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North Carolina State Board of Education v. State

Supreme Court of North Carolina

June 8, 2018

NORTH CAROLINA STATE BOARD OF EDUCATION
v.
THE STATE OF NORTH CAROLINA and MARK JOHNSON, in his official capacity

          Heard in the Supreme Court on 7 February 2018.

          On discretionary review pursuant to N.C. G.S. § 7A-31, prior to a determination by the Court of Appeals, of an order granting summary judgment entered on 14 July 2017 by a three-judge panel of the Superior Court, Wake County, appointed by the Chief Justice pursuant to N.C. G.S. § 1-267.1.

          Robert F. Orr, PLLC, by Robert F. Orr; and Poyner Spruill LLP, by Andrew H. Erteschik, Saad Gul, and John M. Durnovich, for plaintiff-appellant.

          Joshua H. Stein, Attorney General, by Olga Vysotskaya de Brito, Special Deputy Attorney General, and Amar Majmundar, Senior Deputy Attorney General, for defendant-appellee State of North Carolina.

          Blanchard, Miller, Lewis & Isley, P.A., by E. Hardy Lewis and Philip R. Isley, for defendant-appellee Mark Johnson.

          ERVIN, Justice.

         This case requires us to determine whether legislation amending portions of Chapter 115C and other provisions of the North Carolina General Statutes violates Article IX, Section 5 of the Constitution of North Carolina. Plaintiff North Carolina State Board of Education is an entity established by the North Carolina Constitution that consists of the Lieutenant Governor, State Treasurer, and eleven additional members, including one member from each of the State's eight educational districts, who are appointed by the Governor, subject to confirmation by the General Assembly, and serve eight-year overlapping terms. N.C. Const. art. IX, § 4. The Superintendent of Public Instruction is a popularly elected official who holds an office established by Article III, Section 7 of the North Carolina Constitution.

         On 8 November 2016, defendant Mark Johnson was elected Superintendent of Public Instruction for a four-year term commencing on 1 January 2017. On 16 December 2016, the General Assembly enacted House Bill 17, which is captioned, in part, "An Act to Clarify the Superintendent of Public Instruction's Role as the Administrative Head of the Department of Public Instruction." Act of Dec. 19, 2016, ch. 126, 2017-1 N.C. Adv. Legis. Serv. 37 (LexisNexis) (Session Law 2016-126). House Bill 17, which amended numerous provisions of N.C. G.S. Chapter 115C, eliminated certain aspects of the Board's oversight of a number of the Superintendent's powers and duties, and assigned several powers and duties that had formerly belonged to the Board or the Governor to the Superintendent. Former Governor Patrick L. McCrory signed House Bill 17, which became Session Law 2016-126, into law on 19 December 2016.

         On 29 December 2016, the Board filed a complaint in the Superior Court, Wake County, in which it sought a declaratory judgment to the effect that certain provisions of Session Law 2016-126 are unconstitutional and to have the challenged statutory provisions temporarily restrained and preliminarily and permanently enjoined. According to the allegations set out in the Board's complaint, Session Law 2016-126 unconstitutionally transferred the authority conferred upon the Board in Article IX, Section 5 to "supervise . . . the free public school system, " to "administer the free public school system, " to "supervise . . . the educational funds provided for [the free public school system's] support, " and to "administer . . . the educational funds provided for [the free public school system's] support" to the Superintendent. On the same date, Judge Donald W. Stephens entered a temporary restraining order in which he concluded, among other things, that, "when a constitution expressly confers certain powers and duties on an entity, those powers and duties cannot be transferred to someone else without a constitutional amendment" and that "the [challenged] provisions of [House Bill 17] . . . attempt to transfer these constitutional powers and duties . . . from the Board to the Superintendent of Public Instruction." As a result, Judge Stephens enjoined the State and its "officers, agents, servants, employees, and attorneys" from "taking any action to implement or enforce" Session Law 2016-126.

         On 30 December 2016, Judge Stephens entered an order transferring this case to a three-judge panel of the Superior Court, Wake County, on the grounds that N.C. G.S. § 1-267.1 and N.C. G.S. § 1-1A, Rule 42(b)(4) require that facial challenges to the constitutionality of statutes, such as the one advanced by the Board in this case, be heard and determined by such an entity. On 6 January 2017, the three-judge panel entered a consent order extending Judge Stephens' temporary restraining order "until a preliminary injunction hearing can be consolidated with the parties' dispositive motions." On 20 January 2017, the Superintendent indicated that he intended to intervene in this case. On 30 January 2017, the Board filed a summary judgment motion. On 1 March 2017, the three-judge panel entered an order that, among other things, recognized the Superintendent's intervention. On 12 April 2017, the Superintendent filed a summary judgment motion and the State filed a motion seeking to have the Board's complaint dismissed on subject matter and personal jurisdiction grounds and for failure to state a claim for which relief could be granted.

