Beaufort County v. Beaufort County

• Decision Date: 19 June 2007
• Docket Number: No. COA06-1419.,COA06-1419.
• Citation: 645 S.E.2d 857
• Court: North Carolina Court of Appeals
• Parties: BEAUFORT COUNTY BOARD OF EDUCATION, Plaintiff, v. BEAUFORT COUNTY BOARD OF COMMISSIONERS, Defendant.

645 S.E.2d 857

BEAUFORT COUNTY BOARD OF EDUCATION, Plaintiff, v. BEAUFORT COUNTY BOARD OF COMMISSIONERS, Defendant.

No. COA06-1419.

Court of Appeals of North Carolina.

June 19, 2007.

Appeal by movant Media General Operations, Inc. from oral order rendered 19 July 2006 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 23 May 2007.

Schwartz & Shaw, P.L.L.C., by Richard A. Schwartz, Brian C. Shaw, and Rachel B. Hitch, Raleigh, for plaintiff-appellee.

No brief filed for defendant-appellee.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mark J. Prak, Charles E. Coble, and Elizabeth E. Spainhour, The Bussian Law Firm, PLLC, by John A. Bussian, Raleigh, for movant-appellant.

TYSON, Judge.

Media General Operations, Inc. ("Media General") appeals from an oral order prohibiting the parties and their attorneys from communicating with the media ("the gag order") during civil litigation between the Beaufort County Board of Education ("the School Board") and the Beaufort County Board of Commissioners ("the Commissioners"). We vacate the gag order.

I. Background

Media General operates WNCT-TV, a television station engaged in gathering and broadcasting news. WNCT-TV is located in Greenville and its broadcast coverage area includes Beaufort County.

On 14 July 2006, the School Board filed a complaint in the Beaufort County Superior Court against the Commissioners. The complaint alleges the Commissioners deliberately underfunded the public school system in the Beaufort County budget ordinance for the fiscal year 2006-2007, and the revenues it appropriated to the school system were "based on the personal demands of various ... Commissioners and in retaliation against the [School Board] for its refusal to capitulate to funding threats made by various individual ... Commissioners and combinations of Commissioners acting in concert." The School Board demanded the trial court order the Commissioners to appropriate the amount of money needed to maintain the public school system from financial resources under the Commissioners control.

WNCT-TV sought to gather information and report news to the public regarding the funding dispute between the School Board and the Commissioners. Prior to trial, on 19 July 2006, the trial court orally rendered the gag order ex mero motu, which forbade the parties and their attorneys from communicating with members of the news media regarding the litigation. The following day, on 20 July 2006, Media General moved for the trial court to determine its right of access to the courtroom proceedings, the parties, and their attorneys and sought dissolution of the gag order.

On Friday, 21 July 2006, after the jury selection was completed and motions in limine had been heard, the trial court heard arguments from Media General's counsel on its motion. Following the arguments, the trial court stated it would consider Media General's motion over the weekend. Opening statements and presentation of evidence began on the morning of 24 July 2006 and continued throughout the week. The trial court failed to rule on Media General's motion prior to proceeding with the trial.

On 26 July 2006, Media General filed with this Court a Petition for Writs of Mandamus and Prohibition and a Petition for Writ of Supersedeas and Motion for Temporary Stay. On 4 August 2006, Media General filed with this Court a Supplemented Petition for Writs of Mandamus and Prohibition and a Petition for Writ of Certiorari. By order dated 23 August 2006, this Court denied the Petition for Writs of Mandamus and Prohibition, dismissed as moot the Petition for Writ of Supersedeas, and dismissed the Petition for Writ of Certiorari.

On 27 July 2006, the trial court dissolved the gag order after the matter had been submitted to the jury and stated, "Let the record show that the Court now terminates any restrictions that may have been imposed on anybody about speaking to anybody." Media General appeals.

II. Issues

Media General argues the trial court erred by: (1) entering and failing to dissolve the unconstitutional gag order; (2) denying its motion pursuant to N.C. Gen.Stat. § 1-72.1 and allowing the gag order to remain in place for the duration of the trial; and (3) violating the procedural requirements of N.C. Gen. Stat. § 1-72.1.

