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  "name": "JOHN MALLOY, D/B/A THE DOGWOOD GUN CLUB, Plaintiff v. ROY A. COOPER, III, ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA; SAM CURRIN, DISTRICT ATTORNEY FOR THE 9th PROSECUTORIAL DISTRICT; DAVID S. SMITH, SHERIFF OF GRANVILLE COUNTY; STATE OF NORTH CAROLINA, Defendants",
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    "judges": [
      "Judges BRYANT and GEER concur."
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    "parties": [
      "JOHN MALLOY, D/B/A THE DOGWOOD GUN CLUB, Plaintiff v. ROY A. COOPER, III, ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA; SAM CURRIN, DISTRICT ATTORNEY FOR THE 9th PROSECUTORIAL DISTRICT; DAVID S. SMITH, SHERIFF OF GRANVILLE COUNTY; STATE OF NORTH CAROLINA, Defendants"
    ],
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      {
        "text": "McGEE, Judge.\nPlaintiff is a resident of Granville County, North Carolina, and owns an unincorporated business operating under the name \u201cDogwood Gun Club.\u201d Plaintiff sponsors a biannual pigeon shoot, known as \u201cThe Dogwood Invitational,\u201d on his private land in Granville County. Plaintiff has sponsored, organized, and operated these pigeon shoots since 1987. Contestants participate by invitation only, and each contestant pays $275.00 per day to participate. According to Plaintiff\u2019s response to interrogatories, the pigeon shoot is conducted as follows: \u201cEach contestant faces a ring. Inside the ring are a number of boxes which are opened on cue. An individual ferel [sic] pigeon flies from a particular box. The feral pigeon serves as a target at which the contestant shoots.\u201d The last two pigeon shoots Plaintiff conducted before this action was filed utilized approximately 40,000 pigeons each..Pigeons that are killed by the contestants are buried, whereas pigeons that are merely injured are \u201cdispatched promptly\u201d and then buried. Plaintiff alleges he spent $500,000.00 in capital improvements to his land to further the pigeon shoots and also claims that the pigeon shoots provide approximately fifty percent of his net income. See Malloy v. Cooper, 356 N.C. 113, 114, 565 S.E.2d 76, 77 (2002).\nPlaintiff filed a declaratory judgment action in 1999, seeking a determination that N.C. Gen. Stat. \u00a7 14-360, an animal cruelty statute, was unconstitutional and could not be used to prosecute Plaintiff for operating pigeon shoots. For a complete procedural history of this case, and additional facts, see Malloy v. Cooper, 146 N.C. App. 66, 551 S.E.2d 911 (2001) (Malloy I), reversed and remanded by our Supreme Court to this Court by Malloy, 356 N.C. 113, 565 S.E.2d 76 (Malloy II), and ultimately decided by Malloy v. Cooper, 162 N.C. App. 504, 592 S.E.2d 17 (2004) (Malloy III).\nThis Court held in Malloy III that N.C. Gen. Stat. \u00a7 14-360, as it was then written, was unconstitutionally vague as it applied to Plaintiffs pigeon shoots. Our Court remanded the case to the trial court for entry of a permanent injunction against prosecuting Plaintiff pursuant to the provisions of N.C. Gen. Stat. \u00a7 14-360. Malloy III, 162 N.C. App. at 510, 592 S.E.2d at 22 (citations omitted). This holding was based upon the definition of \u201cdomestic pigeon\u201d as it applied to N.C. Gen. Stat. \u00a7 14-360 through N.C. Gen. Stat. \u00a7 113-129(15a) and 15A N.C.A.C. 10B.0121. The trial court entered a permanent injunction against prosecution of Plaintiff under N.C. Gen. Stat. \u00a7 14-360 on 9 December 2004.\nThe Humane Society of the United States' (HSUS) filed amicus curiae briefs in support of Defendants\u2019 position in Malloy I and Malloy II. HSUS\u2019 amicus curiae brief from Malloy I was therefore properly before this Court for consideration upon remand in Malloy III. None of the Movants, however, have been parties to this action.\nIn an attempt to correct the constitutional defects of N.C. Gen. Stat. \u00a7 14-360 set out in our holding in Malloy III, the Wildlife Resource Commission (WRC) amended its definition of \u201cpigeon\u201d in its exclusionary provision for wild birds, 15A N.C.A.C. 10B.0121, as defined in N.C. Gen. Stat. \u00a7 113-129(15a) (the amendment). The amendment became effective 1 October 2004. Through the amendment, the WRC changed the relevant wording of 15A N.C.A.C. 10B.0121 from \u201cdomestic pigeon\u201d to simply \u201cpigeon.\u201d This change was intended to removed the ambiguity inherent in N.C. Gen. Stat. \u00a7 14-360 by clearly indicating that all pigeons, not just \u201cdomestic pigeons\u201d are protected by the provisions of th\u00e1t statute.