Update on Brunswick County Environmental Justice Case

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Court of Appeals
ROCCA members and Center attorneys and co-counsel outside the NC Court of Appeals.

On November 13, 2013, Plaintiffs requested the trial court to enter a stay of all trial court litigation pending the North Carolina Court of Appeals’ decisions in the County’s three interlocutory appeals. The Rule 2.1 Judge assigned to the case, the Honorable Thomas Lock, granted Plaintiffs' request. Read the order (PDF).

On December 6, 2013, Judge Lock denied the County’s motion to compel production of notes ROCCA’s president, Lewis Dozier, made at his lawyer’s request during the depositions of the County’s witnesses. Judge Lock found that such notes are protected by qualified work product immunity, and because the County had made no showing of undue hardship or substantial need for those notes, it was not entitled to them. Read the County's brief (PDF), Plaintiffs' brief (PDF), and Judge Lock's order (PDF).

The County's Appeals

The first two of the County’s three interlocutory appeals concerns Judge Tally’s March 2013 order compelling production of former Brunswick County Manager Marty Lawing for the deposition Plaintiffs first noticed in January 2013. The County refused to comply with that order on grounds its subsequent appeal of the order rendered the order unenforceable and divested the trial court of jurisdiction over the case. Plaintiffs argued that, because the County had failed to move for a stay, and because it had failed to carry its burden to show a substantial right affected by the order as well as any potential harm to the County that would result from taking Mr. Lawing’s deposition, the trial court retained jurisdiction and the order was enforceable.

The second appeal involves Judge Tally’s May 2013 order again compelling the County to produce Mr. Lawing for his deposition. The trial court’s May 2013 order also found that the County had failed to show how the March order affected a substantial right to justify a stay of the deposition pending an immediate appeal.

These two appeals were heard by the Court of Appeals on January 9, 2014 with oral argument by both parties. A decision from the Court is expected within the next few months. All filings can be found on the Court of Appeals website for cases COA 13-884 and COA 13-885.

The third appeal, in which the County seeks reversal of Judge Lock’s September 2012 denial of its motion to dismiss ROCCA's claims under the North Carolina Fair Housing Act on grounds the Plaintiffs had to first exhaust their administrative remedies before filing suit, will be heard by the Court of Appeals without oral argument on January 23, 2014. All filings, including two amicus briefs filed in support of Plaintiffs by the North Carolina Advocates for Justice and the North Carolina Human Relations Commission, can be found on the Court of Appeals website for case COA 13-822.

Posted by Bethan R. Eynon on Mon. January 13, 2014 2:52 PM
Categories: Brunswick County, Environmental Justice
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