N.C. Gov. Pat McCrory Not Immune From Public Records Lawsuit

By DAN MCCUE

(CN) – North Carolina Gov. Pat McCrory is not immune from a lawsuit filed by several news organizations accusing his administration of dragging its feet or providing incomplete and erroneous responses to their public records requests, the state’s appeals court ruled Tuesday.

A coalition of news organizations, including the state’s two biggest newspapers, the Charlotte Observer, the Raleigh News & Observer, sued the McCrory administration earlier this year, claiming that since the Republican took office in January 2013, he and his staff have implemented politics and procedures intended to frustrate the purpose of the North Carolina Public Records Act.

On April 29, 2016, the trial court granted the plaintiff’s motion to compel discovery and the defendants’ motion for a partial judgment on the pleadings.

Specifically, the trial court dismissed the news organizations’ claims pertaining to ” any public records requests made by any persons other than Plaintiffs .”

But the trial court also denied the McCrory administration’s motion to dismiss the news organization’s claims for declaratory relief as it pertains to records the government has yet to produce.

The McCrory administration then requested a stay pending the resolution of a motion if filed with the North Carolina Court of Appeals, arguing that the suit should be thrown out in its entirety on the grounds that the governor and his staff are entitled to sovereign immunity.

In a ruling announced on Tuesday, a three-judge appeals court panel rejected the governor’s argument, holding that not only had the governor and his attorneys failed to raise that defense in Superior Court, but that they had conflated two different elements of law in their arguments.

Broadly, Judge Stephens wrote that “because the record in this matter reveals that Defendants did not properly plead or argue sovereign immunity in the trial court” the appeals court was compelled to dismiss the matter out of hand, without delving into the merits of the administration’s argument.

However, she then went on, both in the opinion text and a footnote, to delve into the administration’s arguments regarding the mootness of the case and the exclusivity of the North Carolina Public Records Act’s remedies.

Attorneys for the administration specifically pointed to the case Shella vs. Moon to support their arguments.

But Stephens explained in a lengthy footnote, that in “Shella v. Moon, the plaintiff sought the release of documents related to a condemnation proceeding against her by filing an order to compel  …  After all, litigation connected to the condemnation was concluded, a representative of our State’s Department of Transportation offered the records for the plaintiff’s review.

“After the State defendants moved for summary judgment, the ‘plaintiff moved to amend [her] complaint to add certain [additional] defendants and request compensatory and punitive damages.’ The trial court granted summary judgment to the defendants, thereby denying the plaintiff’s motions, and from that ruling, the plaintiff appealed.

This Court noted that “the only recovery provided for by this statute …  is the opportunity to inspect public records” and held that, because “she has been granted the relief she sought by initiating this action under [section] 132-9[,] …  her case must be dismissed [as moot].”

Stephens said in citing Shella, the administration’s attorneys appeared to be conflating the concepts of recovery and remedy.

“‘Recovery’ is defined as ‘[t]he regaining or restoration of something lost or taken away[;] [t]he obtainment of a right to something (esp. damages) by a judgment or decree[; or a]n amount awarded in or collected from a judgment or decree[,]'” the judge wrote. “While a ‘remedy/’ is a ‘means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.'”

“Plaintiffs here, unlike the plaintiff in Shella, are not asking to recover damages from the Administration. Rather, Plaintiffs seek the remedy of a declaratory judgment. As such, while Shella may be pertinent regarding the Administration’s mootness argument, it is unavailing in connection with its exclusive remedies contention,” Stephens said.

The appeals court ruling, written by Judge Linda Stephens, means the case can now move forward in trial court, absent a review by the state Supreme Court.

Judges Wanda Bryant and Ann Marie Calabria concurred with Stephens’ opinion.

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