An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1295
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
Durham County
No. 13 CVS 3898
A. LEON STANBACK
Appeal by affiant from orders entered 14 August 2013 and 23
August 2013 by Judge Orlando F. Hudson, Jr. in Durham County
Superior Court. Heard in the Court of Appeals 22 April 2014.
James Michael Lynch, pro se, for affiant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for appellee.
HUNTER, Robert C., Judge.
Appellant-affiant James Michael Lynch (“appellant-affiant”)
appeals the trial court’s orders dismissing the N.C. Gen. Stat.
§ 7A-66 proceeding against District Attorney A. Leon Stanback
(“DA Stanback”) and denying appellant-affiant’s Rule 60(b)
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motion. After careful review, we dismiss appellant-affiant’s
appeal.
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Background
On 5 August 2013, appellant-affiant filed an affidavit
pursuant to section 7A-66 charging the following grounds for DA
Stanback’s removal: (1) willful misconduct in office, and (2)
willful and persistent failure to perform his duties. In short,
appellant-affiant claimed that the Sheriff of Durham County,
Michael Andrews, along with others in that department,
intentionally covered up a crime in which appellant-affiant was
a victim, lied to him, and destroyed evidence. DA Stanback
refused to initiate an investigation by the SBI into the alleged
crimes. Thus, appellant-affiant accused DA Stanback of
conspiring with the officers to cover up their crimes.
The matter came on for hearing before Judge Hudson on 5
August 2013. Judge Hudson issued an order on 14 August 2013
dismissing the proceeding based on his finding that no probable
cause existed to believe that the charges alleged against DA
Stanback were true. On 22 August 2013, appellant-affiant filed
a Rule 60(b) motion, claiming that Judge Hudson’s refusal to
recuse himself entitled him to relief from the order dismissing
the removal proceeding. Judge Hudson denied the Rule 60(b)
motion on 23 August 2013. Appellant-affiant appealed both
orders.
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Analysis
A proceeding to remove a district attorney “is neither a
civil suit nor a criminal prosecution[;]” it is “an inquiry.”
In re Spivey, 345 N.C. 404, 418, 480 S.E.2d 693, 701 (1997).
Accordingly, “the rules of civil and criminal procedure do not
apply.” In re Hudson, 165 N.C. App. 894, 896, 600 S.E.2d 25, 27
(2004). Upon the filing of an N.C. Gen. Stat. § 7A-66 affidavit
seeking removal of a district attorney, the superior court is
required to perform a two-prong analysis: (1) the superior court
must determine whether “the charges if true constitute grounds
for suspension” of the district attorney; and (2) the superior
court must also find “probable cause for believing that the
charges are true.” N.C. Gen. Stat. § 7A-66 (2013). If the
court finds both of these things exist, it must hold a hearing
and “may enter an order suspending the district attorney from
performing the duties of his office until a final determination
of the charges on the merits.” Id. However, “[i]f the superior
court judge finds that the charges if true do not constitute
grounds for suspension or finds that no probable cause exists
for believing that the charges are true, he shall dismiss the
proceeding.” Id.
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Here, appellant-affiant is appealing Judge Hudson’s order
dismissing the removal proceeding initiated based on appellant-
affiant’s N.C. Gen. Stat. § 7A-66 affidavit. However, whether
appellant-affiant has a right to appeal this order is controlled
by this Court’s decision in In re Hudson. In In re Hudson, 165
N.C. App. at 895, 600 S.E.2d at 26, an affiant had filed a
similar affidavit pursuant to N.C. Gen. Stat. § 7A-66, charging
that grounds existed to remove District Attorney G. Dewey
Hudson. After noting that “[i]n proceedings under N.C. Gen.
Stat. § 7A-66, the affiant is not a party, but rather is merely
a citizen presenting possible grounds for removal to the
court[,]” the Court looked at other similar proceedings, such as
dismissed complaints against judges before the Judicial
Standards Commission and decisions by the chief district court
judge to not conduct a hearing on the removal of a magistrate,
to determine whether the affiant had a right to appeal the trial
court’s dismissal of the removal proceedings. Id. at 897-98,
600 S.E.2d at 28. The Court concluded that, based on the
legislature’s refusal to include a right of appeal for the
affiant even though it specifically provided a right of appeal
for removed district attorneys, an affiant has no right to
appeal an order dismissing an affidavit charging a district
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attorney with one or more grounds for removal under section 7A-
66 and dismissed his appeal. Id. at 898, 600 S.E.2d at 28.
Here, appellant-affiant is appealing the order dismissing
the removal proceeding against DA Stanback. Based on In re
Hudson, appellant-affiant is not a party in the removal
proceedings and has no right to appeal Judge Hudson’s order.
Moreover, since he was not a party, he had no right to file a
Rule 60(b) motion to remove Judge Hudson from the probable cause
determination; thus, he has no right to appeal that order
either. Consequently, we dismiss appellant-affiant’s appeal.
Conclusion
Based on the foregoing reasons, we dismiss appellant-
affiant’s appeal.
DISMISSED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).