North Carolina Reports
GOLDSTON AND HARRINGTON v. STATE AND EASLEY, 328PA04-2 (N.C. 12-15-2006) W.D. GOLDSTON, JR., JAMES E. HARRINGTON, and citizens, taxpayers, and bondholders similarly situated v. STATE OF NORTH CAROLINA and MICHAEL F. EASLEY, Governor, individually and in his official capacity. No. 328PA04-2. Supreme Court of North Carolina. Filed 15 December 2006.
On discretionary review pursuant to N.C.G.S. § 7A-31
of a unanimous decision of the Court of Appeals, 173 N.C.
App. 416, 618 S.E.2d 785 (2005), affirming a judgment
allowing summary judgment for defendants and dismissing
plaintiffs’ complaint entered 29 January 2004 by Judge
Joseph R. John, Sr. in Superior Court, Wake County. Heard in
the Supreme Court 16 October 2006.
Boyce & Isley, PLLC, by G. Eugene Boyce and Philip R.
Isley, for plaintiff-appellants.
Roy Cooper, Attorney General, by Grayson G. Kelley, Chief
Deputy Attorney General; John F. Maddrey, Assistant
Solicitor General; and Norma S. Harrell, Special Deputy
Attorney General, for defendant-appellees.
Ellis & Winters LLP, by Julia F. Youngman and Thomas H.
Segars, and Robert F. Orr for the North Carolina Institute
for Constitutional Law, amicus curiae.
EDMUNDS, Justice.
In this case, we must determine whether individual
taxpayers have standing to seek relief when they allege
government officials violated statutory and constitutional
provisions by diverting tax levies appropriated for one
purpose but disbursed for another. If so, we next must
decide whether a declaratory judgment is a proper remedy for
such a claim. We reaffirm our long-standing holdings that
taxpayers have standing to challenge unlawful or
unconstitutional government expenditures and conclude that
taxpayers are entitled to seek equitable relief in the form
of a declaratory judgment. Accordingly, we reverse the
opinion of the Court of Appeals.
The General Assembly created the North Carolina Highway
Trust Fund in 1989, establishing a special account within
the State Treasury to provide multiyear funding for highway
construction and maintenance. Act of July 27, 1989, ch.
692, secs. 1.1-2.3, 1989 N.C. Sess. Laws 1933, 1933_97
(codified at N.C.G.S. §§ 136_175 to _184.) The
Trust Fund is funded through several revenue streams,
including motor vehicle title and registration fees; motor
fuels excise taxes; alternative fuels excise taxes; motor
vehicle use taxes; and interest and income earned by the
Trust Fund. As originally enacted, Trust Fund revenues were
to be used only for specified projects of the Intrastate
Highway System, for specific urban loop highways, and to
provide supplemental appropriations for specific secondary
roads and for city streets , with a small portion of the
Trust Fund allotted for administrative expenses . In
addition, the 1989 statute creating the Trust Fund directed
that a portion of motor vehicle use taxes be transferred
each year from the Trust Fund to the State’s General Fund.
Id., sec. 4.1 at 1982_83. In 1989, $279,400,000 was
transferred to the General Fund. Id., sec. 4.3 at 1983_84.
That sum has been adjusted each succeeding fiscal year in
accordance with fluctuations in motor vehicle use
taxcollections, N.C.G.S. § 105-187.9(b)(2),
resulting in a total transfer of $252,400,000 for the
2002_2003 fiscal year.
During the 2001_2002 fiscal year, the State faced a budget
shortfall. Because Article III, Section 5(3) of the North
Carolina Constitution does not allow a deficit for any
fiscal period, on 5 February 2002, the Governor, as
administrator of the budget, issued Executive Order Number
19. Exec. Or. 19, 16 N.C. Reg. 1866 (Mar. 1, 2002). Among
other measures, this Executive Order stated that the Office
of State Budget and Management could “transfer, as
necessary, funds from the Highway Trust Fund Account for
support of General Fund appropriation expenditures.” Id.
Accordingly, on 8 February 2002, the State Budget Officer
directed that $80,000,000 be debited from the Highway Trust
Fund and credited to the General Fund.