III. Mootness

The trial of this matter has concluded and Media General cannot obtain the relief it sought through the dissolution of the gag order. When the trial court dissolved the gag order after trial, it stated, "[t]hat makes [Media General's] suit moot." The threshold question is whether Media General's appeal is moot and should its appeal be dismissed.

Our Supreme Court has stated, "Whenever, during the course of litigation it develops ... that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979) (citations omitted).

Our Courts have long recognized an exception to dismissals for mootness and have held it is proper for the appellate courts to hear appeals where the issues are "capable of repetition, yet evading review." Boney Publishers, Inc. v. Burlington City Council, 151 N.C.App. 651, 654, 566 S.E.2d 701, 703-04 (citing Crumpler v. Thornburg, 92 N.C.App. 719, 723, 375 S.E.2d 708, 711, disc. rev. denied, 324 N.C. 543, 380 S.E.2d 770 (1989)), disc. rev. denied, 356 N.C. 297, 571 S.E.2d 221 (2002); see Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43, 56 (1998) (The capable-of-repetition exception to mootness applies where: "(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again." (quotation omitted)).

This Court adopted these factors and has stated:

There are two elements required for the exception to apply: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.

Boney Publishers, Inc., 151 N.C.App. at 654, 566 S.E.2d at 703-04.

In Boney Publishers, Inc., the plaintiff, a newspaper publisher, alleged the Burlington City Counsel had violated the Open Meetings Law and Public Records Act, and sought declaratory and injunctive relief. 151 N.C.App. at 652, 566 S.E.2d at 702-03. We stated the appeal was "technically moot because the information sought by plaintiff ha[d] been fully disclosed." Id. at 654, 566 S.E.2d at 703. However, this Court applied an exception to dismissing the plaintiff's appeal as moot because: (1) all the requested information was disclosed in open session well before the controversy could be fully litigated and (2) there was a reasonable likelihood that the defendant, in considering the acquisition of other property for municipal purposes, could repeat the challenged conduct and subject the plaintiff to the same action and restrictions. Id. at 654, 566 S.E.2d at 704.

Here, as in Boney Publishers, Inc., the gag order was lifted and the court proceedings completed before this controversy could be fully resolved. The trial court and this Court had not ruled upon Media General's motion and appeal prior to the completion of the trial. A reasonable likelihood remains that the trial court might attempt to repeat the conduct at issue in this case and subject Media General to the same or a similar action in another case. Due to the trial court's failure to rule upon Media General's motion, the short duration of the trial, and the elapsed time to obtain appellate review, Media General's allegations are "capable of repetition, yet evading review" and are properly before this Court. Id. at 651, 566 S.E.2d at 703-04.

IV. Constitutionality of the Gag Order

Media General argues the trial court erred by entering and then failing to dissolve the unconstitutional gag order. We agree.

A. Standard of Review

"It is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated." Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001). We review this issue de novo.

B. Analysis

In Branzburg v. Hayes, the United States Supreme Court stated, "We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626, 639 (1972).

Similarly, the United States Court of Appeals for the Fourth Circuit has held, "There are `First Amendment interests in newsgathering.'" Food Lion, Inc. v. Capital Cities/ABC Inc., 194 F.3d 505, 520 (4th Cir.1999) (quoting In re Shain, 978 F.2d 850, 855 (4th Cir.1992)).

The United States Court of Appeals for the Fifth Circuit has held:

The first amendment's broad shield for freedom of speech and of the press is not limited to the right to talk and to print. The value of these rights would be circumscribed [if] those who wish to disseminate information [were] denied access to it, for freedom to speak is of little value if there is nothing to say.

In re Express-News Corp., 695 F.2d 807, 808 (5th Cir.1982).

In Sherrill v. Amerada Hess Corp., this Court discussed controlling precedents concerning gag orders and unanimously stated:

"The issuance of gag orders prohibiting participants in judicial proceedings from speaking to the public or the press about those proceedings is a form of prior restraint." 1 Rodney A....