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No. P18-584 TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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Roy A. Cooper III, in his official capacity as Governor of

the State of North Carolina,
Plaintiff,
vs.
Philip E. Berger, in his official capacity as President Pro
Tempore of the North Carolina Senate; Timothy K. From Wake County
Moore, in his official capacity as Speaker of the North No. 18 CVS 9805
Carolina House of Representatives; North Carolina
Bipartisan State Board of Elections and Ethics
Enforcement; James A. (“Andy”) Penry, in his official
capacity as Chair of the North Carolina Bipartisan State
Board of Elections and Ethics Enforcement,
Defendants.

North Carolina State Conference of the National

Association for the Advancement of Colored People; and
Clean Air Carolina,
Plaintiffs,
vs.
Philip E. Berger, in his official capacity; Timothy K. From Wake County
Moore, in his official capacity; the North Carolina No. 18 CVS 9806
Bipartisan State Board of Elections and Ethics
Enforcement; James A. (“Andy”) Penry, in his official
capacity; Joshua Malcom, in his official capacity; Ken
Raymond, in his official capacity; Stella Anderson, in her
official capacity; Damon Circosta, in his official capacity;
Stacy Eggers IV, in her official capacity; Jay Hemphill,
in his official capacity; Valerie Johnson, in his official
capacity; and John Lewis, in his official capacity,
Defendants.

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MOTION TO DISMISS APPEAL AND
WITHDRAWAL OF PETITION FOR WRIT OF SUPERSEDEAS
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TO THE HONORABLE COURT OF APPEALS

Defendants Philip E. Berger, in his official capacity as President Pro Tempore

of the North Carolina Senate, and Timothy K. Moore, in his official capacity as

Speaker of the North Carolina House of Representatives (collectively, “Defendants”),

hereby move this Court pursuant to North Carolina Appellate Rule 37(e) and, to the

extent necessary, Rule 2, to dismiss or permit withdrawal of Defendants’ Notice of

Appeal and to dismiss or permit withdrawal of Defendants’ Petition for Writ of

Supersedeas, both of which relate to the 21 August 2018 Order on Preliminary

Injunction entered by the three-judge superior court panel. In support of this Motion,

Defendants show the following:

1. On 21 August 2018, the three-judge superior court panel consisting of

Judges Bridges, Lock, and Carpenter entered an Order on Preliminary Injunction

(the “Order”) that, among other things, enjoined the General Assembly and

Bipartisan State Board of Elections and Ethics Enforcement from “preparing any

ballots, printing any ballots or authorizing any person or entity to prepare or print

any ballots for the November 2018 general election containing the Ballot Question

language currently contained in Section 5 of Session Law 2018-117.” (21 August 2018

Order on Preliminary Injunction, pp. 29-30.) The Order similarly enjoined Section 6

of Session Law 2018-118. (See id.)

2. As part of the Order, the three-judge superior court panel invited

immediate action by the General Assembly “to correct the problems in the language

of the Ballot Questions so that these proposed amendments, properly identified and
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described, may yet appear on the November 2018 general election ballot.” (Id. at 29,

¶ 61.) The trial court also expedited their ruling to allow for appellate review.

3. All parties have sought appellate review. Defendants Berger and Moore

filed notice of appeal to this Court on 22 August 2018 and, that same day, filed a

Petition for Writ of Supersedeas and Motion for Temporary Stay here in this Court.

The NAACP filed notice of appeal to this Court but sought immediate relief from the

North Carolina Supreme Court via a petition for discretionary review prior to

consideration by the Court of Appeals and Petition for Writ of Supersedeas and

Motion for Temporary Stay from the Supreme Court. The Governor and the

Bipartisan State Board joined in requesting that all issues be transferred to the

Supreme Court via motions to bypass this Court’s review.

4. As of the filing of this Motion, the North Carolina Supreme Court has

not ruled on any of the matters pending before it.

5. This Court, however, on 23 August 2018, entered a stay directing that

no ballots for the November 2018 be printed “pending further order of this Court.”

(23 August 2018 Temporary Stay.) This Court also asked that any response to

Defendants’ petition for writ of supersedeas be filed by 9:30 AM on 27 August 2018.

It appears all parties have complied.

6. On 24 August 2018, the General Assembly called itself into a special

session to address the Order. By the end of the day, the House of Representatives

voted, by three-fifths majority, to adopt a new amendment, House Bill 4, that, similar

to the enjoined Session Law 2018-117, establishes a bipartisan board of elections and
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ethics enforcement in the Constitution. See

https://www2.ncleg.net/BillLookup/2017E2/H4. House Bill 4, while seeking to

establish a bipartisan board, does not seek to amend the separation of powers or

faithful execution of the laws clauses as had been proposed in Session Law 2018-117.