The State faced another budget shortfall for the 2002_2003
fiscal year, and, effective 1 July 2002, the General
Assembly transferred an additional $125,000,000 from the
Trust Fund to the General Fund. Current Operations, Capital
Improvements, and Finance Act of 2002, ch. 126, sec.
2.2(g), 2001 N.C. Sess. Laws (Extra Sess. 2002) 291, 298_99.
The General Assembly treated this transfer as a loan from
the Trust Fund to the General Fund, with the General
Assembly committing itself to returning the $125,000,000,
including interest, to the Trust Fund during fiscal years
2004_2005 through 2008_2009. Id., secs. 2.2(g) at 298_99,
26.14 at 457.
Plaintiffs Goldston and Harrington, as North Carolina
citizens and taxpayers, brought suit against the State and
Governor in November 2002. Plaintiffs alleged the transfers
of $80,000,000 by the Governor and $125,000,000 by the
General Assembly from the Trust Fund to the General Fund
were unlawful diversions of Trust Fund assets because
disbursement of those funds is not allowed for any projects
other than those specified by statute. The pertinent
statute states that the “special objects” of the Trust Fund
are the intrastate highways, urban loops, city streets,
secondary roads, debt service, and Department of
Transportation administrative expenses. N.C.G.S. §
136-176(b) (2005). In addition, plaintiffs also contended
these transfers violated the North Carolina Constitution,
which mandates that “[e]very act of the General Assembly
levying a tax shall state the special object to which it is
to be applied, and it shall be applied to no other
purpose.” N.C. Const. art. V, § 5. Plaintiffs
asserted that the statutorily defined “special objects” of
the Trust Fund preclude use of Trust Fund assets for
General Fund expenditures. Finally, plaintiffs alleged the
Governor exceeded his constitutional authority under
Article III, Section 5(3). This provision requires the
Governor to administer the budget and to ensure that the
State does not incur a deficit for any fiscal period, but
does not, plaintiffs contend, authorize the Governor to
order transfers from the Trust Fund to the General Fund
because the Trust Fund is separate from the General Fund
and the annual budget process.
Filing suit both as individual taxpayers and on behalf of
other citizens similarly situated, plaintiffs alleged they
were injured because they had paid motor fuel taxes, title
and registration fees, and other highway taxes which by law
were collected expressly for application to the Highway
Trust Fund but had been diverted for other uses. They
argued defendants’ actions constituted both a current and
future threat of illegal and unconstitutional depletion of
Trust Fund assets.
Plaintiffs requested injunctive and declaratory relief,
seeking both a declaration that defendants’ actions were
illegal and unconstitutional and an immediate return of the
monies at issue to the Trust Fund. Plaintiffs later
abandoned their prayer for relief in the nature of mandamus
through which they had requested return of the funds , but
they continued to maintain that they faced the threat of
future illegal and unconstitutional disbursements from the
Trust Fund. In response, the State and the Governor filed a
motion to dismiss, arguing that plaintiffs lacked standing
“in that they have failed to allege the necessary facts to
bring this suit: based on their status as citizens or
taxpayers or bondholders; based on any alleged contractual
or impairment claim; or on any other basis establishing
their right to bring such claim against defendants.” In
addition, defendants also claimed that plaintiffs failed to
state a claim for relief. Plaintiffs and defendants both
filed motions for summary judgment.
The trial court merged its consideration of defendants’
motion to dismiss and motion for summary judgment, then
granted summary judgment for defendants while denying
summary judgment for plaintiffs. Plaintiffs appealed, and
on 20 September 2005, a unanimous panel of the Court of
Appeals affirmed the trial court”to the extent that the
trial court’s order is a dismissal for lack of standing.”
Goldston v. State, 173 N.C. App. 416, 422, 618 S.E.2d 785,
790 (2005). Plaintiffs appealed to this Court, and on 2
March 2006, we allowed defendants’ motion to dismiss
plaintiffs’ appeal based on a constitutional question but
allowed plaintiffs’ petition for discretionary review of
the Court of Appeals decision as to the issue of standing.
