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Vaitovas v. City of Greenville (No. COA19-732): The State is Always Interested

This procedural opinion from the Court of Appeals offers a reminder of how to ensure an appeal proceeds without unnecessary delay or additional cost. Unfortunately for the parties, this object lesson comes at the expense of an appeal dismissed for lack of jurisdiction and further proceedings at the trial level before the Court of Appeals will reach the merits of what is likely to be an appeal in a very similar posture. 


Suit was brought against the City of Greenville, the Pitt County Board of Education, and the state through official-capacity claims against the President Pro Tempore of the North Carolina Senate and the Speaker of the North Carolina House of Representatives. In accordance with N.C. Gen. Stat. § 1-267.1, the litigation was transferred to a three-judge panel of superior court judges. On cross motions for summary judgment, the three-judge panel entered summary judgment in favor of the city and the board of education. Plaintiff appealed, and the city and board of education filed a joint appellee brief. 

Amidst the shuffle of the transfer to a three-judge panel and summary judgment motions, the State of North Carolina disappeared from the litigation. The claims against the State were never resolved, but the State was not present before the Court of Appeals. There was some confusion during oral arguments as to whether the State remained a party or even cared about the outcome of the litigation. 

The State had in fact filed a motion to dismiss under Rule 12(b)(6) before the litigation was transferred to the three-judge panel. The original trial court reserved ruling on the motion so that the three-judge panel could do so, but the three-judge panel never ruled on the motion. This meant that there was no resolution as to the claims against the State, meaning the appeal was of a piecemeal judgment and therefore interlocutory. As no petition for a writ of certiorari was filed, the Court of Appeals could not exercise appellate jurisdiction. Even if a petition had been filed, the Court of Appeals still would have declined to reach the merits without providing the State an opportunity to appear and advocate for the constitutionality of a duly enacted law. 

 Plaintiff’s procedural error rendered many months and much attorney time moot. This would have been prevented had plaintiff taken the time to make sure the appeal was perfected. Perfecting the appeal at the trial court not only means cleaning up the factual record, but also ensuring that all claims have been adjudicated before an appeal is taken (absent the abnormal circumstances of a true interlocutory appeal). 

The opinion’s final sentences are also a strong rejection of the idea, pressed by the plaintiff at oral argument, that the State was ambivalent to the outcome of the litigation. The State will always be interested in the facial constitutionality of statutes, and no court is going to rule on a facial challenge without hearing from the State (even if the State ultimately decides not to participate in the litigation or even defend the statute). 

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