Hoke Cnty. Bd. of Educ. v. State
| Docket Number | 425A21-1 |
| Decision Date | 03 March 2023 |
| Citation | 883 S.E.2d 480 (Mem) |
| Parties | HOKE COUNTY BOARD OF EDUCATION; et al., Plaintiffs and Charlotte-Mecklenburg Board of Education, Plaintiff-Intervenor and Rafael Penn, et al., Plaintiff-Intervenors v. STATE of North Carolina and the State Board of Education, Defendants and Charlotte-Mecklenburg Board of Education, Realigned Defendant |
| Court | North Carolina Supreme Court |
Robert Neal Hunter, Jr., Attorney at Law, For Combs, Linda, State Controller.
Amar Majmundar, Special Deputy Attorney General, For State of N.C.
Matthew Tulchin, Special Deputy Attorney General, For State of N.C.
Tiffany Y. Lucas, Deputy General Counsel, For State of N.C.
Thomas J. Ziko, Attorney at Law, For State Board of Education.
Neal A. Ramee, Attorney at Law, Raleigh, For Charlotte-Mecklenburg Schools.
David Noland, Attorney at Law, Raleigh, For Charlotte-Mecklenburg Schools.
H. Lawrence Armstrong, Attorney at Law, Enfield, For Hoke County Board of Education, et al.
Melanie Black Dubis, Attorney at Law, Raleigh, For Hoke County Board of Education, et al.
Scott B. Bayzle, Attorney at Law, For Hoke County Board of Education, et al.
Elizabeth M. Haddix, Attorney at Law, Pittsboro, For Penn, Rafael, et al.
Jaelyn D. Miller, Attorney at Law, Morrisville, For Hoke County Board of Education, et al.
Matthew F. Tilley, Attorney at Law, Charlotte, For Berger, Philip E., et al.
Russ Ferguson, Attorney at Law, Charlotte, For Berger, Philip E., et al.
W. Clark Goodman, Attorney at Law, Charlotte, For Berger, Philip E., et al.
Christopher A. Brook, Attorney at Law, For Penn, Rafael, et al.
Catherine G. Clodfelter, Attorney at Law, Raleigh, For Hoke County Board of Education, et al.
Sarah G. Boyce, Deputy Solicitor General, For State of N.C.
Ryan Y. Park, Solicitor General, For State of N.C.
South A. Moore, Assistant General Counsel, For State of N.C.
This matter is before the Court on the State Controller's motion to dissolve or lift a stay of the writ of prohibition previously issued by this Court, and legislative-intervenors’ motion for leave to brief additional issues, motion to confirm reinstatement of the writ of prohibition, and conditional petition for writ of certiorari.
On 4 November 2022, this Court issued its opinion in No. 425A21-2, Hoke County Board of Education, et al. v. State of North Carolina, et al. , 382 N.C. 386, 879 S.E.2d 193 (2022). Prior to the issuance of that opinion, the State moved to consolidate that case, No. 425A21-2, with this case, No. 425A21-1. The State's motion to consolidate was resolved by this Court's 4 November 2022 order, which stated in relevant part:
Now, on our own motion, the Court hereby treats the Writ of Prohibition filed 30 November 2021 by the Court of Appeals in 425A21-1 as consolidated with 425A21-2 to the extent necessary for the Court to address the arguments pertaining to the Writ made by the parties here; further, we hereby stay the Writ of Prohibition pending any further filings in 425A21-1 pertaining to issues not already addressed in the opinion filed on this day in 425A21-2. The State's motion to consolidate is otherwise dismissed as moot.
Upon review of the Controller's motion to lift the stay and the arguments set forth therein, this Court concludes that the motion constitutes a "filing[ ] in 425A21-1 pertaining to issues not already addressed in the opinion" filed 4 November 2022. Specifically, the Controller argues that there are many issues presented in this case that were left unaddressed in the Court's earlier opinion in No. 425A21-2. The Controller further argues that "it would be fundamentally unfair for a court to subject him, his staff, and the recipient agency staff to criminal and civil liability before the basic elements of procedural due process were met including notice, an opportunity to respond, counsel, and the right to an appeal including a hearing on these issues."
Because the Controller's motion is a further filing in 425A21-1 pertaining to issues not already addressed by this Court, and because the Controller has made a sufficient showing of substantial and irreparable harm should the stay remain in effect, we lift the stay, thereby reinstating the writ of prohibition, until this Court has an opportunity to address the remaining issues in this case.