360 N.C. 363, 629 S.E.2d 850 (2006).
In their briefs, the parties discuss distinctions between
“constitutional standing,” “direct standing,” and
“derivative standing” that have never been recognized by
this Court. While we do not now pass on the validity of
these classifications, we believe that the issue presented
in this case can be resolved by reference to our existing
case law.
This Court has stated that “‘[t]he “gist of the question of
standing” is whether the party seeking relief has “alleged
such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions.”‘” Stanley v. Dep’t of Conservation & Dev., 284
N.C. 15, 28, 199 S.E.2d 641, 650 (1973) (quoting Flast v.
Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 961 (1968)
(citation omitted)). We recognized as early as the
nineteenth century that taxpayers have standing to challenge
the allegedly illegal or unconstitutional disbursement of
tax funds by local officials. In Stratford v. City of
Greensboro, a taxpayer sought to enjoin Greensboro city
authorities from street construction that the taxpayer
alleged was undertaken for the benefit of a private citizen
rather than for the benefit of the public. 124 N.C. 110,
111_12, 124 N.C. 127, 128_30, 32 S.E. 394, 395 (1899). We
found “‘no serious question'” that a taxpayer had an
equitable right to sue “‘to prevent an illegal disposition
of the moneys of the county.'” Id. at 114, 124 N.C. at 134,
32 S.E. at 396_97 (quoting Crampton v. Zabriskie, 101 U.S.
601, 609, 25 L. Ed. 1070, 1071 (1879)). We observed that
“[i]f such rights were denied to exist against municipal
corporations, then taxpayers and property owners who bear
the burdens of government would not only be without remedy,
but be liable to be plundered whenever irresponsible men
might get into the control of the government of towns and
cities.” Id. at 114, 124 N.C. at 133_34, 32 S.E. at 396.
Later, in Freeman v. Board of County Commissioners, we
considered taxpayer actions against county officials. 217
N.C. 209, 7 S.E.2d 354 (1940). In that case, two taxpayers
sought an injunction to prevent a board of county
commissioners from “making illegal disbursements of public
funds by the payment of salaries to unauthorized persons.”
Id. at 212, 7 S.E.2d at 357. Before addressing the merits,
we determined that “[f]or this purpose the plaintiffs have
a standing in court as parties with a legal interest in the
controversy.” Id. Similarly, in McIntyre v. Clarkson, a
taxpayer challenged the constitutionality of a statute
providing for the appointment of justices of the peace and
for payment of their salaries from the general fund of the
county. 254 N.C. 510, 513, 119 S.E.2d 888, 890 (1961).
Although the defendants argued that the taxpayer did not
have a sufficient interest in the controversy to maintain
an action for himself and others similarly situated, we
concluded the taxpayer had standing, observing that “this
Court has in numerous cases determined the
constitutionality of statutes upon suit for injunctive
relief by taxpayers where the expenditure of public funds
is involved.” Id.
More recently, in Lewis v. White, we addressed taxpayer
actions against state officials. 287 N.C. 625, 216 S.E.2d
134 (1975), superceded by statute, Environmental Policy
Act, N.C.G.S. § 113A-4, as recognized in
Charlotte-Mecklenburg Hosp. Auth. v. N.C. Indus. Comm’n,
336 N.C. 200, 443 S.E.2d 716 (1994). There, taxpayers sued
the Art Museum Building Commission, a state agency,
alleging that the Commission’s members exceeded their
statutory authority in numerous ways, including failure to
comply with the Executive Budget Act in expending funds
related to constructing a proposed State Art Museum
Building. Id. at 629, 216 S.E.2d at 137. Although the
defendants claimed sovereign immunity should protect them
from suit, we held “[t]he proceeds of State tax levies
appropriated by the General Assembly for one purpose may
not lawfully be disbursed by State officers for a different
purpose and a citizen and taxpayer of the State may sue to
restrain such illegal diversion of public funds.” Id. at
644, 216 S.E.2d at 146. A taxpayer’s right to seek
equitable relief “‘to enjoin the governing body of a
municipal corporation from transcending their lawful powers
or violating their legal duties in any mode which will
injuriously affect the taxpayers_such as making an
unauthorized appropriation of the corporate funds, or an
illegal or wrongful disposition of the corporate property,
etc.,_is well settled.'” Id. (quoting Merrimon v. S. Paving
& Constr. Co., 142 N.C. 427, 431_32, 142 N.C. 539, 545_46,
55 S.E. 366, 367_68 (1906) (comparing the right of
taxpayers to sue government officials for illegal
disbursements with right of shareholders of a corporation
to bring ultra vires shareholder suits)).