\nFollowing the amendment, the Granville County District Attorney Sam Currin (Currin), wrote a letter to the North Carolina Attorney General\u2019s Office requesting legal guidance on what impact the amendment had on the injunction in this case. Special Deputy Attorney General John J. Aldridge, III (Aldridge) responded on 3 November 2006 with an advisory letter. Aldridge indicated that in his opinion the amendment had cured the constitutional defect recognized by this Court in Malloy III. Aldridge advised that he had been unable to find any case law answering the question of whether the amendment automatically dissolved the injunction against prosecution of Plaintiff pursuant to N.C. Gen. Stat. \u00a7 14-360. He further advised that in his opinion the best course of action would be for either the Granville County District Attorney or Sheriff to move for dissolution of the injunction before attempting prosecution of Plaintiff pursuant to N.C. Gen. Stat. \u00a7 14-360. HSUS made attempts to persuade Currin to move for the dissolution of the injunction. In a letter to Heidi Prescott of the HSUS dated 6 March 2007, Currin stated: \u201cAt the present time, the Attorney General\u2019s Office and any private law firm has the same standing that' I do to bring this action. Please, concentrate your efforts with one of them.\u201d\nIn response to Currin\u2019s letter, counsel for HSUS wrote Aldridge on 19 March 2007 requesting that the Attorney General\u2019s Office move to modify or dissolve the injunction. After several more attempts to persuade any Defendants in this matter to move for dissolution of the injunction, Movants sent a letter dated 24 September 2007 to Plaintiff and Defendants indicating their intention to move for intervention in the matter. Movants filed their motion to intervene with this Court on 10 October 2007. The motion was denied on 4 December 2007, without prejudice to file in superior court. Movants filed a motion to intervene in superior court on 11 March 2008. In an order entered 21 April 2008, the trial court denied Movants\u2019 motion on the basis that the motion was not filed in a timely manner, and that granting the motion \u201cwould be unfair and prejudicial to Plaintiff.\u201d Movants appeal.\nIn Movants\u2019 first and third arguments, they contend the trial court erred in finding there was no justification for Movants\u2019 delay in filing their motion to intervene, and that it was therefore not filed in a timely manner. We disagree.\nPursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 24[] (2003), anyone can intervene if the individual timely files a petition[.]\nThe determination of the timeliness of the motion under this rule is left to the sound discretion of the trial court. Such rulings are given great deference and will only be overturned upon a showing that the ruling \u201c \u2018was so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d\nWhen considering the issue of timeliness, North Carolina Courts consider five factors: \u201c(1) the status of the case, (2) the possibility of unfairness or prejudice to the existing parties, (3) the reason for the delay in moving for intervention, (4) the resulting prejudice to the applicant if the motion is denied, and (5) any unusual circumstances.\u201d\nHome Builders Ass\u2019n of Fayetteville N.C., Inc. v. City of Fayetteville, 170 N.C. App. 625, 630-31, 613 S.E.2d 521, 525 (2005) (emphasis added) (citations omitted).\nMovants claim that due to the amendment of 15A N.C.A.C. 10B.0121 by the WRC effective 1 October 2004, the injunction preventing prosecution of Plaintiff pursuant to N.C. Gen. -Stat. \u00a7 14-360 ordered by this Court in Malloy III should be dissolved. However, Movants did not file their motion to intervene with this Court until 10 October 2007, which was denied on 4 December 2007. Movants then filed a motion to intervene in Superior Court, Granville County on 11 March 2008. The trial court denied Movants\u2019 motion to intervene on the basis that it was not \u201ctimely\u201d as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 24.\nMovants failed to file their motion in this Court until more than three years after the WRC amended the definition of \u201cpigeon\u201d in 15A N.C.A.C. 10B.0121. Moreover, Movants failed to file their motion to intervene in Superior Court, Granville County until nearly three and a half years after the amendment.\nWhile HSUS was involved in the original appeal of this case through the filing of an amicus curiae brief, and though HSUS clearly made attempts to persuade Defendants to pursue the matter, we cannot find that the trial court\u2019s ruling that Movants\u2019 motion to intervene was not timely filed \u201cwas so arbitrary that it could not have been the result of a reasoned decision.