On Thursday, May 24, Superior Court Judge Andy Cromer ordered, for a second time, a stay of the Guilford County Board of Elections’ Tuesday, April 17 decision that determined Summerfield Town Councilmember Todd Rotruck wasn’t a resident of that town – a decision that resulted in Rotruck being removed from the Summerfield Town Council.

Rotruck and his attorney, Marsh Prause with the Winston-Salem firm of Allman Spry Davis Leggett & Crumpler, seemed delighted when they exited courtroom 3-C in the Guilford County Courthouse in downtown Greensboro. That was because they, and some others who had sat through the hearing, assumed that, as a consequence of the judge’s ruling, Rotruck would be allowed to participate in Summerfield Town Council meetings until Rotruck’s appeal of the Board of Elections’ case was decided.

After the May 24 hearing, Rotruck said he was pleased with the judge’s decision and was eager to serve on the Town Council in the coming weeks as the town adopts a budget and conducts other business.

On Friday, May 25, the day after the hearing, the News & Record ran the front page headline, “Judge: Rotruck can serve on Summerfield council while waiting on appeal.” The first sentence of the article stated, “Todd Rotruck can participate in Summerfield Town Council meetings while a dispute over his residency – which could determine whether he can retain his council seat – works its way through court, a judge has ruled once again.”

However, when Summerfield Town Attorney Bill Hill was asked about the decision and the town’s stance on the council seat that Rotruck was elected to in November, Hill made it clear that the town’s view was the exact opposite of what many had taken from the May 24 hearing.

“We do not agree with the N&R article and I have notified the reporter of same,” Hill wrote in an email. “We are not a party to the BOE [Guilford County Board of Elections] case and the ruling does not impact us. His honor stated as much from the bench. Todd cannot sit at this time.”

After the Elections Board ruled in mid-April that Rotruck resided in Greensboro rather than Summerfield, and then the board changed his voter registration accordingly, Rotruck filed an appeal of the Board of Elections’ decision in Guilford County Superior Court, and he simultaneously filed a lawsuit against the Town of Summerfield claiming that Town Manager Scott Whitaker acted outside the scope of his authority when he excluded Rotruck from all Town Council affairs.

As part of that suit against Summerfield – which, again, is separate from the Board of Elections case – Rotruck requested injunctive relief from the court in the form of a temporary restraining order (TRO) that would allow him to serve on the council until his appeal of the Elections Board decision had been decided.

Due to the Guilford County Elections Board decision in April, Rotruck is still officially registered to vote in Greensboro, which is what made him ineligible for the Summerfield Town Council since state law requires a person live in Summerfield in order to serve on that council.

In the first hearing related to the suit against Summerfield, on Monday, May 7, Judge Cromer listened to the arguments on whether Rotruck should be allowed to serve on the council while his case is appealed. Three days after that hearing, Cromer advised the attorneys that he was making no ruling in the Rotruck v. Summerfield case but was instead exercising his “inherent authority” to rule in deciding that the Guilford County Board of Elections’ case would have “no present application” until his appeal is heard by a Superior Court judge.

Guilford County Attorney Mark Payne didn’t get a chance to be heard in that first, May 7, hearing – even though the judge’s decision reached over to the county’s case. Payne, as Guilford County’s attorney who also represents the Board of Elections, had several objections to the court’s ruling to stay the Board of Elections’ decision.

In a Monday, May 14 letter to Cromer, Payne laid out the same arguments he later made in the May 24 hearing.

One objection Payne presented was that Cromer had issued the stay in the Elections Board case even though the case before him on May 7 was a separate suit Rotruck had filed against the Town of Summerfield.

Though that hearing was held on the Summerfield case, the judge – for reasons that still aren’t clear – decided to extend into the county’s case and issue a stay on the Elections Board’s decision, rather than issue a TRO in the other case that involved the Board of Elections. At the May 24 hearing, Payne argued both that the move was unnecessary and that the judge didn’t have the authority to do it.

At the May 24 hearing, Cromer said that since the stay he had called for involved the Board of Elections case, he did agree that the Board of Elections should be represented and that is why, Cromer said, the new hearing was being held.

“Their position was they needed to be heard and I agree,” Cromer said of the county. “Everybody will help me make the right decision.”

At the May 24 hearing, Payne sat at the table with well known Greensboro attorney Marshall Hurley, who has been representing Janelle Robinson, the Summerfield resident who initially filed the residency challenge against Rotruck and got the whole controversy started. Prause represented Rotruck in both hearings.

Payne stated in his May 14 letter to the judge, “My client had no notice that such an order was even contemplated.”