In a case strikingly similar to the case at bar, we found
taxpayer standing when the challenge involved the allegedly
illegal diversion of public funds away from highway
construction. In Teer v. Jordan, the defendants were
members of the State Highway and Public Works Commission.
232 N.C. 48, 59 S.E.2d 359 (1950). The General Assembly
authorized and the voters approved the issuance of
$200,000,000 in State bonds “‘exclusively for . . .
secondary roads.'” Id. at 49, 59 S.E.2d at 360. The
plaintiff was a “resident and taxpayer of Durham County”
who operated motor vehicles “over and along the roads of
the County and State” and was “subject to the gallonage tax
on motor fuels.” Id. Alleging that the defendants, as
chairman and members of the State Highway and Public Works
Commission, were “illegally diverting the proceeds of the
bond issue, which was to be devoted exclusively to the
construction or improvement of secondary roads, to the
purchase of machinery and equipment in the amount of
$5,000,000,” the plaintiff sought a restraining order. Id.
at 49_50, 59 S.E.2d at 361. The defendants argued the
plaintiff lacked standing to bring the suit. Id. at 50, 59
S.E.2d at 361. We disagreed. “[W]e are not disposed to deny
the right of an individual who is one of those for whose
benefit the law was enacted to be heard on allegations of
an illegal diversion of public funds which may in some
degree injuriously affect his rights as a citizen,
taxpayer, and user of secondary public roads.” Id. at 51,
59 S.E.2d at 362. An unlawful diversion of funds “might
result in the diminution of the amount allocated” to the
roads in the taxpayer’s county. Id. Although we cautioned
that government agencies should not be hindered by lawsuits
from taxpayers who merely disagree with the policy
decisions of government officials, we concluded that “the
right of a citizen and taxpayer to maintain an action in the
courts to restrain the unlawful use of public funds to his
injury cannot be denied.” Id. (citing, inter alia, Freeman,
217 N.C. 209, 7 S.E.2d 354 (1940)).
Thus, our cases demonstrate that a taxpayer has standing to
bring an action against appropriate government officials
for the alleged misuse or misappropriation of public funds.
Accordingly, plaintiffs were properly before the trial
court.
We next consider the form of relief sought by plaintiffs,
who filed a declaratory judgment action under the North
Carolina Uniform Declaratory Judgment Act (NCUDJA).
N.C.G.S. §§ 1-253 to-267 (2005). The North
Carolina Constitution provides that “every person for an
injury done him in his lands, goods, person, or reputation
shall have remedy by due course of law.” N.C. Const. Art.
I, § 18. Consistent with this mandate, the NCUDJA
provides “[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 relations thereunder.”
N.C.G.S. § 1-254. “A declaratory judgment may be used
to determine the construction and validity of a statute.”
Town of Emerald Isle v. State, 320 N.C. 640, 646, 360
S.E.2d 756, 760 (1987).
Although a declaratory judgment action must involve an
“actual controversy between the parties,” plaintiffs are
“not required to allege or prove that a traditional `cause
of action’ exists against defendant[s] in order to
establish an actual controversy.” Id. (citations omitted).
“[A] declaratory judgment should issue `(1) when [it] will
serve a useful purpose in clarifying and settling the legal
relations at issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity and
controversy giving rise to the proceeding.” Augur v. Augur,
356 N.C. 582, 588, 573 S.E.2d 125, 130 (2002) (quoting
Edwin Borchard, Declaratory Judgments 299 (2d ed. 1941))
(alterations in original); see also N.C.G.S. § 1-257
(2005).