\u201d Home Builders Ass\u2019n, 170 N.C. App. at 631, 613 S.E.2d at 525. We reach this holding in light of the more than three year period between the amendment and the filing of Movants\u2019 motion to intervene with this Court, and the period of more than three months between this Court\u2019s denial of the motion and Movants\u2019 filing of a motion to intervene in Superior Court, Granville County. See State ex rel. Easley v. Philip Morris, Inc., 144 N.C. App. 329, 548 S.E.2d 781 (2001); Loman Garrett, Inc. v. Timco Mechanical, Inc., 93 N.C. App. 500, 378 S.E.2d 194 (1989); State Employees\u2019 Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 330 S.E.2d 645 (1985).\nFurther, Movants did nothing between the time of the amendment, effective 1 October 2004, and the Fall of 2006, when HSUS began pressuring Defendants to move to dissolve the injunction. Movants argue they were unaware an injunction had been entered on 9 December 2004. We do not find Movants\u2019 argument persuasive. Movants were clearly aware that this Court had ordered the trial court to enter the injunction. Movants could have easily determined when the injunction was entered. In light of Movants\u2019 professed interest and their attempt to intervene in this matter, we find no sufficient justification for their failure to ascertain when or if this Court\u2019s order had been carried out. We hold that the length of the delay, combined with the lack of justification for that delay, are sufficient grounds to affirm the trial court\u2019s denial of Movants\u2019 motion to intervene. These arguments are without merit.\nBecause we have determined the trial court did not abuse its discretion in denying Movants\u2019 motion to intervene based upon untimeliness, we do not address Movants\u2019 additional argument.\nThis holding may in no manner be construed as a decision on Movants\u2019 underling position that the amendment should result in the dissolution of the injunction prohibiting prosecution of Plaintiff for violations of N.C. Gen. Stat. \u00a7 14-360. In Malloy III, this Court held that the definition of \u201cdomestic pigeon\u201d in 15A N.C.A.C. 10B.0121, as it then existed, rendered N.C. Gen. Stat. \u00a7 14-360 unconstitutionally vague as it applied to that case.\nThe statute and regulation as written fail to give a person a reasonable opportunity to know whether shooting particular pigeons is prohibited, and fails to provide standards for those applying the law, .as required by the North Carolina Supreme Court and United States Supreme Court. \u201cVoid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.\u201d Therefore, we hold that G.S. \u00a7 14-360, in its entirety, is unconstitutionally void for vagueness, as applied to plaintiffs contemplated pigeon shoot.\nMalloy III, 162 N.C. App. at 510, 592 S.E.2d at 22 (citations omitted). We recognize that as long as the injunction remains in place, Plaintiff is immune from prosecution for acts that could potentially lead to the prosecution of other North Carolina citizens if the same acts were committed by them. However, because the impact of the amendment of 15A N.C.A.C. 10B.0121 on our holding in Malloy III has not been addressed by our courts, it remains an unsettled issue.\nAffirmed.\nJudges BRYANT and GEER concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Tharrington Smith, L.L.P.,. by F. Hill Allen, for Plaintiff - Appellee.",
      "Everett, Gaskins, Hancock & Stevens, LLP, by E.D. Gaskins, Jr. and James Hash, for Movants-Appellants."
    ],
    "corrections": "",
    "head_matter": "JOHN MALLOY, D/B/A THE DOGWOOD GUN CLUB, Plaintiff v. ROY A. COOPER, III, ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA; SAM CURRIN, DISTRICT ATTORNEY FOR THE 9th PROSECUTORIAL DISTRICT; DAVID S. SMITH, SHERIFF OF GRANVILLE COUNTY; STATE OF NORTH CAROLINA, Defendants\nNo. COA08-892\n(Filed 17 March 2009)\nInjunction\u2014 pigeon shoot\u2014enforcement of animal cruelty statute enjoined\u2014subsequent amendment of regulation\u2014motion to intervene denied\nThe trial court did not abuse its discretion by denying a motion to intervene based on timeliness in a case involving a permanent injunction against enforcement of an animal cruelty statute and a subsequent clarification of the underlying regulation. The length of the delay and the lack of justification for the delay were sufficient grounds to affirm the denial of the motion to intervene; whether the regulation amendment should result in the dissolution of the injunction remains unsettled.\nAppeal by Movants (the Humane Society of the United States, Robert Reder, Laureen Bartfield, and Cynthia Bailey) from order denying Movants\u2019 motion to intervene entered 21 April 2008 by Judge Kenneth C. Titus in Superior Court, Granville County. Heard in the Court of Appeals 10 December 2008.\nTharrington Smith, L.L.P.,. by F. Hill Allen, for Plaintiff - Appellee.\nEverett, Gaskins, Hancock & Stevens, LLP, by E.D. Gaskins, Jr. and James Hash, for Movants-Appellants."
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