         On 14 July 2017, the three-judge panel entered an order converting the State's dismissal motion into a summary judgment motion and granting summary judgment in favor of the State and the Superintendent. On the same day, the three-judge panel filed a memorandum of opinion explaining its decision to grant summary judgment in favor of the State and the Superintendent in which it concluded, in pertinent part, that:

[M]any of the provisions of [Session Law 2016-126], particularly those which were not specifically addressed by the [p]laintiffs in their briefs and oral arguments, simply shift the details of day-to-day operations, such as hiring authority, from the State Board to the Superintendent. This court further concludes that those aspects of the legislation appear to fall well within the constitutional authority of the General Assembly to define specifics of the relationship between the State Board of Education and the Superintendent of Public Instruction.
North Carolina's Constitution establishes two entities responsible for the governance of the public school system: the State Board and the Superintendent. The allocation of powers and duties between these two constitutional entities has changed over time such that there has been an ebb and flow of the powers of each entity over the years, depending on various acts of legislation. Nevertheless, it appears to be the clear intent of the Constitution that the State Board shall have the primary authority to supervise and administer the free public school system and the educational funds provided for the support thereof, and that the State Board is empowered to make all needed rules and regulations related to each of those functions, subject to laws passed by the General Assembly. It also appears clear that as secretary to the State Board and chief administrative officer of the State Board, the Superintendent is primarily responsible for overseeing the day-to-day management and operations of the state's free public school system.
While the parties disagree as to what, if any, limits are placed on the power of the General Assembly to shift responsibilities back and forth between the State Board and Superintendent, this Court does not consider it necessary to articulate a precise definition on that boundary. Suffice it to say, it is at least abundantly clear to this Court that this action by the General Assembly in enacting [Session Law 2016-126] is not such a pervasive transfer of powers and authorities so as to transfer the inherent powers of the State Board to supervise and administer the public schools, nor does it render the State Board an "empty shell, " nor does this action, which [p]laintiffs contend to be an infringement upon the constitutional powers and duties of the State Board of Education, operate to "unnecessarily restrict[ ] [the State Board of Education's] engaging in constitutional duties."

N.C. State Bd. of Educ. v. State, No. 16 CVS 15607 ( N.C. Super. Ct. Wake County July 14, 2017), at 4-5 (unpublished) [hereinafter Memorandum] (last alteration in original) (quoting State v. Camacho, 329 N.C. 589, 596, 406 S.E.2d 868, 872 (1991)). The three-judge panel paid particular attention to a provision of the newly enacted legislation providing that the Superintendent will "have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system, " ch. 126, sec. 4, 2017-1, N.C. Adv. Legis. Serv. at 39 (amending N.C. G.S. § 115C-21(a)(5)), and concluded that, rather than transferring authority from the Board to the Superintendent, the provision in question gives the Superintendent the ability "to manage the day-to-day operations of the school system, subject to general oversight by the State Board, " and noted that other provisions of Session Law 2016-126, including those providing that the Board "shall establish all needed rules and regulations for the system of free public schools, " id., sec. 2, at 38 (amending N.C. G.S. § 115C-12), and that the Superintendent "shall administer all needed rules and regulations adopted by the [Board, ]" id., serve to "place[ ] a limit on the Superintendent's power, leaving the ultimate authority to supervise and administer the public school system with the State Board." Memorandum at 6. Similarly, the three-judge panel concluded that the provision of Session Law 2016-126 authorizing the Superintendent to "administer funds appropriated for the operations of the State Board of Education and for aid to local school administrative units, " id., sec. 4, at 40 (enacting N.C. G.S. § 115C-21(b)(1b)), is subject to "a limiting principle" given that Section 5 of Session Law 2016-126 requires the Superintendent to "administer any available educational funds through the Department of Public Instruction in accordance with all needed rules and regulations adopted by the State Board of Education, " "thereby leaving the ultimate authority to supervise and administer the school system's funds with the State Board." Memorandum at 6. Finally, the three-judge panel concluded that replacement of the word "policy" with the phrase "all needed rules and regulations" in N.C. G.S. § 115C-12 "does not change the constitutional role of the State Board of Education" or "conflict with the roles of the parties as defined by the state constitution" given the Board's constitutional authority to establish rules and regulations for the purpose of supervising and administering the public school system. Id. at 6-7. As a result, given that Session Law 2016-126 allows the Board to continue to "supervise and administer the public schools and make all necessary rules and regulations" and subjects the Superintendent's duties to the "power of the State Board, " the three-judge panel concluded that statutory changes worked by Session Law 2016-126 do not contravene the relevant provisions of the North Carolina Constitution. Id. at 7.

