Tillett v. Town of Kill Devil Hills , 809 S.E.2d 145 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-433
Filed: 19 December 2017
Dare County, No. 15-CVS-327
JERRY R. TILLETT, Plaintiff,
v.
TOWN OF KILL DEVIL HILLS, a Body Politic and Municipal Corporation,
Defendant.
Appeal by plaintiff and defendant from order entered 14 November 2016 by
Judge Jeffery B. Foster in Dare County Superior Court. Heard in the Court of Appeals
18 October 2017.
Nexsen Pruet PLLC, by Norman W. Shearin, for plaintiff-appellee and cross-
appellant.
Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., for defendant-
appellant and cross-appellee.
DIETZ, Judge.
Judge 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 appealed.
TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
On 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 rule.
Judge 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.
Facts and Procedural History
In 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.
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TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
The 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 answer.
Ultimately, 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.
Analysis
We 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 v. McKoy, 202 N.C. App. 509,
511, 689 S.E.2d 590, 592 (2010).
The Public Records Act provides that a litigant seeking to challenge the denial
of access to public records “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).
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TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
Section 7A-38.3E of the General Statutes is titled “Mediation of public records
disputes” and requires a party who files a civil action under the Public Records Act
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).
The General Assembly’s use of the phrase “shall have jurisdiction to issue such
orders” in Section 132-9(a) is crucial to our analysis. Broadly speaking, there are two
types of rules governing the manner in which legal claims are pursued in court:
jurisdictional rules, which affect a court’s power to hear the dispute, and procedural
rules, which ensure that the legal system adjudicates the claim in an orderly way.
See Dolan v. United States, 560 U.S. 605, 610 (2010).
The distinction is important because, unlike ordinary procedural
requirements, jurisdictional requirements cannot be waived or excused by the court.
In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). Instead, if a litigant fails
to satisfy a jurisdictional requirement, the court lacks the power to adjudicate the
dispute at all—rendering any action taken in the case a nullity. State ex rel. Hanson
v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952). Moreover, unlike most
procedural violations, a defect in subject matter jurisdiction can be raised at any time,
even for the first time on appeal. Wood v. Guilford County, 355 N.C. 161, 164, 558
S.E.2d 490, 493 (2002).
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TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
Ordinarily, courts might consider a mediation requirement like the one
contained in N.C. Gen. Stat. § 7A-38.3E(b) to be procedural, rather than
jurisdictional. Dolan, 560 U.S. at 610. As a result, a court could excuse noncompliance
in certain circumstances—for example, by invoking equitable doctrines such as
estoppel or waiver.
But courts have long recognized that a legislative body is “free to attach the
conditions that go with the jurisdictional label to a rule that [courts] would prefer to
call a claim-processing rule.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). This is
so because it is the legislative branch—in our case, the General Assembly—that
establishes the jurisdiction of trial courts over these types of claims. See Bullington
v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941); N.C. Const. Art. IV, Section 12.
Simply put, even if a rule in a proceeding like this one appears to be merely
procedural, courts must treat it as jurisdictional if the General Assembly has given a
“clear indication that the provision was meant to carry jurisdictional consequences.”
Henderson, 562 U.S. at 429.
That is the case here. 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). Thus, the General Assembly has given the courts a “clear indication” that the
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TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
mandatory mediation requirements of Section 7A-38.3E are jurisdictional
requirements that must be satisfied for the courts to have the power to adjudicate the
dispute. Among these jurisdictional requirements is Section 7A-38.3E(b), which
provides that “[s]ubsequent to filing a civil action under Chapter 132 of the General
Statutes, a person shall initiate mediation pursuant to this section. Such mediation
shall be initiated 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).
We therefore hold that, in order to confer jurisdiction upon the trial court in a
Public Records Act suit, the plaintiff must initiate mediation within 30 days of the
filing of the responsive pleading as required by N.C. Gen. Stat. § 7A-38.3E(b). Judge
Tillett concedes that he did not initiate mediation within 30 days after the Town filed
its responsive pleading. Thus, we agree with the Town that the trial court lacked
jurisdiction to adjudicate this Public Records Act dispute, and we vacate the trial
court’s order. We note, however, that this ruling does not prevent Judge Tillett, or
other parties who seek access to these records, from pursuing further Public Records
Act requests and properly invoking the trial court’s jurisdiction should the Town
again refuse to produce the records.
Conclusion
The trial court lacked subject matter jurisdiction to enter the challenged order.
That order is vacated.
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TILLETT V. TOWN OF KILL DEVIL HILLS
Opinion of the Court
VACATED.
Judges ELMORE and INMAN concur.
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