On Monday, June 4, Superior Court Judge Susan Bray dismissed a lawsuit that former Summerfield Town Councilmember Todd Rotruck had filed against the town.
The suit was an attempt by Rotruck to regain his seat on the council after Summerfield Town Manager Scott Whitaker and Town Attorney Bill Hill advised that he could not participate in council meetings because the Guilford County Board of Elections determined in April that Rotruck lived in Greensboro rather than Summerfield.
Bray said the proper way to address the dispute was through another court case that hasn’t been heard yet – a Superior Court appeal of the Board of Elections’ decision. Bray said that hopefully the court could fast track that case and get the issue resolved quickly.
The attorneys said they expect the appeal to be heard in early to mid July.
The June 4 hearing was the third time in the last month that the Rotruck issue has been in court. The previous two times the cases came before Superior Court Judge Andy Cromer and there has been disagreement between the attorneys on the two sides as to the correct way to interpret Judge Cromer’s decisions. When Bray heard the June 4 motion to dismiss, she asked to see Cromer’s written decision, but there was no written signed order at that time.
Rotruck said Monday, after the decision that, while he was disappointed the judge dismissed his suit against the town, his central battlefield remained the Board of Elections appeal. Rotruck said it was clear that Bray’s decision wasn’t based on the merits of his appeal and it was not a denial of his Summerfield residency claims, but instead the decision turned on a point of law – “a technicality,” Rotruck called it – as to whether suing the town to regain his seat was the correct way to address his grievance.
Rotruck was elected to the Summerfield Town Council last November; however, earlier this year, Janelle Robinson, a resident of the town who frequently drove past the Strawberry Road home where Rotruck claims to reside, filed the challenge to Rotruck.
Rotruck said this week that he still lives at the house on Strawberry Road, though he added that his family resides in Greensboro and that house also acts as a “secondary” home for him. He said he spends the majority of his time at the Strawberry Road house where he is overseeing renovations as well as doing a lot of work there himself. He said the work has taken longer than he originally anticipated but that his family plans to move back into the house once the work is finished. He said that at that time both he and his family will reside at the Strawberry Road house.
In April, the Guilford County Elections Board found Rotruck lived at 3629 Lewiston Road in Greensboro and voted unanimously to uphold Robinson’s voter residency challenge, and, immediately after that decision, Rotruck’s name was off the town’s website and some Summerfield officials were saying Rotruck couldn’t serve on the council since state law requires town councilmembers or city councilmembers to reside in the town or city they represent. North Carolina law states that once someone no longer resides in the city or town, he or she is “ipso facto” off the council.
Soon after the mid-April decision by the Elections Board, Rotruck filed an appeal of that decision in Superior Court and he simultaneously filed this lawsuit, also in Superior Court, against the Town of Summerfield for removing him from the council. He requested a temporary restraining order that would allow him to continue to serve until his appeal was decided.
At the June 4 hearing, Bray ruled in favor of Summerfield, but if Rotruck wins his appeal with the Board of Elections, he could end up back on the Summerfield Town Council. Even that’s a question mark, however, because a court victory in that appeal could result in yet another legal battle if Summerfield wanted to continue the fight.
At the June 4 hearing, Rotruck was represented by Marsh Prause, with the Winston-Salem firm of Allman Spry Davis Leggett & Crumpler, while Summerfield was represented by Hill and outside attorney Gray Wilson with Nelson Mullins Riley & Scarborough, another Winston-Salem firm.
Wilson argued that Summerfield had not taken any action against Rotruck and that Rotruck’s complaint, if there was one, was with the Board of Elections, not Summerfield.
“The town is not a party,” Wilson told Bray.
Once the Board of Elections determined Rotruck didn’t live in Summerfield, he said, the state statute that requires residency of elected councilmembers is what knocked Rotruck off the council.
“Ipso facto means automatically,” Wilson said.
He added that Rotruck had the right to appeal the Elections Board decision and that process is underway, but the complaint against Summerfield, he added, wasn’t warranted because the town played no role in Rotruck’s removal from the council.
