In a petition for rehearing filed Thursday, the county boards of education said justices should limit public confusion by clarifying that dismissal of any facial constitutional claims for lack of subject matter jurisdiction is without prejudice. In addition, the high court should spell out that a trial court can still oversee a remedy for violations of, at the very least, Hoke County students' constitutional rights to a "sound basic" education, according to the petition.
In the April 2 opinion — in which the high court split down party lines — justices ruled a trial court lacked the power to impose constitutional remedies for the state's failure to provide students with a quality education.
The over 30-year case has produced several Supreme Court rulings that established a constitutional right to a "sound basic" education and later determined that the state failed to deliver on that promise.
The parties have grappled for decades with how to fix these constitutional shortcomings. This most recent appeal, from Republican legislators, is over a trial court's 2023 order for the state to cough up hundreds of millions of dollars as part of a multibillion-dollar remedial plan.
Chief Justice Paul Newby, who penned the April majority opinion, said the counties never adjusted their pleadings to reflect such a facial challenge to the current statewide education system. Accordingly, the trial court ceased to have jurisdiction over the case as of 2017, Justice Newby said.
The county school boards clarified in their Thursday petition that they aren't looking to rehash the dismissal of an unpled facial challenge, but asked for a limited rehearing on two issues.
First, the high court should make clear that it isn't overlooking centuries of precedent by dismissing with prejudice claims over which the court lacks subject matter jurisdiction, the counties said.
When justices ruled the counties exceeded the trial court's subject matter jurisdiction in pursuing a facial constitutional challenge, they "drew a sharp line" between constitutional claims described as as-applied and facial, the counties said.
There was no jurisdictional dispute over as-applied claims, according to the petition. Instead, the court's jurisdictional focus was on facial claims. Nonetheless, the high court dismissed all claims with prejudice.
"But such an outcome, dismissal with prejudice for lack of subject matter jurisdiction, is a legal impossibility," the counties said, noting dismissal with prejudice is a disposition on the merits.
This very court described this sort of scenario as a "usurpation of power" that voids the judgment itself, the counties said, citing the high court's 1948 ruling in McRary v. McRary.
Left standing, the opinion could impact future students' attempts to protect their constitutional rights through litigation and propel courts to reach the merits in cases over which they have no power, according to the petition.
Second, justices should also make clear that they did not dismiss the counties' as-applied claims for lack of subject matter jurisdiction, the counties said. The trial court had, and has, subject matter jurisdiction over as-applied claims and can oversee a remedy for violations of at-risk student's constitutional rights, as determined in 2002 after a 14-month state court bench trial, the counties said.
In fact, justices said as much in 2004 when they affirmed the trial court's 2002 order that the state must work with Hoke County to fix the "resource allocation problem," and affirmed the trial court's jurisdiction to do so, the counties said.
Though the recent opinion confirmed the trial court's 2002 order, it found that at some point after 2009 and before 2017, "the original claims were neglected, steadily abandoned, and seemingly forgotten" as the counties began pursuing facial claims, according to the petition.
Even if the counties' as-applied claims morphed into facial claims, it doesn't rob the trial court of jurisdiction to remedy the constitutional violations with respect to Hoke Country children, the counties said. Nothing in the "voluminous" record suggests these children have received any sort of remedy.
"The record shows that Hoke County proved that the state was denying its at-risk students the opportunity to receive a sound basic education, and there has never been a finding that the state made good on a remedy," according to the petition.
Even more so, the trial court's jurisdiction over the whole case was never offered as an issue on appeal. Yet in dismissing the entire action, the justices appeared to toss claims over which the trial court had subject matter jurisdiction, denying at-risk students the remedy they're entitled to, according to the petition.
The justices also erred in considering the dismissal of as-applied claims through a "mootness" lens, the counties contended. But mootness is not jurisdictional, and this appeal was explicitly on the basis of jurisdiction, they said. Furthermore, any dismissal for mootness purposes should be without prejudice.
If the court believes that circumstances in Hoke County have shifted enough to moot the as-applied challenge, the right thing to do is remand for fact-finding, the counties said. Issues that underpinned the mootness finding can be easily remedied, such as adding the General Assembly as a formal party or subbing in current student-plaintiffs, they said.
The viability of these as-applied claims is a factual issue suited for a fact-finding court and the high court should remand, counties argued.
Counsel for the North Carolina State Board of Education declined to comment. Counsel for the rest of the parties did not respond to a comment request Monday.
The counties are represented by Melanie Black Dubis and Catherine G. Clodfelter of Parker Poe Adams & Bernstein LLP and H. Lawrence Armstrong Jr. of The Armstrong Law Firm PA.
The Charlotte-Mecklenburg Board of Education, plaintiff intervenor, is represented by Neal A. Ramee and David B. Noland of Tharrington Smith LLP.
The state is represented by Jeff Jackson, Daniel P. Mosteller and Lindsay V. Smith of the North Carolina Department of Justice.
The North Carolina State Board of Education is represented by Tiffany Lucas and Todd Russell of the North Carolina Department of Justice.
The case is Hoke County Board of Education v. State, case number 425A21-3, in the North Carolina Supreme Court.
--Additional reporting by Hayley Fowler. Editing by Marygrace Anderson.
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