Accordingly, for this proposed amendment, the ballot question language that is to be

printed on the November 2018 ballots reads:

[ ] For [ ] Against

Constitutional amendment to establish an eight-member

Bipartisan Board of Ethics and Elections Enforcement in
the Constitution to administer ethics and elections law.

7. The General Assembly, following the invitation and direction of the

three-judge superior court panel, intends to have the amendment set forth in House

Bill 4 submitted to the voters with the ballot language quoted in paragraph 6 above.

This amendment will be submitted to the voters in lieu of the amendment (and ballot

language) in Session Law 2018-117 that is presently enjoined by the Order.

8. House Bill 4 of the 2018 Special Session was passed by three-fifths of

the Senate on 27 August 2018, was enrolled, and became effective immediately.

9. Also on 24 August 2018, the House of Representatives voted, by three-

fifths majority, to adopt a new amendment, House Bill 3, that, like Session Law 2018-

118, establishes a new process for filling judicial vacancies. See

https://www2.ncleg.net/BillLookup/2017E2/H3. House Bill 3 proposes to amend the

current procedures for filling judicial vacancies but also addresses a concern of the
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three-judge superior court panel regarding the scope of the gubernatorial veto. It also

changes the ballot question from that in Session Law 2018-118 to read as follows:

[ ] For [ ] Against

Constitutional amendment to change the process for filling

judicial vacancies that occur between judicial elections
from a process in which the Governor has sole appointment
power to a process in which the people of the State
nominate individuals to fill vacancies by way of a
commission comprised of appointees made by the judicial,
executive, and legislative branches charged with making
recommendations to the legislature as to which nominees
are deemed qualified; then the legislature will recommend
at least two nominees to the Governor via legislative action
not subject to gubernatorial veto; and the Governor will
appoint judges from among these nominees.

10. The General Assembly, following the invitation and direction of the

three-judge superior court panel, intends to have the amendment set forth in House

Bill 3 submitted to the voters with the ballot language quoted in paragraph 9 above.

This amendment will be submitted to the voters in lieu of the amendment (and ballot

language) in Session Law 2018-118 that is presently enjoined by the Order.

11. House Bill 3 was passed by three-fifths of the Senate on 27 August 2018,

was enrolled, and became effective immediately.

12. Given that the General Assembly has addressed the concerns of the

three-judge superior court panel in the Order and had time to do so given this Court’s

stay while considering the writ of supersedeas, Defendants now wish to withdraw

their notice of appeal and petition for a writ of supersedeas such that the parties are

left in the same respective positions they were in upon entry of the trial court’s Order

(i.e., the Order’s injunction is in place such that the ballot language for the
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amendments proposed in Session Laws 2018-117 and 2018-118 may not appear on

the November 2018 ballot). This process will have the practical effect of reducing

voter confusion and increasing judicial efficiency by obviating the need of the

appellate courts to further consider Session Laws 2018-117 and 2018-118 and

presenting the voters with six amendments, as originally intended by the General

Assembly.

13. The dismissal of an appeal ordinarily leaves the appellant in the

same position as if no appeal had been taken. It has been
variously stated that the decree or order appealed from becomes
final, the final decree is left in full force, or that the decree is
revitalized or reinstated. The effect of such dismissal is to leave
the parties where they were before the appellate proceeding was
instituted.

5 C.J.S. Appeal and Error § 769.

14. While Appellate Rule 37(e) allows a party who took an appeal to dismiss

that appeal without the consent of the other parties prior to the record on appeal

being filed, this is not a normal appeal, and this Court has taken some action on the

appeal, including granting a stay and considering the petitions for writ of

supersedeas. Compare N.C. App. R. 37(e) with Leggett v. Smith-Douglass Co., 257

N.C. 646, 648, 127 S.E.2d 222, 224 (1962) and In re Estate of Tucci, 104 N.C. App.

142, 150, 408 S.E.2d 859, 864 (1991).

15. Therefore, Defendants believe the better course is to move this Court to

dismiss the appeal. See, e.g., State v. Grundler, 251 N.C. 177, 185, 111 S.E.2d 1, 6–7

(1959) (“Application to withdraw appeal must be made to the proper tribunal, the

court having jurisdiction to dismiss.”); Roberts v. First Citizens Bank & Tr. Co., 345
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N.C. 755, 487 S.E.2d 758 (1997) (memorandum opinion treating withdrawal of a

petition for discretionary review as a motion to dismiss the appeal); Allen v. Rupard,

328 N.C. 328, 404 S.E.2d 864 (1991) (same).

16. Defendants also request that the Court allow their request to withdraw

the petition for writ of supersedeas with the dismissal of the appeal. See, e.g., Searcy

Steel Co. v. Mercantile Bank of Jonesboro, 719 S.W.2d 277, 281 (Ark Ct. App. 1986)

(“When the judgment-debtor’s appeal was dismissed, the prohibition of the

supersedeas against further proceedings under the writ of garnishment was

removed.”).