Taxpayers in this state have a valid interest in the
building and maintenance of roads and highways across North
Carolina. Plaintiffs here are similar to the taxpayer
plaintiffs in Teer, Lewis, and other cases discussed above.
Their claim of illegal and unconstitutional diversion of
funds derived from taxes paid by plaintiffs and others
similarly situated is an actual controversy between the
parties. A declaratory judgment would serve to clarify and
settle the legal rights and responsibilities of the
Governor and the General Assembly, as well as the legal
status of the taxpayer funds in the Highway Trust Fund. A
declaratory judgment also would terminate the uncertainty
and controversy giving rise to the action. Accordingly,
taxpayers have standing to seek equitable relief and a
declaratory judgment when alleging government officials
violated statutory or constitutional provisions by
diverting tax levies appropriated for one purpose but
disbursed for another.
Although plaintiffs originally sought to compel return of
the challenged assets to the Trust Fund, they later
abandoned that portion of their claim. In other words,
plaintiffs are now seeking to obtain a declaration by a
court that defendants acted illegally without also seeking
additional redress for the wrong. In so doing, plaintiffs
contend they will deter future similar actions by the State.
We now consider whether plaintiffs may seek only this
limited remedy.
Declaratory relief “does not seek execution or performance
from the defendant or opposing party.” Declaratory
Judgments at 25 (citing, inter alia, N.C.G.S. §
1-253) (noted to be the “preeminent treatise on declaratory
judgments,” Auger, 356 N.C. at 588, 573 S.E.2d at 130).
Although a declaratory judgment can seek an executory or
coercive decree, id. at 26, in some instances “the simple
declaratory adjudication of the illegality of the act
complained of [is] the most assured and effective remedy
available,” id. at 884. Indeed, “a citizen seeking a
declaration of the illegality” of a governmental act “often
finds himself enmeshed in the intricacies of certiorari,
injunction, mandamus, quo warranto, habeas corpus, or
prohibition” and “has often been forced into a mystic
maze,” when the citizen sought nothing more than to
ascertain whether a government action “is valid or not, or,
if valid, what it means.” Id. at 875. “The reluctance of
courts to mandamus or enjoin officials, often for sound
reasons, is an indication of their special position_a fact
which makes a declaration of their duty as effective as a
command to perform it or an injunction not to transgress.”
Id. at 876.
Accordingly, declaratory judgment remains an appropriate
remedy here. A declaration as to the legality and
constitutionality of the Governor’s and the General
Assembly’s diversions from the Trust Fund may well be “the
most assured and effective remedy available.” If plaintiffs
ultimately prevail, their point is made. Similar future
diversions will be obviated without requiring that the
State undertake substantial and undoubtedly disruptive
budgetary gyrations necessary to return immediately the
funds at issue. If plaintiffs do not prevail, the Governor
and the General Assembly will have done no harm.
We observe that, in finding plaintiffs lack standing to
bring their claims against the Governor and the General
Assembly, the Court of Appeals relied upon federal standing
doctrine. Goldston, 173 N.C. App. 416 passim, 618 S.E.2d
785 passim (citing Neuse River Found., Inc. v. Smithfield
Foods, Inc., 155 N.C. App.110, 574 S.E.2d 48 (2002) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d
351 (1992)), disc. rev. denied, 356 N.C. 675, 577 S.E.2d
628 (2003); id. at 419, 618 S.E.2d at 788 (quoting Neuse
River Found., 155 N.C. App. at 114, 574 S.E.2d at 52
(quoting Lujan, 504 U.S. at 550_61, 119 L. Ed. 2d at 364)).
This reliance was misplaced. While federal standing doctrine
can be instructive as to general principles (as in our
previous reference to Flask v. Cohen) and for comparative
analysis, the nuts and bolts of North Carolina standing
doctrine are not coincident with federal standing doctrine.
Compare Piedmont Canteen Serv., Inc. v. Johnson, 256 N.C.
