News & Observer Publ'g Co. v. McCrory, COA16-725

CourtCourt of Appeal of North Carolina (US)
PartiesTHE NEWS AND OBSERVER PUBLISHING COMPANY, et al., Plaintiffs, v. PAT McCRORY, as Governor of North Carolina, et al., Defendants.
Docket NumberNo. COA16-725,COA16-725
Decision Date20 December 2016

THE NEWS AND OBSERVER PUBLISHING COMPANY, et al., Plaintiffs,
v.
PAT McCRORY, as Governor of North Carolina, et al., Defendants.
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No. COA16-725

COURT OF APPEALS OF NORTH CAROLINA

December 20, 2016


Wake County, No. 15 CVS 9591

Appeal by Defendants from order entered 29 April 2016 by Judge John O. Craig, III in Wake County Superior Court. Heard in the Court of Appeals 1 November 2016.

Southern Environmental Law Center, by Kimberley Hunter and Douglas William Hendrick; Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, C. Amanda Martin, and Michael J. Tadych; and North Carolina Justice Center, by Carlene McNulty, for Plaintiffs.

Robinson, Bradshaw & Hinson, P.A., by David C. Wright, III and Erik R. Zimmerman; and Robert F. Orr, for Defendants; Office of General Counsel, by General Counsel Robert C. Stephens, Jr., Deputy General Counsel Jonathan R. Harris, and Deputy General Counsel Lindsey E. Wakeley, for Defendant McCrory.

STEPHENS, Judge.

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This appeal arises from a partial grant of judgment on the pleadings in favor of Plaintiffs. Defendants argue that Plaintiffs' claims are barred by the doctrine of sovereign immunity, or, in the alternative, that Plaintiffs' claims are either precluded under the principles of declaratory and mandamus relief in this State, or are moot. In light of our well-established precedent regarding interlocutory appeals, only Defendants' sovereign immunity contentions could provide them a path to immediate appellate review. However, because the record in this matter reveals that Defendants did not properly plead or argue sovereign immunity in the trial court, we dismiss this appeal as not properly before us.

Factual and Procedural Background

Although we do not reach the merits of this interlocutory appeal, a brief review of the origins of the case provides helpful context in understanding this matter of significant public import. Defendants Pat McCrory, as Governor of North Carolina; John E. Skvarla, II, as Secretary of the North Carolina Department of Commerce; Donald R. van der Vaart, as Secretary of the North Carolina Department of Environment and Natural Resources; Dr. Aldona Z. Wos, as Secretary of the North Carolina Department of Health and Human Services; Frank L. Perry, as Secretary of the North Carolina Department of Public Safety; William G. Daughtridge, Jr., as Secretary of the North Carolina Department of Administration; Anthony J. Tata, as Secretary of the North Carolina Department of Transportation; Susan W. Kluttz, as

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Secretary of the North Carolina Department of Cultural Resources; and Lyons Gray, as Secretary of the North Carolina Department of Revenue (collectively, "the Administration") are our State's governor and his appointees, either currently or formerly2 serving as the heads of various State agencies. Plaintiffs The News and Observer Publishing Company ("N&O"); The Charlotte Observer Publishing Company ("The Observer"); Capitol Broadcasting Company, Incorporated ("WRAL"); Boney Publishers d/b/a The Alamance News; ZM INDY, Inc. d/b/a Indy Week ("Indy"); and Media General Operations, Inc., are media entities that provide news services to the citizens of our State via print and online newspapers, broadcast television stations, and online news websites. Plaintiffs The Southern Environmental Law Center ("SELC") and The North Carolina Justice Center d/b/a NC Policy Watch are not-for-profit corporations chartered in our State that, inter alia, seek to inform the public about various matters of public concern and to advocate for policies that they believe will benefit the people and environment of North Carolina.

As part of their regular activities, Plaintiffs frequently make requests for access to and copies of government documents, records, and other information

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pursuant to our State's Public Records Act ("the Act"). See N.C. Gen. Stat. § 132-1(b) (2015) (providing that, because "public records and public information compiled by the agencies of [our] government . . . are the property of the people[,] . . . . it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law"). Each Defendant, in his or her official capacity, is a public "agency" as defined in the Act and a custodian of public records under the Act. See N.C. Gen. Stat. § 132-1(a). The essence of Plaintiffs' claims is that, since Defendant McCrory took office in January 2013, the Administration has implemented policies and procedures in order to frustrate the purpose of the Act by (1) intentionally delaying or wrongfully denying access to public records so that Plaintiffs cannot provide timely and thorough information to the public about the Administration's decisions, actions, and policies, and (2) imposing or requesting unreasonable and unjustified fees and charges in connection with requests made under the Act.

