Update on Brunswick Environmental Justice Case

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Since our last post, there have been several important rulings in Royal Oak Concerned Citizens et. al v. Brunswick County:

On September 13, 2012, the Honorable Thomas Lock denied Defendant’s Motion to Dismiss Mark Hardy’s Complaint, and also denied Defendant’s Motion to Dismiss all the plaintiffs’ discrimination claims under the North Carolina Fair Housing Act (NCFHA), ruling that the “clear meaning” of the statute's language “indicates that a party may file an administrative complaint and pursue administrative remedies or, alternatively, commence a civil action.” Defendant had argued that the NCFHA requires a plaintiff to first complete an administrative process and obtain a “right-to-sue” letter from the North Carolina Human Relations Commission before filing suit in court. On September 28, 2012, Defendant filed a “Motion to Reconsider” asking Judge Lock to reverse his decision. Read the Court’s Orders and filings by both parties: Defendant's Motion to Dismiss and supporting Brief; Plaintiffs' briefs in opposition to Motion to Dismiss Hardy and ROCCA claims; Orders Denying Defendant's Motions to Dismiss Hardy and ROCCA claims; Defendant's Motion to Reconsider.

Discovery has been a contentious process since the case was first filed almost two years ago. Defendant filed a motion to prohibit Plaintiffs from deposing Assistant County Manager Steve Stone and County Commissioner Scott Phillips in October, 2012 on the grounds that those individuals were entitled to “legislative immunity.” The Honorable Gary Trawick denied that motion on November 13, 2012, and those depositions proceeded. Defendant has also deposed two of the named plaintiffs and two other ROCCA members. Read the Court’s Order and filings by both parties: Defendant's Motion for Protective Order and supporting Brief; Plaintiffs' Opposition to Motion; Order denying Motion for Protective Order.

On January 18, 2013, Plaintiffs filed a Motion to Compel Defendant to produce complete responses to a number of discovery requests, in part because Defendant had not produced an entire category of important documents: emails and other internal communications between County Commissioners and other elected officials, Planning Board members, County staff and important third parties. Plaintiffs argued that such documents were critical to carrying their burden of proof on their race discrimination claims. The Honorable Mary Ann Tally ordered Defendant to “fully and completely supplement its responses” to Plaintiffs’ discovery requests, and to include emails and other non-privileged correspondence “between Defendant, including its employees, officers and elected officials, and third parties,” responsive to those requests. Judge Tally also denied Defendant’s counter Motion to Compel. Read the Court’s Orders and filings by both parties: Plaintiffs' Motion to Compel, Defendant's Opposition to Plaintiff's Motion to Compel, Defendant's Motion to Compel, Order on Motion to Compel.

On February 18, 2013, Plaintiffs filed a Motion to Compel the production of two more fact witnesses (County Manager Marty Lawing and former County Commissioner Chair Bill Sue) whom Defendant had refused to produce on the same “legislative immunity” grounds it had asserted last fall. Defendant countered on February 21, 2013 with a Motion for Protective Order seeking to prohibit Plaintiffs from deposing Messrs Lawing and Sue. On March 5, 2013, Judge Tally ordered that the depositions would proceed, but that because Mr. Sue was entitled to legislative immunity with respect to some issues, Plaintiffs could not inquire at the deposition “as to his intentions, motives, or thought processes with respect to any quasi-judicial or legislative matters clearly defined by North Carolina law as such.” Read the Court’s Order and filings by both parties: Plaintiffs' Motion to Compel; Defendant's Motion for Protective Order; Plaintiffs' Opposition to Motion for Protective Order.

On February 28, 2013, Plaintiffs filed a Motion in the Cause for Costs on grounds Defendant was in willful non-compliance with Judge Tally’s February 7, 2013 Order, because no emails or other correspondence between County Commissioners or other elected officials, and no emails or other correspondence between Planning Board members had been produced. Plaintiffs’ Motion further argued that the dearth of emails authored by the County Manager, Assistant County Manager and Planning Director showed willful non-compliance. Plaintiffs also moved for In Camera Review of documents which Defendant had refused to produce on grounds of attorney-client privilege. Judge Tally allowed Plaintiffs’ motion for in camera review, and is reviewing those documents now. Defendant admitted at the March 4, 2013 hearing that its privilege claim as to some of the documents had been “inadvertent,” and has produced those. Defendant is also producing some additional documents sought by Plaintiffs’ order, but represented to the Court that there are no other County Commissioner emails or other correspondence responsive to Plaintiffs’ discovery requests. Judge Tally has not yet issued her order on Plaintiffs’ Motion in the Cause. Read the filings by both parties: Plaintiffs Motion in the Cause; Defendant's Opposition.

Finally, on March 8, 2013, in Johnston County where he is Resident Superior Court Judge, the Honorable Thomas Lock will hear, at long last, Defendant’s Motion to Reconsider. Defendant has asked Judge Lock to reverse his September 13, 2012 decision and dismiss Plaintiffs’ NCFHA claims on grounds they failed to exhaust their administrative remedies before filing suit in June, 2011. The hearing begins at 9:30 a.m. at the Superior Court in Smithfield, North Carolina. Read the filings by both parties:Defendant's Motion to Reconsider and supporting Brief; Plaintiffs' Opposition.

Posted by Elizabeth M. Haddix on Thu. March 7, 2013 2:50 PM
Categories: Brunswick County, Community Inclusion, Environmental Justice, Fair Housing, Race Discrimination
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