155, 166, 123 S.E.2d 582, 589 (1962) (“Only those persons
may call into question the validity of a statue who have
been injuriously affected thereby in their persons,
property or constitutional rights.” (emphasis added)), with
Lujan v. Defenders of Wildlife, 504 U.S. at 560, 119 L. Ed.
2d at 364 (noting that one of the three elements of federal
standing is an “‘injury in fact'” that is “concrete and
particularized”).
Finally, we express no opinion as to the legality or
constitutionality of the Governor’s and the General
Assembly’s diversions of a total of $205,000,000 from the
Trust Fund to the General Fund. Instead, we hold only that
these taxpayers, like the taxpayers in Teer and Lewis, have
standing to challenge the government expenditures as
illegal or unconstitutional. “The burden is upon the
plaintiffs to prove the alleged violations or proposed
violations of the law by the defendants. When given the
opportunity to present their evidence in support of their
allegations, they may or may not `get to first base,’ but
they are entitled to their turn at bat, which right the
judgment of the Superior Court erroneously denied them.”
Lewis, 287 N.C. at 644-45, 216 S.E.2d at 147.
The Court of Appeals is reversed. The case is remanded to
the Court of Appeals for further remand to the trial court.
REVERSED and REMANDED.
Justices MARTIN and TIMMONS-GOODSON did not participate in
the consideration or decision of this case.
Chief Justice PARKER dissenting.
In my view, plaintiffs lack standing to maintain an action
under the Uniform Declaratory Judgment Act, N.C.G.S.
§§ 1-253 to-267.
This Court has noted that jurisdiction under the
Declaratory Judgment Act may be invoked “only in a case in
which there is an actual or real existing controversy
between parties having adverse interests in the matter in
dispute.” Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404, and
cases cited. It must appear that “a real controversy,
arising out of their opposing contentions as to their
respective legal rights and liabilities under a deed, will
or contract in writing, or under a statute, municipal
ordinance, contract or franchise, exists between or among
the parties, . . .” Light Co. v. Iseley, 203 N.C. 811, 167
S.E. 56. The existence of such genuine controversy between
parties having conflicting interests is a “jurisdictional
necessity.” Tryon v. Power Co., 222 N.C. 200, 22 S.E.2d
450.
“It is no part of the function of the courts, in the
exercise of the judicial power vested in them by the
Constitution, to give advisory opinions, . . .” Stacy,
C.J., in Poore v. Poore, 201 N.C. 791, 161 S.E. 532. “The
statute (G.S. 1-253 et seq.) does not require the Court to
give a purely advisory opinion which the parties might, so
to speak, put on ice to be used if and when occasion might
arise.” Seawell, J., in Tryon v. Power Co., supra. “The
Uniform Declaratory Judgment Act does not license litigants
to fish in judicial ponds for legal advice.” Ervin, J., in
Lide v. Mears, supra. Also, see Calcutt v. McGeachy, 213
N.C. 1, 195 S.E. 49; Trust Co. v. Whitfield, 238 N.C. 69, 76
S.E.2d 334, and NASCAR, Inc. v. Blevins, 242 N.C. 282, 87
S.E.2d 490.
The validity of a statute, when directly and necessarily
involved, Person v. Watts, 184 N.C. 499, 115 S.E. 336, may
be determined in a properly constituted action under G.S.
1-253 et seq., Calcutt v. McGeachy, supra; but this may be
done only when some specific provision(s) thereof is
challenged by a person who is directly and adversely
affected thereby. Compare Fox v. Comrs. of Durham, 244 N.C.
497, 94 S.E.2d 482.
City of Greensboro v. Wall, 247 N.C. 516, 519-20, 101
S.E.2d 413, 416 (1958). Further, a declaratory judgment
should issue “(1) when [it] will serve a useful purpose in
clarifying and settling the legal relations at issue, and
(2) when it will terminate and afford relief from the
uncertainty, insecurity and controversy giving rise to the
proceeding.” When these criteria are not met, no
declaratory judgment should issue. Thus, declaratory
judgments should not be made “‘in the air,’ or in the
abstract, i.e. without definite concrete application to a
particular state of facts which the court can by the
declaration control and relieve and thereby settle the
controversy.”