Payne, of course, knew that Rotruck’s case against Summerfield was on the docket that day – and Payne even came and sat in the back row as an observer. However, the county attorney didn’t take part in that hearing and he was noticeably surprised days later when Cromer, after the May 7 hearing on the Summerfield lawsuit, issued a stay on the Board of Elections’ decision.

At the May 24 hearing, Payne did most of the talking. He argued that the judge’s “extraordinary relief” isn’t necessary since the Board of Elections stands ready to participate in a hearing at the judge’s convenience.

But Payne’s most serious concern – one that he stated both in his letter and in court – was that Cromer doesn’t have the legal authority to issue the stay. Payne said the state statutes governing elections law – NCGS 163-A – doesn’t give the court the legal power to take the action Cromer did in regard to a decision by the Board of Elections.

“The statute makes no provision and does not offer a provision for a stay of said decision,” Payne wrote in his letter to Cromer. “I do not believe the BOE [Board of Elections] could have stayed its own decision in the face of an appeal and, similarly, I do not believe the Superior Court has authority to issue a stay, but rather must let the appeal take its course.”

While all parties agree that North Carolina Superior Court is the right venue for appealing a voter challenge case, Payne contends that issuing a stay that reverses the Board of Elections’ decision isn’t one of the legal tools at the judge’s disposal.

Payne told the judge, “I think the only thing that is going to resolve this issue is final disposition of the appeal.”

Cromer had a lot of questions for Payne, some hypothetical, and at one point Payne said, “I’m not going to dance in that particular minefield – I’m dancing in enough of them as it is.”

At the hearing, there was quite a bit of discussion about the harm that might be done by allowing Rotruck to serve on the Summerfield Town Council if, in a matter of weeks or months, the court upheld the Board of Elections’ decision.

Payne argued that, if Rotruck is allowed to serve on the council, the town could find itself in a situation where decisions had been made with a sitting town councilmember who wasn’t a resident of the town casting votes on those matters. He said every action of the Town Council during that time could be called into question.

But Comer asked, “What if the Board of Elections was wrong?”

The judge said that, if the court ultimately finds the Board of Elections’ ruling wasn’t the correct one, and determines that the decision should be overturned, the opposite holds true: Decisions made by the Summerfield Town Council during a time when one member was wrongfully kept from participating could all be suspect.

Comer pointed out that, when there’s a dispute on Election Day as to whether someone has a right to vote, the voter is generally allowed to cast a provisional vote and that vote may or may not be counted depending on what decision is made later. He said all Town Council votes are publicly recorded and he theorized one remedy in this case might be to just retroactively retabulate the Town Council votes based on whether or not Rotruck was later determined to be a legitimate participant in the meetings.

“Everyone knows how he voted – you just go back and erase it,” Comer said, though it wasn’t clear if that was a suggestion or a thought experiment.

“I see some error in that position,” Payne said.

Cromer also pointed out that the Board of Elections’ decision had already achieved one purpose; it had kept Rotruck from voting in Summerfield. The judge said that was the issue that the Board of Elections decided.

“It basically said he can’t vote – and that’s it,” Cromer said of the unanimous decision made by the county Elections Board in April.

Hurley, who’s representing Robinson’s interests as the challenger, also made the point that all sides were ready to deal with the matter quickly and so a decision from the courthouse be something that could come quickly.

“We have no reason in the world to interpose delay,” Hurley said. “This should be a streamlined process.”

Like Payne, Hurley was polite in his contention that the judge did not have the authority to stay the Elections Board case.

“It’s never a comfortable position to say you don’t have the authority,” Hurley told Cromer.

“I never take it personally,” the judge responded.

In the end, Cromer said the group could talk about it all day but he’d heard enough. He said he was staying the Board of Elections’ decision. He added that he wasn’t “prejudging” Rotruck’s appeal of that decision by doing so, but instead was answering the question “What do you do in the interim?”

“I think the court has the inherent authority to do it,” Cromer said. “I might be wrong.”

He added that nothing in his decision was meant to suggest that the Guilford County Board of Elections had done anything wrong.

Rotruck’s May 24 court “victory” turned out to be a hollow one since his goal is to serve on the Summerfield Town Council until his case is heard, and the Town of Summerfield, in a public notice signed by Whitaker, states that the town still considers the council seat still vacant but doesn’t intend to fill the seat at the present time. One notice from the Town of Summerfield states, “Regarding the future appointment of a replacement Council member, the desire is to wait until the BOE appeal matter has been settled.”

It’s a good thing that the town’s desire is to wait since Judge Cromer, at the first May hearing, verbally ordered the town not to fill the seat until that appeal is decided.