Last week, when the NC Attorney General’s office authorized former Summerfield Town Councilmember Todd Rotruck, on behalf of the state, to sue sitting Town Councilmember Dianne Laughlin to remove her from the seat that Rotruck formerly held, there was a lot of confusion all around to say the least.
What were the implications for Rotruck’s claim to the seat he won in November 2017? Why was the state’s Attorney General weighing in on the Summerfield issue at all? What was this obscure ‘quo warrento’ law that few people had ever heard of?
Rotruck was removed from the Summerfield Town Council in April 2018 after the Guilford County Board of Elections sided with a challenger who claimed Rotruck didn’t live in Summerfield and therefore was not eligible to vote in the town. While the Board of Elections didn’t say anything about the implications of its decision for Rotruck’s seat on the Summerfield Town Council, North Carolina law states that failing to live in a city or town means “ipso, facto” that a person cannot serve on that town council or city council.
Rotruck’s spirits got a boost last week when the NC Attorney General’s office authorized him on behalf of the state to sue to get his seat back– and some of his supporters took this to mean that the Attorney General’s office might play an active role in the action. However, it will not.
This week, the Attorney General’s office explained its position as well as the reasons behind this action that’s allowing Rotruck to sue Laughlin on behalf of the State of North Carolina over her occupancy of the Town Council seat.
According to Laura Brewer, the communications director for the Attorney General’s office, actions such as this one are governed by provisions in North Carolina General Statutes, Chapter 1, Article 41. That article covers “quo warrento” cases such as this – that is, cases where there’s a claim of unjust removal from office. It states that the Attorney General “shall” grant permission to requests to sue upon the tendering of satisfactory security to indemnify the state.
Brewer stated that the office is not taking a side in the case.
“This does not indicate any opinion on the merits of the case or indicate support for the case; it only means the legal requirements have been met,” Brewer wrote. “What we look at is whether the permission being requested is for the sort of action contemplated by Article 41 and whether satisfactory security is tendered.”
The Attorney General’s office must act as a pass through for the action such as this because of the way state law is structured. A private citizen acting as a private citizen with no authority from the state couldn’t bring a suit to remove someone from office in the manner Rotruck is attempting to do with Laughlin.
“Actions of this sort can only be brought in the name of the State,” Brewer wrote. “Typically that means by the Attorney General, but in some circumstances such as this one, the AG can grant permission to a ‘private relator’ to bring the action in the name of the State.”
Brewer wrote that one requirement for approval was Rotruck providing the state with $200 for security.
“The $200 is in case costs of some kind are awarded against the State,” Brewer wrote. “Assuming no such costs are awarded by the end of the case, the money is returned. For some years, the office has determined that $200 is satisfactory security within the meaning of the statute.”
Marsh Prause, an attorney with the Winston-Salem firm of Allman Spry Davis Leggett & Crumpler, is representing Rotruck. Prause said that this is a highly unusual type of legal proceeding so he’s still learning about the particulars, but he speculated that it may be the case that, if the Attorney Generals office had found Rotruck’s claim to be “frivolous,” then the office might not have proceeded with the authorization of the action.
Summerfield Town Councilmember John O’Day said this week that the town did nothing improper in naming Laughlin to the seat – in fact, he said, the town did not throw Rotruck off the council. He said it is a state statute that states that, if someone doesn’t live in a town, then they are ipso facto removed as a Town Council member.
“The Town Council did not throw him off,” O’Day said. “The Board of Elections ruled he was not a resident and, according to NC Statute 160A-59, when that occurred his seat became vacant.”