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North Carolina v. Tucker12/4/1984
be entered in the action which would completely and finally determine the controversy, without that person's presence as a party. Construction Company v. Board of Education, 278 N.C. 633, 180 S.E.2d 818 (1971). Again, it is neither alleged by the complaint, nor claimed by the judicial defendants, that they have any vital or material interest at stake in the constitutionality of the Safe Roads Act.
This principle, that a judge of a trial court has no interest sufficient to create an actual or real existing controversy in a ruling of law made by him when such ruling is made the subject of a declaratory judgment action in a superior court, was implicitly recognized by this Court in Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E.2d 774 (1954). In Rowland, the district court judge directed the court clerk not to tax certain fees in criminal actions in cases brought before him. The Town of Fuquay Springs, claiming a financial interest in the fees to be collected, instituted a civil proceeding under the Declaratory Judgment Act against, inter alia, the judge, seeking a declaration as to the items of cost which are properly assessable in a criminal case. The superior court denied the judge's demurrer and directed the clerk to follow a schedule of fees. This Court dismissed the action as to the judicial defendant, stating that "A judge of a court of this State is not subject to civil action for errors committed in the discharge of
his official duties." As to the propriety of the form of action chosen, the Court stated:
While we concede that the Declaratory Judgment Act . . . is comprehensive in scope and purpose, it does not and was not intended to embrace such an action as this. We cannot perceive that the legislature, in enacting that statute, intended to vest in Superior Court judges the general power to oversee, direct, or instruct officials of inferior courts in the discharge of their official duties.
Fuquay Springs v. Rowland, 239 N.C. at 301, 79 S.E.2d at 776.
The State contends that the judicial defendants do have an interest adverse to that of the State with respect to their personal rights, status or other legal relations in that they should fear that the State may seek a writ of mandamus or prohibition against them should they continue to construe the Safe Roads Act "contrary to the legislative intent" in the future. Citing language from the recent United States Supreme Court case of Pulliam v. Allen, U.S. , 80 L. Ed. 2d 565 (1984), the State asserts that a judge named in a petition for writ of mandamus himself becomes a party to the action. See also In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979).
First, the State assumes that a writ of mandamus could properly be obtained to direct a judicial officer acting in his judicial capacity, to rule a statute constitutional. For the reasons set forth in Part III of this opinion, we disagree. Second, even assuming arguendo that mandamus could properly issue under these circumstances, the State's argument lacks merit.
While it may be true that a trial court judge would have an interest in whether or not a writ is filed against him, that interest is not the kind of "adverse interest" and "stake in the outcome" that is a jurisdictional prerequisite to relief under the Declaratory Judgment Act. Again, "adverse interest" under that Act is an actual interest by the parties in the ultimate resolution of the facts and contentions of law concerning which a declaratory judgment is sought, and not the interest a judge might
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