An unpublished opinion of the North Carolina Court of Appeals does not constitute 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:

A. LEON STANBACK

Durham County

No. 13 CVS 3898

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 appellantaffiant’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 7A66 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 appellantaffiant’s appeal.

DISMISSED.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).