- The North Carolina Court of Appeals split, 2-1, in rejecting a case from Gerald Cannon, who was appointed for one day in 2022 to serve as Anson County sheriff.
- The Appeals Court majority agreed that Cannon was "not lawfully appointed" to the position during a meeting that lacked adequate public notice and a quorum.
- A dissent noted that no one ever challenged the Dec. 5, 2022, Anson County commissioners meeting that led to Cannon's appointment.
The North Carolina Court of Appeals has rejected an appeal from Gerald Cannon, who was appointed Anson County sheriff for a single day in December 2022 before county commissioners reversed the decision.
In a 2-1 ruling Tuesday, appellate judges determined that Cannon was “not lawfully appointed” to the position in a special December 2022 meeting.
In September 2022, Anson Sheriff Landric Reid died while in office. Reid was running for re-election, and his death occurred too late in the election cycle for election officials to change names on the election ballot, according to the Appeals Court decision. County commissioners appointed chief deputy Scott Howell to serve the rest of Reid’s term.
Voters re-elected Reid, the Democratic candidate. His victory created a vacancy in the sheriff’s office.
Anson County commissioners discussed the sheriff’s vacancy during closed session at a Dec. 1, 2022, meeting but took no action. During open session, a commissioner announced that the board would resolve the issue on Dec. 6.
On Dec. 3, the Anson Democratic Party selected Cannon to serve as Reid’s successor. “The Democratic Party was operating under the belief that, pursuant to N.C. Gen. Stat. § 162-5.1 (b) (2021), the Board was required to appoint the person recommended by the Democratic Party, as Sheriff Reid had been elected as the Democratic nominee. This section of the statute, however, applies only to select counties, of which Anson County is not included,” wrote Appeals Court Judge Julee Flood.
On Dec. 5, county commissioners called a special meeting to take place the same day. Two commissioners attended the meeting in person. Three took part by conference call. Two were absent. Four of seven Anson commissioners voted to appoint Cannon as sheriff.
Later that evening, the county attorney contacted Cannon and Howell. “[H]e interpreted the 5 December meeting as an illegal meeting because there was no ‘emergency,’ and Plaintiff’s appointment was therefore invalid,” Flood wrote.
Cannon sought an injunction in court the following day, but a judge ruled against him. Commissioners voted 4-3 later on Dec. 6 to appoint Howell to serve as sheriff through the rest of the elected term.
In a new complaint, Cannon “alleged that the Board did not have the authority to appoint Defendant Howell to the office of Anson County Sheriff because no vacancy existed after the 5 December meeting.”
In May 2023, a trial judge ruled in favor of Anson County.
“We conclude that the trial court did not err in granting judgment on the pleadings in favor of Defendants, as the face of Plaintiff’s quo warranto complaint shows he was appointed at an unlawful meeting where there was neither a true ‘emergency’ nor a quorum,” Flood wrote.
Flood cited the absence of adequate public notice for the Dec. 5 meeting, along with the absence of a quorum of members at the meeting site. “Plaintiff’s appointment, therefore, passed with only two out of seven votes present — which is not a quorum. Without a quorum, Plaintiff was not lawfully appointed to the position of Anson County Sheriff, and the Board therefore had a vacancy in which to appoint Defendant Howell to fill,” the majority opinion argued.
Judge Jefferson Griffin joined Flood’s opinion. Judge Carolyn Thompson dissented.
“The dispositive question presented by this case is not who holds the title of Anson County Sheriff, but whether the Anson County Board of Commissioners violated the North Carolina Open Meetings Law by appointing and swearing in plaintiff Cannon as the Anson County Sheriff absent an emergency and, therefore, a quorum on 5 December 2022,” Thompson wrote.
The dissent focused on the absence of any legal complaint about the Dec. 5 meeting.
“[T]he deficiency in the majority’s analysis lies in the fact — established by our legislature — that once an individual has been sworn into public office by the proper authority, they are presumed to be in that office lawfully,” Thompson wrote. “To declare that the action of a public body, the Anson County Board of Commissioners’ appointment of plaintiff Cannon as Anson County Sheriff on 5 December 2022, was taken, considered, discussed, or deliberated in violation of the Open Meetings Law, somebody needed to allege so by seeking relief through the appropriate proceedings.”
“Because there has been no challenge to the presumably lawful actions of ‘the proper authority’ to fill the vacancy, the Anson County Board of Commissioners, ‘upon a proper proceeding,’ the statutory remedies set forth in N.C. Gen. Stat. §§ 143-318.16 or 143-318.16A for alleged violations of the Open Meetings Law, I would conclude that the trial court erred in granting defendants’ motion on the pleadings,” Thompson added.
“Because no challenge was brought to the presumably lawful actions of a public body, the Anson County Board of Commissioners, through the proper proceedings — an injunction, or a suit seeking declaratory relief brought within forty-five days following the initial disclosure of the actions the suit seeks to have declared null and void — plaintiff Cannon is the Anson County Sheriff,” Thompson concluded. “He became the Anson County Sheriff upon his appointment and swearing in by the proper authority, the Anson County Board of Commissioners, on 5 December 2022; he maintains that title absent a challenge thereto.”