Plaintiffs allege several examples of the Administration's delaying tactics, including, inter alia:

?That Indy requested copies of Defendant McCrory's travel records on 8 November 2013, spent the next 17 months narrowing and refining the scope of its request, engaged an attorney to pursue the request, and yet still received no records until 13 March 2015, when redacted records were turned over with no explanation then or now regarding the redactions.

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?That WRAL requested travel records from Defendant McCrory in February 2015, but had not received the records as of July 2015.

?That N&O requested certain correspondence between members of the Administration regarding the State's sale of the Dorothea Dix property to the City of Raleigh in July 2014, but received no records until 9 June 2015. N&O's subsequent request for additional records connected to the Dix sale has resulted in no records being turned over. WRAL requested similar records in October 2014 but also received no records until 9 June 2015.

?That SELC requested records from the Department of Transportation about a possible expansion of Interstate 77 to include High Occupancy Toll ("HOT") lanes in January 2014 and did not receive records until May 2015—after a contract to construct the HOT lanes had already been signed.

?That WRAL requested email from Defendant McCrory's office related to the proposed move of the State Bureau of Investigation from the Office of the Attorney General in May 2014, but the request was not fulfilled until June 2015, after WRAL threatened litigation over the Administration's nonresponse.

?That NC Policy Watch submitted a public records request in August 2013 to the North Carolina Department of Health and Human Services ("HHS") for records related to a departmental salary freeze and certain subsequent salary increases, but these records have never been provided.

?That The Observer requested a database from the Office of the State Medical Examiner ("OSME")—part of HHS—that included information compiled by the OSME about every death investigated by medical examiners since 2001, and, in response, HHS provided inaccurate and incomplete

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data, only turning over the complete database after a one-year delay and threats of legal action.

?That The Alamance News requested records from the Department of Commerce on 11 July 2014 related to certain economic development projects in Alamance and Orange counties, but no records were received as of July 2015.

On 21 July 2015, Plaintiffs commenced this action by the filing of a complaint and issuance of summonses in Wake County Superior Court. Plaintiffs filed an amended complaint ("the Complaint") on 22 July 2015. The Complaint seeks entry of orders (1) "in the nature of a writ of mandamus requiring [the Administration] to comply" with the Act; (2) compelling the Administration to provide any public records requested under the Act, but not yet provided; (3) declaring that certain of the Administration's policies and procedures violate the Act; (4) declaring that, under the Act, the Administration may not collect fees for inspection of public records absent a request for copies of the records; and (5) awarding reasonable attorney fees as permitted under the Act. The Administration filed its answer on 25 September 2015, and, on 17 February 2016, moved for partial judgment on the pleadings pursuant to Rule of Civil Procedure 12(c). See N.C. Gen. Stat. § 1A-1, Rule 12(c) (2015). On 26 February 2016, Plaintiffs moved for partial judgment on the pleadings and to compel discovery. The motions came on for hearing at the 23 March 2016 session of Wake County Superior Court, the Honorable John O. Craig, III, Judge presiding.

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By order entered 29 April 2016 ("the order"), the trial court denied in part and granted in part the Administration's motion for partial judgment on the pleadings, granted in part Plaintiffs' motion to compel discovery, and postponed ruling on Plaintiffs' motion for partial judgment on the pleadings. Specifically, the trial court dismissed Plaintiffs' claims "pertaining to any public records requests made by any persons other than Plaintiffs . . . to Defendants named" in the complaint, but denied the Administration's motion to dismiss Plaintiffs' claims for declaratory relief under the Act, and relief in the nature of a writ of mandamus with regard to public records requests "that have not yet been acted upon in whole or in part"—that is, where the Administration has not yet produced requested public records. The court also denied the Administration's motion to dismiss "to the extent [it] attempt[ed] to dismiss Plaintiffs' claims on grounds that the General Assembly did not authorize Plaintiffs to assert such claims against [the Administration], including as set forth particularly in the sovereign immunity discussion in Nat Harrison Assocs., Inc. v. North Carolina State Ports Authority, 280 N.C. 251, 258 (1972) and related cases."3 In connection with this portion of its ruling, the court noted that, while "the...

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