in the Court of Appeals 8 February 2017.
by plaintiff from order entered 24 February 2016 by Judge W.
Osmond Smith III in Mecklenburg County No. 15 CVS 1076
& Smith, PLLC, by Paul A. Tharp and Matthew R. Arnold,
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Scott T. Slusser, for the North Carolina Department
of Transportation and the State of North Carolina.
Gibson, Dunn & Crutcher LLP, by Mitchell A. Karlan and
Jerilin Buzzetta, and Parker Poe Adams & Bernstein LLP,
by Michael G. Adams and Morgan H. Rogers, for I-77 Mobility
("plaintiff") appeals from an order granting
summary judgment in favor of the North Carolina Department of
Transportation ("NCDOT"), I-77 Mobility Partners
LLC ("Mobility"), and the State of North Carolina
("State") (collectively referred to as
"defendants") and dismissing plaintiff's claims
with prejudice. For the reasons stated herein, we affirm the
order of the trial court.
June 2014, NCDOT and Mobility, a Delaware limited liability
company, entered into a comprehensive agreement (the
"Comprehensive Agreement") for the I-77 HOT Lanes
Project (the "Project"). The I-77 corridor is
"one of the most congested corridors in the
[S]tate" and the Project offered a "comprehensive
congestion management solution for approximately [twenty-six]
miles of the I-77 corridor through the use of HOV3 policy
and managed lanes and supports future expansion of
transit." The Comprehensive Agreement was a product of
the State's "desires to facilitate private sector
investment and participation in the development of the
State's transportation system via public-private
partnership agreements" pursuant to N.C. Gen. Stat.
§ 136-18(39) et seq. ("the P3
Statute provides, in pertinent part, that the NCDOT is vested
with the power to
enter into partnership agreements with private entities, and
authorized political subdivisions to finance, by tolls,
contracts, and other financing methods authorized by law, the
cost of acquiring, constructing, equipping, maintaining, and
operating transportation infrastructure in this State, and to
plan, design, develop, acquire, construct, equip, maintain,
and operate transportation infrastructure in this State.
N.C. Gen. Stat. § 136-18(39) (2015).
the Comprehensive Agreement, NCDOT granted Mobility "the
exclusive right, and [Mobility] accepts the obligation, to
finance, develop, design, construct, operate and maintain the
Project[.]" This included the exclusive right to impose
tolls and incidental charges upon the users of the High
Occupancy Toll ("HOT") lanes; to establish, modify,
and adjust the rate of such tolls and incidental charges in
accordance with law; and to enforce and collect the tolls and
incidental charges from the users of the HOT lanes in
accordance with the terms and conditions of the Comprehensive
January 2015, plaintiff filed a "Complaint for
Declaratory Judgment and Preliminary and Permanent Injunctive
Relief." Plaintiff sought a declaration as to the
constitutionality of the P3 Statute and the Comprehensive
Agreement between the NCDOT and Mobility. Plaintiff's
arguments included the following, inter alia: the
General Assembly unconstitutionally delegated authority to
the NCDOT to set toll rates without adequate standards and
safeguards for which to exercise that power, to contract with
Mobility and allow an unlimited rate of return on investment,
and to contract with Mobility and allow the NCDOT and the
State to compensate Mobility for its tax liabilities;
violation of taxing power; violation of the public purpose
doctrine; violation of due process; contrary to public
policy; lack of authority; illegal contract; and motion for
preliminary and permanent injunction.
March 2015, the trial court entered an order finding that
plaintiff "ha[d] not shown a sufficient likelihood of
success on the merits to justify granting a preliminary
injunction" and denying plaintiff's motion for a
June 2015, Mobility filed a motion for summary judgment. On
19 June 2015, the State and the NCDOT filed a motion for
summary judgment. On 13 November 2015, plaintiff filed a
motion for summary judgment.
February 2016, the trial court entered an order concluding as
4. As to the Motions for Summary Judgment filed by each
party, it should be noted that it is not within the province,
function or duty of the Court to determine the desirability
or wisdom of the legislation or the contract at issue. These
policy decisions are within the purview of the legislature
and the North Carolina Department of Transportation. The
subject legislation is not unconstitutional as applied, nor
is the contract unlawful.
5. As to the Motions for Summary Judgment filed by each
party, there is no genuine issue as to any material fact,
that Defendants are entitled to a judgment as a matter of
law, and that Plaintiff is not entitled to judgment as a
matter of law.
the trial court granted defendants' motions for summary
judgment and denied plaintiff's motion for summary
judgment. Plaintiff's claims were dismissed with
March 2016, plaintiff filed notice of appeal.
Standard of Review
standard of review of an appeal from summary judgment is de
novo[.]" In re Will of Jones, 362 N.C.
569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).
"In ruling on a motion for summary judgment the evidence
is viewed in the light most favorable to the non-moving
party." Hinson v. Hinson, 80 N.C.App. 561, 563,
343 S.E.2d 266, 268 (1986) (citation omitted). Rule 56 of the
North Carolina Rules of Civil Procedure provides that summary
judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law."
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015).
The showing required for summary judgment may be accomplished
by proving an essential element of the opposing party's
claim does not exist, cannot be proven at trial, or would be
barred by an affirmative defense . . . or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of her claim[.]
Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,
appeal, plaintiff argues that the trial court erred by: (A)
concluding that the North Carolina General Assembly's
delegation of power to the NCDOT and NCDOT's arrangement
with Mobility did not constitute an unconstitutional
delegation of power; (B) concluding that the expenditure by
the NCDOT and the State served a public purpose and was
constitutional under Article V, Section 2(1) of the North
Carolina Constitution; (C) concluding that the Comprehensive
Agreement did not violate the Turnpike Statute; and (D)
concluding that the North Carolina General Assembly did not
unconstitutionally delegate its authority to tax to the NCDOT
in violation of Article I, Section 8 and Article II, Section
23 of the North Carolina Constitution and the Due Process
Clause of the United States Constitution. We address each
argument in turn.
Delegation of Power
argues that the trial court erred by concluding that the
General Assembly's delegation of power to the NCDOT and
NCDOT's arrangement with Mobility did not constitute an
unconstitutional delegation of power. Specifically, plaintiff
contends that the General Assembly's delegation of power
pursuant to the P3 Statute "features an absolute,
unfettered, unlimited, unilateral and therefore
unconstitutional delegation of authority to an agency and
private company." Plaintiff maintains that the P3
Statute grants unto Mobility the absolute authority to set
toll rates without any meaningful input or control by the
NCDOT or General Assembly. We are not convinced by
is well settled in this State that the courts have the power,
and it is their duty in proper cases, to declare an act of
the General Assembly unconstitutional - but it must be
plainly and clearly the case. If there is any reasonable
doubt, it will be resolved in favor of the lawful exercise of
their powers by the representatives of the people."
McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d
888, 892 (1961) (citation omitted). "In passing upon the
constitutionality of a legislative act it is not for this
Court to judge its wisdom and expediency. These matters are
the province of the General Assembly. Rather, it is the
Court's duty to determine whether the legislative act in
question exceeds constitutional limitation or
prohibition." Adams v. N.C. Dep't of
Natural & Econ. Res., 295 N.C. 683, 690, 249 S.E.2d
402, 406 (1978).
determination of whether the P3 Statute violates the rule
that the General Assembly cannot delegate its power to
legislate, we are directed by Adams.
Although this Court noted in Adams that the
legislature may not abdicate its power to make laws [or]
delegate its supreme legislative power to any . . .
coordinate branch or to any agency which it may create, we
also concluded that strict adherence to ideal notions of the
non-delegation doctrine would unduly hamper the ...