JERRY R. TILLETT, Plaintiff,
TOWN OF KILL DEVIL HILLS, a Body Politic and Municipal Corporation, Defendant.
in the Court of Appeals 18 October 2017.
by plaintiff and defendant from order entered 14 November
2016 by Judge Jeffery B. Foster in Dare County No. 15-CVS-327
Pruet PLLC, by Norman W. Shearin, for plaintiff-appellee and
Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr.,
for defendant-appellant and cross-appellee.
Jerry Tillett brought suit under our State's Public
Records Act to compel the Town of Kill Devil Hills to produce
documents that he contends are public records subject to
disclosure under the Act. The trial court reviewed these
documents in camera-meaning in private, outside the
presence of the parties and the public. The court determined
that two documents were subject to disclosure and ordered
them to be produced under seal to Judge Tillett. Both parties
appeal, the Town argues that the trial court lacked subject
matter jurisdiction to enter the challenged order. We agree.
The applicable section of the Public Records Act states that
a litigant "may apply to the appropriate division of the
General Court of Justice for an order compelling disclosure
or copying, and the court shall have jurisdiction to
issue such orders if the person has complied with G.S.
7A-38.3E." N.C. Gen. Stat. § 132-9(a) (emphasis
added). As explained in more detail below, the General
Assembly's use of the word "jurisdiction"
demonstrates that it intended for Section 132-9(a) to impose
a jurisdictional rule, rather than an ordinary procedural
Tillett concedes that he did not satisfy the requirements of
N.C. Gen. Stat. § 132-9(a) because he failed to initiate
mediation within 30 days of the Town's filing of a
responsive pleading, as required by N.C. Gen. Stat. §
7A-38.3E. Accordingly, we must vacate the trial court's
order for lack of subject matter jurisdiction.
and Procedural History
early 2015, Judge Jerry Tillett requested various public
records from the Town of Kill Devil Hills through the
provisions of our State's Public Records Act. The Town
produced some records but withheld others, arguing that they
fell within various exceptions to the public records laws.
Judge Tillett then sued the Town to compel disclosure of the
remaining, undisclosed records.
applicable provisions of the public records laws required
Judge Tillett to "initiate mediation . . . no later than
30 days from the filing of responsive pleadings with the
clerk in the county where the action is filed." N.C.
Gen. Stat. § 7A-38.3E(b). Judge Tillett did not initiate
mandatory mediation within 30 days after the Town filed its
after a hearing and an opportunity to review the disputed
documents in camera, the trial court ordered the
Town to produce copies of two of the challenged documents,
but also ordered that the documents must remain under seal
and not be shared with the public generally. Both parties
timely appealed the trial court's order.
begin our analysis with the Town's argument that the
trial court lacked subject matter jurisdiction to adjudicate
this dispute. Subject matter jurisdiction is a question of
law that this Court reviews de novo. McKoy ...