A few months back I blogged about what is a relatively common occurrence in opinions from the North Carolina Court of Appeals: a determination that the Court cannot reach the merits of a case because the case, in its current procedural state, is not appealable.  This scenario most typically presents itself when the appeal is interlocutory, meaning that the Order being appealed from does not dispose of the entire case, and the Court determines that the most common exception to the rule prohibiting interlocutory appeals, the “substantial right” exception found in North Carolina Rule of Appellate Procedure 28(b)(4), does not apply.  In these situations, as was the case in the opinions referenced in my prior blog post, the Court will dismiss the appeal without ever reaching the merits of the case.

 But what happens if the threshold matter of appealability depends on the merits of the case?  Had I been asked this question a week ago, I probably couldn’t easily have conjured up a scenario where this issue would arise.  However, the Court of Appeals opinion yesterday in Doe v. Charlotte-Mecklenberg Board of Education presented precisely that scenario, with the Court summing up the situation quite succinctly, stating “we cannot determine the extent to which the [Defendant] is entitled to appeal the trial court’s order on an interlocutory basis without addressing the merit of its challenge to the trial court’s determination that Plaintiff stated a claim for relief….”

This unusual reversal of analysis, in which the Court was required to examine the substance of a claim in order to determine if it could hear the appeal, arose in the ever-evolving context of governmental immunity.  In Doe, the Plaintiff was a young female who alleged that she had been sexually abused by her high school band teacher.  The facts of the case were remarkably similar to those in Craig v. New Hanover Board of Education, 363 N.C. 334 (2009), a seminal decision from the North Carolina Supreme Court in the area of governmental immunity.  In Craig, the Court held that if governmental immunity stood as an absolute bar to a Plaintiff’s state law negligence claim against a governmental entity, then the Plaintiff could alternatively advance “colorable claims directly under [the North Carolina] State Constitution based on the same facts that formed the basis for his common law negligence claim.  Id. at 340.  While courts are still grappling with the effect of the holding in Craig, the crux of the opinion seems to be that governmental immunity could not completely deprive a plaintiff of “an adequate remedy” that “provide[s] the possibility of relief under the circumstances.”  From a practical standpoint, the holding in Craig raised questions as to whether, in light of that holding, a governmental entity no longer enjoyed immunity from state law tort suits.

In Doe, the Court of Appeals answers those questions, at least for the time being.  The Plaintiff in Doe brought claims against Defendant Charlotte-Mecklenburg Board of Education for negligent hiring, supervision, and retention and negligent infliction of emotional distress.  Additionally, clearly relying on Craig, Plaintiff alleged causes of action under the North Carolina State Constitution for violation of her right to education and deprivation of liberty “as an alternative remedy, should the court find that sovereign immunity or governmental immunity in any way of its various forms exists and, if it does exist, in that event Plaintiff has no adequate remedy at law and asserts the constitutional violations pursuant to the laws of North Carolina.”

The Board of Education moved to dismiss all of Plaintiff’s claims.  The trial court granted the motions with respect to the state tort claims on the ground that the Board had governmental immunity, but denied the Board’s motion to dismiss the constitutional claims in reliance on Craig. 

The Board appealed the trial court’s denial of the motion to dismiss the constitutional claims.  In doing so, the Board acknowledged that the order was interlocutory, but contended that the trial court’s refusal to dismiss the constitutional claims affected the Board’s substantial right to governmental immunity.  Plaintiff argued that because Craig  held that governmental immunity was not a bar to constitutional claims, the Board’s appeal of the denial of those claims did not rest on governmental immunity and therefore was not appealable under the substantial right exception.  

In reviewing the threshold question of whether it could even hear the appeal, the Court noted that the Board had asserted that the Plaintiff could not circumvent governmental immunity simply by alternatively alleging constitutional claims that rested on the same alleged acts that formed the basis for Plaintiff’s negligence claims.  Therefore, the denial of the Board’s motion with respect to the constitutional claims did not mean the Board was not entitled to governmental immunity with respect to the suit as a whole, but rather that the Court must determine whether the constitutional claims asserted by Plaintiff stated a claim for relief.  Significantly, the Court held that “the mere fact that Plaintiff has asserted that certain of her claims are ‘constitutional’ in nature does not automatically mean that she has stated one or more valid constitutional claims or that the Board is not entitled to avoid liability with respect to those claims, properly understood, on governmental immunity grounds.”

In essence, the Court narrowly interpreted the holding in Craig to say that a plaintiff could proceed directly with a constitutional claim against a governmental entity in spite of governmental immunity when the facts alleged supported a viable claim under the State Constitution, but that a plaintiff could not simply relabel a state law tort claim as a “constitutional claim” in order to avoid the governmental immunity bar.  Allowing such an approach, the Court explained, would force the governmental defendant to litigate negligence allegations for which they had the right to rely on the doctrine of immunity.  Thus, under the facts of Doe, in order to determine if the Board was entitled to appeal the interlocutory order on the grounds that it affected the Board’s right to governmental immunity, the Court first had to determine if the Board had governmental immunity from Plaintiff’s suit as a whole; i.e. could Plaintiff’s constitutional claims stand on their own, or were they simply Plaintiff’s state law tort claims improperly disguised as claims under the State Constitution.  If the constitutional claims were not viable, then the Board would be entitled to immunity from suit.  If the constitutional claims were viable, then the Board would not be entitled to governmental immunity and suit could go forward.  In the latter case, the trial court’s order might be considered an unappealable interlocutory order, but the only way for the Court to determine that would be to first analyze whether the constitutional claims were viable.  Hence, the Court found itself in the unusual position of having to review the merits of the constitutional claim in order to determine appealability.  Closing the circle of the argument, then, by virtue of the Court having to review the merits to determine appealability, the case became appealable.  Simple, right? 

When reviewing the merits of Plaintiffs “constitutional claims,” the Court determined that Plaintiff did not, in fact, assert viable claims under the State Constitution.  As such, the Board was totally immune from suit and the Court remanded the case for entry of an order dismissing the claims against the Board in their entirety.

While this decision certainly provides some clarity as to the scope of Craig for practitioners who regularly deal with governmental immunity, how long that clarity lasts remains to be seen.  Judge Stroud issued a comprehensive dissenting opinion in Doe that views the holding in Craig  in a slightly different light than did Judge Ervin and Judge Robert C. Hunter in the majority opinion.  Summarized briefly, the dissenting opinion argues that, because the facts in Doe are almost on all fours with the facts of Craig, the fact that the North Carolina Supreme Court allowed the Plaintiff to proceed on the constitutional claims in that case (as opposed to ordering that summary judgment be granted for the Defendant) dictated the same result in Doe.  Assuming the Plaintiff in Doe chooses to pursue an appeal to the Supreme Court based on this dissent, we will likely see the Supreme Court give some further guidance on the scope of its holding in Craig.  That is, I suppose, as long as the Supreme Court first finds that the issues are appealable….

-Patrick Kane