Court of Appeals rejects McCrory Administration's claims of immunity

The administration of Gov. Pat McCrory is claiming sovereign immunity in a public records lawsuit filed by several media and advocacy organizations. On Tuesday, the Court of Appeals dismissed that claim and returned the case to the trial court. 

On Tuesday, the Court of Appeals dismissed claims of sovereign immunity raised by Gov. Pat McCrory and several of his cabinet secretaries in an ongoing public records lawsuit. The move returns the case to the trial court for discovery. 

In July 2015, a coalition of media outlets and advocacy groups filed a lawsuit against McCrory and several of his cabinet secretaries over the handling of public records requests. The central issue in the case is the length of time some agencies, including the governor’s office, have taken to make records available. 

In May 2016, Superior Court Judge John “Joe” Craig, of High Point, held a hearing on preliminary motions in the case. At that hearing, lawyers for the McCrory administration raised the defense of sovereign immunity for the first time. Sovereign immunity is a legal doctrine that the state generally cannot be sued unless it consents to a lawsuit. Failure to raise an immunity claim in a timely manner waives the defense, and the Public Records Law explicitly anticipates state agencies facing lawsuits should they fail to comply. Craig issued an order rejecting most of the McCrory Administration’s motions, including the one releated to immunity.  

 Tuesday, the Court of Appeals rejected the sovereign immunity claims. In a unanimous opinion, a three-judge panel made up of judges Linda Stephens, Wanda Bryant and Ann Marie Calabria ruled that the immunity claim was not properly raised in the trial court because it was never mentioned in any of the legal filings prior to the hearing in front of Craig and the plaintiff’s lawyers were not given an opportunity to prepare adequately for that argument when it was raised in court. 

The appeal came at an early stage in the lawsuit. It’s what is known as an “interlocutory” appeal, which occurs when a case has not yet been settled at the trial level and allowing it to move forward could jeopardize a substantial right of one of the parties.

After the Court of Appeals decision, the case is likely to return to superior court for further proceedings. A new law that allows all 15 judges of the Court of Appeals to rehear cases as a group, while sitting en banc, will not take effect until February, after the time in which the administration will have to request an appeal if it chooses to. Because the decision was unanimous, the N.C. Supreme Court is not required to hear any appeal of Tuesday’s opinion, although it could choose to do so. 

Several of the plaintiffs in the lawsuit are organizational members of the N.C. Open Government Coalition, including the News & Observer, Charlotte Observer, WRAL, and N.C. Policy Watch. 

Learn more about the N.C. Open Government Coalition here