated to the rule of law can be as effective, we think, as injunction.

As to the state’s interest in the litigation as represented by Blackburn, we will enter a judgment declaring that the statutes are not per se unconstitutional, but are unconstitutional as applied; . . ."

The above excerpt from Turner indicates that the court recognized and anticipated that North Carolina county and state officers would follow the court’s decision as a precedent without the imposition of an injunctive order to provide for the execution of its judgment. The court also recognized that enjoining one Clerk of Superior Court and not the other clerks of other counties was unseemly and unnecessary. Therefore, in Turner, the court anticipated that North Carolina would recognized the commands of the constitutions as interpreted by federal courts. The court concluded that declaratory relief in Turner would be as effective as an injunction in a state dedicated to the rule of law.

Recognizing the import of Turner, clerks, and other court officials should be award of the Usher decision and recognize its value as a precedent. In our opinion, they should not attempt to enforce the portions of the statutes which have been declared unconstitutional in Usher. Instead, uniform procedures applicable in all counties should be devised to carry out the original purpose of the statutes and to recognize the precedent set by Usher.

Rufus L. Edmisten Attorney General

Acie L. Ward Assistant Attorney General