Augur v. Augur, 356 N.C. 582, 588, 573 S.E.2d 125, 130
(2002) (citing and quoting Edwin Borchard, Declaratory
Judgments 299, 306 (2d ed. 1941)). The Court in Augur also
noted the language in N.C.G.S. § 1-257 allowing a
trial court the discretion to refuse to issue a declaratory
judgment when such relief “‘would not terminate the
uncertainty or controversy giving rise to the proceeding.'”
Id. at 587-88, 573 S.E.2d at 130 (quoting N.C.G.S. §
1-257 (2001)). Although the Declaratory Judgment Act does
not include a specific requirement of an actual controversy
between the parties, as the above cited cases amply
demonstrate, North Carolina case law imposes such a
requirement. See Sharpe v. Park Newspapers of Lumberton,
Inc., 317 N.C. 579, 583, 347 S.E.2d 25, 29 (1986) (citing
Gaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230,
234, 316 S.E.2d 59, 61 (1984)). Generally, [a] case is
considered moot when “a determination is sought on a matter
which, when rendered, cannot have any practical effect on
the existing controversy.” Roberts v. Madison Cty. Realtors
Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996).
Courts will not entertain such cases because it is not the
responsibility of courts to decide “abstract propositions
of law.” In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890,
912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297
(1979).
Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877, 879
(2003). A controversy must exist between the parties both
at the time the complaint is filed and at the time of
hearing. See Sharpe, 317 N.C. at 585-86, 347 S.E.2d at 30.
Although “[i]t is not necessary for one party to have an
actual right of action against another for an actual
controversy to exist which would support declaratory
relief[,] it is necessary that the Courts be convinced that
the litigation appears to be unavoidable.” N.C. Consumers
Power, Inc. v. Duke Power Co., 285 N.C. 434, 450, 206
S.E.2d 178, 189 (1974) (citing 22 Am. Jur. 2d Declaratory
Judgments § 11 (1965)).
The cases cited by plaintiffs to support standing involve
challenges to prospective misuse of tax money or public
property. See Lewis v. White, 287 N.C. 625, 644-45, 216
S.E.2d 134, 146-47 (1975) (holding that citizens could
bring an action to prevent the construction of a “Cultural
Complex” with tax funds appropriated solely for the purpose
of building an art museum), superseded on other grounds by
statute, North Carolina Environmental Policy Act of 1971,
codified as N.C.G.S. § §§ 113A-1
to-10, as recognized in Corum v. Univ. of N.C., 330 N.C.
761,786, 413 S.E.2d 276, 292, cert. denied, 506 U.S. 985,
121 L.Ed. 2d 431 (1992); Shaw v. City of Asheville, 269
N.C. 90, 95-96, 152 S.E.2d 139, 143-44 (1967) (holding that
citizens and taxpayers of a municipality had standing to
bring a suit challenging the validity of an agreement
between a municipality and a cable company because the
taxpayers could incur significant expense to repair
uncompleted work if the agreement was later determined to
be void); Wishart v. City of Lumberton, 254 N.C. 94, 96,
118 S.E.2d 35, 36 (1961) (holding that a municipality’s
citizens and taxpayers had standing to seek an injunction
prohibiting the municipality from abandoning and converting
to a different use land set aside as a public park).
In this case, however, the challenged governmental action
has already occurred. Plaintiffs’ complaint alleges that
two transfers from the Highway Trust Fund to the General
Fund constituted unlawful disbursements contrary to the
stated purposes in the relevant statute. Plaintiffs
initially sought mandamus relief ordering all transfers be
returned to the Highway Trust Fund but withdrew this claim
and presently seek only a declaration of the illegality of
those past transfers.
This Court has previously addressed taxpayer standing to
challenge a legislative act. See Nicholson v. State Educ.