“He is not without a remedy in this case; he just can’t pursue it in this court,” Wilson said.
Prause, on the other hand, argued that Rotruck’s removal did require a decision and he said that decision was made improperly by Whitaker and Hill.
“The town has stopped recognizing him,” Prause said. “The town has made a decision. They have interpreted the statute to exclude Mr. Rotruck.”
Prause added that, though the Town Council hadn’t taken any vote on the matter, Whitaker and Hill had taken action. He said Whitaker, as town manager, doesn’t have the authority to remove Rotruck, given Rotruck’s constitutional right to serve after being duly elected by the town’s voters.
“The town manager has limited powers,” Prause said. “Those powers do not include the powers to remove an elected official.”
He also pointed out that, since the Summerfield Town Council had never voted on the Rotruck matter, the decision clearly didn’t come from that body.
Prause said that the parties wouldn’t even be in court on that day if Summerfield hadn’t jumped the gun and instead had let the process play out without intervening.
“Two people are nullifying the results of an election,” Prause said, referring to Whitaker and Hill.
After Rotruck was elected, he led an effort that called for Summerfield not to renew Whitaker’s employment contract as town manager. At the June 4 hearing, Prause told Bray that Whitaker had a personal interest in seeing Rotruck off the council because Whitaker knew Rotruck would “pursue an agenda that would basically have ended Mr. Whitaker’s employment with the town.”
Prause also pointed out that the Board of Elections’ decision was a narrow one that only dealt with Rotruck’s eligibility as a voter.
During that residency hearing in front of the Elections Board in April, the discussion was only on whether or not Rotruck was qualified to vote in Summerfield; the Board of Elections was completely silent on any implication that decision might have for Rotruck’s continued service as a councilmember.
“All the Board of Elections did was determine Mr. Rotruck could not vote [in Summerfield],” Prause said.
It was clear at the June 4 hearing that there was little case law to go on. Bray asked if there had ever been a case in North Carolina where a board of elections residency challenge resulted in the removal from a town or city council and Prause said he had looked hard but hadn’t found one, and the attorneys representing Summerfield appeared to concur. Bray commented before her decision on how little guidance there was in terms of legal precedent. It was clear that some statutes and legal principals being cited by the attorney’s were obscure. At one point, Prause said, “I had to look it up,” and Bray acknowledged she wasn’t familiar with the legal principle either. At another point, Wilson shot out a long Latin phrase while he looked apologetically at the court reporter who’d clearly never heard the term before. The court reporter threw her arms in the air as if to say, “What is that?”
Bray decided that the proper course of action was not through this suit against Summerfield but instead through the appeal of the Elections Board’s decision.
There were about a dozen interested audience members in courtroom 3-H of the Guilford County Courthouse in downtown Greensboro, including Whitaker, Robinson and Summerfield Mayor Gail Dunham, who was elected in November and who’s been a political ally of Rotruck.
Dunham said that, though Wilson told the judge at the hearing that the town was keeping the council informed about the Rotruck issue, that was absolutely not the case. Dunham said after the decision that she had asked for information from Whitaker and Hill that they would not provide her.
She also said Whitaker often wouldn’t even respond to her emails.
“This is where Scott [Whitaker] has been since we were elected,” the Summerfield mayor said.
“We no longer have a democracy here,” she said of the town of about 11,000 north of Greensboro.
Dunham added that Hill is making $180 an hour and Wilson is making $400 an hour and they are racking up legal bills though the Town Council has never approved them to do so. She said that, for a town like Summerfield, a lot of money is being spent. Dunham also said the Town Council hasn’t discussed the budget that state law requires be adopted by the end of the month; nor has the council even met to approve hiring and paying Wilson, she said. She also said that if the town wanted to levy and collect taxes in the coming fiscal year, it has to meet and do so or risk missing the deadline to levy taxes.
The June 4 hearing was supposed to start at 2 p.m., but instead another case ran long and the Summerfield case didn’t begin until about 3:15 p.m. That meant that Summerfield ran up over $700 in legal bills just in attorney wait time.