An attorney for Gov. Pat McCrory argued Tuesday before a three-panel judge in the North Carolina Court of Appeals that a trial court should have dismissed an open records lawsuit because of sovereign immunity.
The N.C. Justice Center, along with a number of media and non-profit coalition partners, filed the lawsuit against Gov. Pat McCrory in July 2015, accusing his office and administration of not fully complying with the state’s public records law.
The lawsuit was filed in Wake County Superior Court and seeks release of the various requested records, as well as policies that would prevent excessive fees to access public records and require prompt responses to future public records requests.
David Wright, McCrory’s attorney, said Tuesday that sovereign immunity guarantees the right to not go to trial and to not be subject to discovery and that it is the prerogative of the legislature, not the courts, to determine when and for what the state may be sued.
He said the only remedy for violations of the public records law is for a court to order expedient production of the records requested and if the plaintiff prevails, they are entitled to attorney’s fees. He asked the court to reverse the lower court’s decision not to dismiss the case and declare it dismissed as moot.
Kym Hunter, who represents the Southern Environmental Law Center, and Hugh Stevens, who represents media corporations in the lawsuit, argued that the case could not be deemed moot because there was still live controversy, including unfulfilled requests and a dispute about the fees for inspection of public records.
Hunter said the appeal is brought from a partial judgment and that the issue of sovereign immunity had never been raised in writing or in any court hearing until the request for dismissal.
“It was surprising to see this issue come up so late in the day and become a showstopper,” she said.
Stevens said that under Wright’s theory of the law, a governor could order his or her staff to never comply with a public records request and a court could not order relief of any sort.
“Basically, what they want you to do is turn decades of precedent on its head,” he said.
He also said that without proceeding, there was no way to tell if they were ignoring the law intentionally or were just incompetent about the law. He gave an example of a case he was involved in where it was found the county wasn’t resistant to public records requests, officials just didn’t have the wherewithal to deal with them. As a result, the county outsourced requests.
“We don’t care as a legal matter how the defendants comply with the law … we simply ask that they be compelled to do it,” said Stevens.
Judges Ann Calabria, Wanda Bryant and Linda Stephens will decide the case.