17. This Court’s 23 August 2018 stay order noted that there would be

further orders of this Court. Defendants request that this Court, in its discretion,

dissolve the stay and/or immediately certify the order granting Defendants’ Motion

to Withdraw to the North Carolina Supreme Court under Appellate Rule 15(h) with

or without an additional stay as this Court sees fit.

18. Defendants are aware that withdrawing their appeal will restore the

validity and effect of the Order. While Defendants intend to continue to defend the

underlying cases on their merits if the other parties insist, it is understood that the

Order and need to prepare the ballots will likely render moot Defendants’ claims

regarding Session Laws 2018-117 and 2018-118. There is, however, an opportunity

for further review of the standards at issue before the trial court on the merits.

WHEREFORE, Defendants Berger and Moore, in their official capacities,

having previously appealed the 21 August 2018 Order on Preliminary Injunction and
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having requested that this Court grant a Petition for Writ of Supersedeas and Motion

for Temporary Stay (which temporary stay was allowed on 23 August 2018), do

hereby request that this Court allow Defendants’ Motion to Withdraw their Appeal

and Petition for Writ of Supersedeas and allow such other and further relief as this

Court deems fit and, in the interest of justice and exigency, proper.

This the 27th day of August, 2018.

NELSON MULLINS RILEY & SCARBOROUGH LLP

By: /s/ Electronically Submitted

D. Martin Warf
N.C. State Bar No. 32982
martin.warf@nelsonmullins.com

N.C. R. App. P. 33(b) Certification: I certify that all of

the attorneys listed below have authorized me to list
their names on this document as if they had personally
signed it.

Noah H. Huffstetler, III

N.C. State Bar No. 7170
noah.huffstetler@nelsonmullins.com

Matthew A. Abee
N.C. State Bar No. 46949
matt.abee@nelsonmullins.com

GlenLake One, Suite 200

4140 Parklake Avenue
Raleigh, NC 27612
Telephone: (919) 877-3800

Attorneys for Defendants Philip E. Berger, in his

official capacity as President Pro Tempore of the North
Carolina Senate and Timothy K. Moore, in his official
capacity as Speaker of the North Carolina House of
Representatives
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CERTIFICATE OF SERVICE

I, D. Martin Warf, certify that on this date I served a copy of the Motion to

Dismiss Appeal and Withdrawal of Petition for Writ of Supersedeas by

electronic mail, by agreement of the parties, as set forth below:

Matthew W. Sawchak Alexander McC. Peters

Solicitor General Senior Deputy Attorney General
Amar Majmundar N.C. Department of Justice
Special Deputy Attorney General Post Office Box 629
Olga Vysotskaya de Brito Raleigh, NC 27602
Special Deputy Attorney General apeters@ncdoj.gov
N.C. Department of Justice
Post Office Box 629 Derb Carter
Raleigh, NC 27602-0629 Kimberley Hunter
msawchak@ncdoj.gov Southern Environmental Law Center
amajmundar@ncdoj.gov 601 West Rosemary Street, Suite 220
ovysotskaya@ncdoj.gov Chapel Hill, NC 27516-2356
derbc@selcnc.org
John R. Wester khunter@selcnc.org
J. Dickson Phillips, III
Adam K. Doerr Irving Joyner
Erik R. Zimmerman P.O. Box 374
Morgan P. Abbott Cary, NC 27512
Robinson Bradshaw & Hinson, P.A. ijoyner@nccu.edu
101 N. Tryon Street, Suite 1900
Charlotte, NC 28246 Daryl Atkinson
jwester@robinsonbradshaw.com Leah Kang
dphillips@robinsonbradshaw.com Forward Justice
adoerr@robinsonbradshaw.com 400 W. Main Street, Suite 203
ezimmerman@robinsonbradshaw.com Durham, NC 27701
mabbott@robinsonbradshaw.com lkang@forwardjustice.org

This the 27th day of August 2018.

[Signature on following page.]

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NELSON MULLINS RILEY & SCARBOROUGH LLP

By: /s/ D. Martin Warf

D. Martin Warf
N.C. State Bar No. 32982
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
Telephone: (919) 877-3800

Attorneys for Defendants Philip E. Berger, in his

official capacity as President Pro Tempore of the North
Carolina Senate and Timothy K. Moore, in his official
capacity as Speaker of the North Carolina House of
Representatives