This fall, the Court of Appeals is considering Gov. Josh Stein’s challenge to SB 382, which transferred control over appointments to the NC Board of Elections from the governor to the state auditor. This landmark case may alter the balance of power in North Carolina government for decades to come. While most of the debate has focused on the merits of the case, attend should also be paid to the remedies that Stein has requested if he prevails.
Specifically, we should focus on two questions that have received relatively little attention: First, do North Carolina courts have the power to enjoin “the appointment and removal of public officers”? And second, can Stein obtain an equitable remedy such as an injunction if he already has an adequate remedy at law in this case through North Carolina’s quo warranto statute?
What is equity?
Equity, in this context, does not refer to DEI or distributive justice under civil rights law. In law, it refers to a system that developed in England as a more flexible alternative to the strict common law courts. Most of the remedies (including injunctions) that were offered by the English Court of Chancery (England’s main court of equity) came to be known as “equitable remedies,” while the remedies that were offered by the common law courts came to be known as “remedies at law.” Equitable remedies could help a plaintiff obtain broad relief if he complied with certain rules, such as demonstrating that the common law courts were unable to remedy his injury.
Many of these rules were carried over into American law at the Founding and continue to decide the outcomes of cases today. For example, in Trump v. CASA, the US Supreme Court held earlier this year that federal courts cannot issue national injunctions because this power fell outside the historical powers of the English Court of Chancery. (In this article, I assume for the sake of argument that North Carolina state courts’ equitable powers are tied to English Chancery practice in the same way as federal courts.)
Question 1: The removal of public officers
At this stage in the litigation, the effect of granting an injunction against SB 382 (as Stein requests) would be to remove the current members of the Board of Elections and install the governor’s preferred appointees on the basis that State Auditor Boliek’s appointments earlier this year violated the state constitution. Thus, issuing the relief that Stein has requested would enjoin “the appointment and removal of public officers,” which fell outside traditional equity practice.
While Professor Samuel Bray has noted that traditional limitations on equitable remedies “give way if there is an express authorization of equity’s involvement by the legislature,” the law which the governor invoked before the Superior Court to justify a permanent injunction — NC Rule of Civil Procedure 65 — does not mention the power to enjoin the appointment and removal of public officers, let alone expressly grant it to state courts.
If North Carolina courts are bound by traditional equity practice, and if “it is well-settled” under that practice “that a court of equity has no jurisdiction over the appointment and removal of public officers,” then it would seem that North Carolina courts cannot grant the injunction that Stein desires (Sawyer, 124 U.S. at 212).
Question 2: The quo warranto problem
Plaintiffs cannot seek an equitable remedy if they have “a full, complete, and adequate remedy at law. . .” Whitford v. North Carolina Joint Stock Land Bank, 207 N.C. 229, 233 (1934). Nevertheless, Stein’s lawsuit asks for an equitable remedy even though North Carolina law apparently already provides a remedy at law for when public officials are alleged to hold an office unlawfully. While the writ of quo warranto was previously used to try titles to public office, the General Assembly later replaced that remedy at law with a complex statute that authorizes the attorney general (or another party that he designates) to file a claim against the person alleged to hold an office in violation of the law.
The North Carolina Supreme Court has recognized that this statute — now codified in its modern form at § 1‑514–532 — is the successor to quo warranto, which was “the only appropriate and efficacious remedy” for disputes over a public office. Saunders v. Gatling, 81 N.C. 298, 300 (1879) (emphasis added). While prevailing under this statute would accomplish the same objective as Stein’s challenge (the removal of State Auditor Boliek’s appointees and the installation of the governor’s preferred members), it also includes many other requirements — including obtaining the consent of the attorney general — that are circumvented by asking directly for an equitable remedy. Since this statute appears to remain in effect, it would seem that Stein cannot pursue an injunction when he has an adequate remedy at law.
A note on declaratory judgments
Importantly, these points do not necessarily apply to Stein’s separate request for a declaratory judgment against SB 382. As Professor Bray pointed out in March, “the declaratory judgment is not an equitable remedy,” and under North Carolina law, a declaratory judgment may be subject to different standards than equitable remedies (see, e.g., NC Rule of Civil Procedure 57, “The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.”). So even if North Carolina courts cannot grant Stein’s request for an injunction against SB 382, it may still be lawful for them to issue a declaratory judgment if certain statutory criteria are met
Conclusion
Even if the Court of Appeals finds that Stein is correct on the merits of his challenge, this does not necessarily mean that it is able to grant the remedy that he has requested or that Stein has brought his case under the appropriate statute. Equity can help litigants obtain broad relief, but in exchange, it requires them to follow certain longstanding principles.
I do not know for certain that granting Stein’s requested relief would violate these principles. A great deal has happened in the North Carolina law of remedies over the past century, and further research on this point may be required. But based on the evidence discussed so far, it is very difficult to square Stein’s request with equity’s traditional rules.