Opinion
No. COA15–749.
01-19-2016
Robert A. MUSSEN, Plaintiff, v. The STATE of North Carolina, and The District Attorney for the County of Wake, Ned Mangum, in his official capacity, Defendants.
Campbell Shatley, PLLC, by Robert F. Orr, for plaintiff-appellee. Attorney General Roy Cooper, by Special Deputy Attorney General David J. Adinolfi II, for defendant-appellants.
Campbell Shatley, PLLC, by Robert F. Orr, for plaintiff-appellee.
Attorney General Roy Cooper, by Special Deputy Attorney General David J. Adinolfi II, for defendant-appellants.
Opinion
Appeal by defendants from order entered 9 January 2015 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 3 December 2015.
DIETZ, Judge.
Plaintiff Robert Mussen brought this declaratory judgment action against the State of North Carolina and the Wake County District Attorney seeking a judicial determination that, in essence, a competitive, tournament version of Texas Hold'em poker is not a form of illegal gambling under state law because of the level of skill involved in the game.
Defendants moved to dismiss under Rule 12(b)(1) and 12(b)(6) of the Rules of Civil Procedure on the grounds that there was no actual controversy between Mussen and Defendants, as required to pursue a declaratory judgment action, and that the legality of Texas Hold'em poker already had been litigated and resolved in Defendants' favor in previous cases. The trial court denied Defendants' motion to dismiss.
Ordinarily, the denial of a motion to dismiss on the grounds raised by Defendants is not immediately appealable. Berger v. Berger, 67 N.C.App. 591, 595, 313 S.E.2d 825, 828 (1984). But Defendants argued that the uncertainty created by this lawsuit has a “chilling effect” on the willingness of law enforcement and prosecutors to pursue criminal charges against Plaintiff or others who operate Texas Hold'em poker tournaments. They thus contend that the trial court's order affects a substantial right and is immediately appealable. We disagree.
First, as Defendants conceded at oral argument, Plaintiff has not obtained any preliminary injunctive relief. Thus, there is no risk that law enforcement officers or prosecutors might inadvertently violate a court injunction by pursuing charges against Plaintiff or others while this civil case proceeds at the trial level.
Second, as Defendants conceded at oral argument, law enforcement officers and prosecutors who lawfully pursue charges against operators of Texas Hold'em poker tournaments are protected from personal liability by applicable legal immunities. Thus, they need not fear personal exposure when pursuing lawful, good faith investigations or prosecutions against poker tournament operators. And, to the extent those law enforcement officers or prosecutors might face their own civil lawsuits seeking declaratory relief, as in this case, they still face no threat of personal liability, and they will by represented, as here, by the Attorney General's office and its vast legal resources.
Simply put, Defendants have not shown that the trial court's denial of their motion to dismiss in this declaratory judgment action will interfere in any way with the ability of our State's law enforcement officers and prosecutors to carry out their sworn duties, including their obligation to investigate and prosecute those engaged in illegal gambling activities. Because Defendants have not shown that the challenged order affects a substantial right, we lack appellate jurisdiction to hear the case. Accordingly, we allow Plaintiff's motion to dismiss this appeal.
DISMISSED.
Judges STROUD and TYSON concur.
Report per Rule 30(e).