Assistance Auth., 275 N.C. 439, 168 S.E.2d 401 (1969). In
Nicholson, this Court noted that it will not determine the
constitutionality of a legislative provision in a
proceeding in which there is no “actual antagonistic
interest in the parties.” Bizzell v. Insurance Co., 248
N.C. 294, 103 S.E.2d 348. “Only one who is in immediate
danger of sustaining a direct injury from legislative
action may assail the validity of such action. It is not
sufficient that he has merely a general interest common to
all members of the public.” Charles Stores v. Tucker, 263
N.C. 710, 140 S.E.2d 370 .
Id. at 447, 168 S.E.2d at 406. The Court also addressed the
standing of taxpayers generally:
A taxpayer, as such, does not have standing to attack the
constitutionality of any and all legislation. Wynn v.
Trustees, 255 N.C. 594, 122 S.E.2d 404; Carringer v.
Alverson, 254 N.C. 204, 118 S.E.2d 408; Fox v.
Commissioners of Durham, supra; Turner v. Reidsville,
supra. A taxpayer, as such, may challenge, by suit for
injunction, the constitutionality of a tax levied, or
proposed to be levied, upon him for an illegal or
unauthorized purpose. See: Wynn v. Trustees, supra; Barbee
v. Comrs. of Wake, 210 N.C. 717, 188 S.E. 314. The
constitutionality of a provision of a statute may not,
however, be tested by a suit for injunction unless the
plaintiff alleges, and shows, that the carrying out of the
provision he challenges will cause him to sustain,
personally, a direct and irreparable injury, apart from his
general interest as a citizen in good government in
accordance with the provisions of the Constitution. D & W,
Inc. v. Charlotte, 268 N.C. 577, 151 S.E.2d 241; Watkins v.
Wilson, supra; Fox v. Commissioners of Durham, supra;
Sprunt v. Comrs. of New Hanover, 208 N.C. 695, 182 S.E.
655; Newman v. Comrs. of Vance, 208 N.C. 675, 182 S.E. 453.
Id. at 447-48, 168 S.E.2d at 406.
In Stanley, cited in the majority, this Court distinguished
the case before it from Nicholson on “factual and
procedural differences,” specifically that the plaintiff in
Nicholson sought an injunction and nullification of prior
transactions involving the defendant agency, and that the
Court there ruled that plaintiff “showed no threat of
immediate irremediable injury to him,” and was, therefore,
not entitled to injunctive relief. Stanley v. Department of
Conservation & Dev., 284 N.C. 15, 30-31, 199 S.E.2d 641,
651-52 (1973). Thus, the plaintiffs in Stanley, a case in
which the allegedly unconstitutional actions had not yet
occurred, had standing.
Although plaintiffs alleged that defendants “threatened”
future withdrawals from the Trust Fund, they acknowledged
the General Assembly’s authority to “enact new legislation
relating to collection [of] taxes prospectively and
appropriate prospectively expenditures.” Plaintiffs alleged
that their claims related to “unlawful and unconstitutional
spending of Highway Trust Funds for purposes not specified
by tax laws at the time of collection as required by the
Constitution and the threat of future misappropriation.”
(Emphasis added.)
Nothing in the record, however, suggests that future action
by the Governor or the General Assembly would give rise to
a controversy rendering litigation unavoidable. If any
future transfers from the Highway Trust Fund to the General
Fund are contemplated, the General Assembly could, as
conceded by plaintiffs, enact legislation authorizing such
transfers. The judgment sought by plaintiffs will do nothing
to settle any existing controversy, and any judgment issued
in this matter constitutes an advisory opinion. The
Declaratory Judgment Act does “not undertake to convert
judicial tribunals into counsellors and impose upon them
the duty of giving advisory opinions to any parties who may
come into court and ask for either academic enlightenment
or practical guidance concerning their legal affairs.” Lide
v. Mears, 231 N.C. 111, 117, 56 S.E.2d 404, 409 (1949).
The Court of Appeals below correctly held that the
authority cited by plaintiffs as grounds for what they
termed “constitutional standing” does “not authorize
citizens to sue for a court declaration that past
government action, and unthreatened recurrences, are
unlawful.” Goldston v. State, 173 N.C. App. 416, 420, 618
S.E.2d 785, 789 (2005).
For the foregoing reasons, I respectfully dissent.