In addition, this Court notes that legislative-intervenors properly intervened as of right in the related case, No. 425A21-2. However, they did not move to intervene in the case at hand, No. 425A21-1, and this Court's 4 November 2022 order does not relieve them of this procedural requirement. Therefore, we dismiss legislative-intervenors’ filings for failure to intervene.
By order of the Court in Conference, this the 3rd day of March 2023.
I agree that the Legislative-Intervenors’ motions and petition for a writ of certiorari should be dismissed. However, I dissent from this Court's extraordinary, unprincipled, and unprecedented action allowing the Controller's motion in this matter. Today's order abandons the concepts of respect for precedent, law of the case, stare decisis, and the rule of law all in the name of preventing the State from complying with its constitutional duty to provide a sound basic education to the children of this state.
Though this motion is styled as a motion to "dissolve or lift stays entered ... by the Court of Appeals," in substance it is an attempt to make an end run around the Rules of Appellate Procedure regarding rehearing and merely seeks rehearing on issues this Court has already decided. In fact, the Controller's position represents a stunning reversal from prior arguments to this Court, as the Controller previously argued that the issues related to the Controller's collateral attack on the trial court's order necessarily would be addressed in Leandro IV . Controller's Resp. Br. at 3, n.1, Hoke Cnty. Bd. Of Educ. v. State, 382 N.C. 386, 879 S.E.2d 193 (2022) (No. 425A21-2) ( that "the resolution of the second case [425A21-2] will resolve the issues arising from the first case [425A21-1]") . And indeed, as detailed below, those issues were addressed in the Court's opinion in Leandro VI . Yet the Controller now asserts that many issues were left unaddressed in the Court's opinion and repeats the illogical argument already rejected by this Court that, by complying with the ruling of the North Carolina Supreme Court, the Controller could be subject to criminal and civil liabilities.1 The new Court majority adopts this tortured misrepresentation of the proceedings to date without so much as a mention of any of the arguments made by the other parties to the case.
However, as the record reflects all too well, the only issues not already addressed in Leandro IV relate to whether Plaintiffs were denied a meaningful opportunity to be heard when the Court of Appeals majority shortened the time for Plaintiffs to respond to the Controller's filing in that court and used what the dissent identifies as a "shadow docket" to grant relief. Order on Writ of Prohibition at 2 (P21-511) (2022). These procedural issues were not expressly addressed in Leandro IV but were made irrelevant by this Court's ruling. Contrary to the Controller's new argument, the Court made clear in its Consolidation Order that it was addressing the merits of both the trial court's November 2021 and April 2022 Orders and the 30 November 2021 Writ of Prohibition issued by the Court of Appeals. 4 November 2022 Order of the North Carolina Supreme Court in Hoke Cnty. Bd. of Educ. v. State , 382 N.C. 386, 879 S.E.2d 193 and 425A21-2 [hereinafter 4 November 2022 Order]. If the Controller believed in good faith that the Court failed to properly or adequately consider an issue in the case, he had but one option; that is, to petition for rehearing pursuant to N.C. R. App. P. 31(a).
Although the Controller has failed to seek rehearing under Rule 31 of the North Carolina Rules of Appellate Procedure, this motion asks the Court to do exactly that: to decide again, and in a contrary manner, issues that were already decided in Leandro IV . This is not allowed under our appellate rules. See, e.g. , Nowell v. Neal , 249 N.C. 516, 521, 107 S.E.2d 107 (1959) ().
To be clear, Rule 31 is the only mechanism by which a party can ask this Court to rehear or address issues they allege the Court has not properly or adequately considered. N.C.R. App. P. 31. Rule 31 petitions have a firm deadline, which cannot be extended. See N.C.R. App. P. 27 (c) (). The deadline to seek rehearing in this case, as in all other cases, expired "fifteen days after the mandate of the court [was] issued." See N.C.R. App. 31(a). The Controller's motion effectively raises rehearing despite being time barred from doing so. See N.C.R. App. 31(a). The North Carolina Rules of Appellate Procedure do not allow for such gamesmanship. The Controller cannot legitimately request a "do over" with a newly constituted Court in order to obtain a different result. And even more importantly, this Court cannot legitimately allow such a procedure.
First and foremost, the Controller misconstrues this Court's 4 November 2022 Order. In that Order, this Court "stay[ed] the Writ of Prohibition pending any further filings in 425A21-1 pertaining to issues not already addressed in this opinion filed on this day in 425A21-2." 4 November 2022 Order. The Controller asserts "the stay was issued because the Writ of Prohibition may interfere with the rights of the parties in the superior court proceedings." The Controller also notes the Order is ambiguous because it "anticipates the Controller may need to make additional filings to protect his rights as well."
However, this Court explicitly stated its...
To continue reading
Request your trial