         On 20 July 2017, the Board noted an appeal to the Court of Appeals from the three-judge panel's order. On 5 September 2017, the Board requested the three-judge panel to continue to stay its decision pending completion of all proceedings on appeal. On 11 September 2017, the three-judge panel entered an order allowing the existing stay to remain in effect until a hearing on the extension motion could be held. On 20 September 2017, the Board sought a temporary stay and a writ of supersedeas from the Court of Appeals, which, on 5 October 2017, granted the requested temporary relief "to the extent that the challenged provisions of [Session Law 2016-126] empower the Superintendent of Public Instruction to enter into statewide contracts for the public school system which could not be terminated by the Board immediately upon any decision by our Court in this matter which determines that the Board has the authority under our State Constitution to enter into such contracts." On 5 October 2017, the Board sought a temporary stay and the issuance of a writ of supersedeas from this Court, which granted a temporary stay on 16 October 2017 and allowed the Board's supersedeas petition on 7 December 2017. On 15 November 2017, the Board filed a petition with this Court seeking discretionary review of the three-judge panel's order prior to determination by the Court of Appeals. We allowed the Board's discretionary review petition on 7 December 2017.

         In seeking relief from the three-judge panel's decision from this Court, the Board argues that the panel erroneously concluded that Session Law 2016-126 did not impermissibly transfer authority from the Board to the Superintendent given the newly enacted statutory language providing that "[i]t shall be the duty of the Superintendent" to "have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system" and to "administer funds appropriated for the operations of the State Board of Education and for aid to local school administrative units." Ch. 126, sec. 4, 2017-1 N.C. Adv. Legis. Serv. at 38-40 (amending N.C. G.S. § 115C-21(a)(5) and enacting N.C. G.S. § 115C-21(b)(1b)). According to the Board, these provisions clearly "attempt[ ] to transfer to the [Superintendent] the same powers that the people of North Carolina in their Constitution vested in the Board." In the Board's view, Session Law 2016-126's "attempt[ ] to statutorily reassign the Board's constitutional powers to the" Superintendent runs afoul of the Board's "constitutional power to supervise and administer the public school system and its funds" on the grounds that, "when a constitution expressly commits certain powers and duties to an entity, those powers and duties cannot be reassigned to a different entity without a constitutional amendment, " citing Camacho, 329 N.C. at 594, 406 S.E.2d at 871; Mial v. Ellington, 134 N.C. 131, 162, 46 S.E. 961, 971 (1903); Wilmington, Columbia & Augusta Railroad Co. v. Board of Commissioners of Brunswick County, 72 N.C. 10, 13 (1875); and King v. Hunter, 65 N.C. 603, 612 (1871).

         The Board contends that a decision to transfer its constitutional authority to the Superintendent "defies the intent of the framers" of the North Carolina Constitution, who included the Board and its powers in the constitution in order to effectuate Article I, Section 15 of the same document, which provides that "[t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right." Although the constitutional provisions establishing the Board and defining its authority have been amended on a number of occasions, the authority granted to the Board by the 1868 constitution, which provided that "[t]he Board of Education . . . shall have full power to legislate and make all needful rules and regulations in relation to Free Public Schools, " and that "all acts, rules and regulations of said Board may be altered, amended or repealed by the General Assembly, and when so altered, amended or repealed, . . . shall not be re-enacted by the Board, " N.C. Const. of 1868 art. IX, § 9, have been carried forward in subsequent revisions to the educational provisions of the North Carolina Constitution. For example, the 1942 amendments to the relevant constitutional provisions state that the Board "shall succeed to all the powers . . . of the State Board of Education as heretofore constituted, " while the drafters of the 1971 constitution indicated that the proposed revisions, among other things, "restate[ ], in much abbreviated form, the duties of the State Board of Education, but without any intention that its authority be reduced." Report of the North Carolina State Constitution Study Commission 34 (1968). In view of the fact that the framers of the North Carolina Constitution intended that "[t]he general supervision and administration of the free public school system, and of the educational funds provided for the support thereof . . . shall . . . be vested in the State Board of Education, " N.C. ...


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