NC Court of Appeals allows Brunswick County environmental justice case to proceed to trial

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On February 12, 2014, the North Carolina Court of Appeals granted the Royal Oak plaintiffs' motion to dismiss Brunswick County's first appeal in Royal Oak Concerned Citizens Association (ROCCA) et al. v. Brunswick County. The decision means that the case will proceed to trial. ROCCA expressed great joy in this important victory. ROCCA and named plaintiffs Dennis McMillian, Curtis McMillian, and Mark Hardy are represented by the UNC Center for Civil Rights, Jack Holtzman of the Fair Housing Project of Legal Aid of North Carolina, and Ray Owens of Higgins & Owens, PLLC.

In 2012, the County moved the trial court to dismiss the case, arguing that the North Carolina Fair Housing Act (NC FHA) requires a plaintiff to first file an administrative complaint with the North Carolina Human Relations Commission (NC HRC) and receive a "right to sue" letter before filing a complaint in court. (ROCCA had not filed an administrative complaint being filing this lawsuit in court.) The trial court, the Honorable Judge Thomas Lock presiding, denied the County's motion to dismiss and found that the NC FHA allows both routes of redress at the option of the complainant. The trial court's interpretation is consistent with the federal Fair Housing Act upon which the NC FHA is modeled, which allows both routes of redress. Subsequently, the County moved the trial court to reconsider its ruling, and the court denied that motion as well, reaffirming its initial order allowing the case to proceed. The County then appealed both trial court decisions in April 2013.

On behalf of Plaintiffs, the Center and co-counsel moved to dismiss the appeals on grounds that the appeals were interlocutory, did not affect a substantial right, and were untimely. Generally, a party must wait until the final disposition of a case to appeal, and any appeal taken mid-case is “interlocutory” and improper unless the appellant can show how issue being appealed affects a “substantial right.” In their motion to dismiss the appeal, Plaintiffs argued that the County failed to show how any substantial right was affected by the trial court’s orders allowing the case to move forward to trial.

The County filed a petition for writ of certiorari, asking the NC Court of Appeals to consider its appeal despite a finding that the appeal was interlocutory and improper, and/or untimely. The NC Court of Appeals granted (PDF) Plaintiff’s motion to dismiss the appeal and denied (PDF) the County's petition for writ of certiorari. The NC Court of Appeals declined to consider the appeal, and the case will proceed to trial.

In support of ROCCA’s defense of the County's appeal, the NC HRC and the North Carolina Advocates for Justice filed separate amicus briefs with the NC Court of Appeals. The issue of whether the NC FHA requires exhaustion of administrative remedies is significant for victims of housing discrimination and fair housing advocates across the state.

A second appeal filed by the County regarding whether ROCCA may depose the county manager is still pending in the NC Court of Appeals. Oral argument was heard on January 9, 2014, and counsel expect the Court's decision in the next few months.

Posted by Bethan R. Eynon on Wed. February 12, 2014 11:14 AM
Categories: Brunswick County
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