Civil Practice – Sovereign Immunity – Constitutional – Schools & School Boards – Fines

Richmond County Board of Education v. Cowell (Lawyers Weekly No. 3-07-0164, 17 pp.) (Douglas McCullough, J.) Appealed from Wake County Superior Court (W. Osmond Smith III, J.) N.C. App.

Holding: Sovereign immunity does not bar a school board’s challenge – brought under N.C. Const. art. IX, § 7 – to a 2011 statutory amendment, which requires that $50 be sent to the Department of Public Safety whenever someone is convicted of an improper equipment offense.

We affirm the trial court’s denial of defendants’ motion to dismiss on the basis of sovereign immunity. With regard to the other dismissal grounds argued by defendants, we dismiss defendants’ interlocutory appeal.

The plaintiff-school board alleges that the statutory amendment violates N.C. Const. art. IX, § 7 because it collects a penalty in Richmond County and diverts that penalty from Richmond County’s public school funds into the state’s general revenue fund.

Defendants are state officials sued in their official capacity, and they have not expressly waived sovereign immunity. Nevertheless, the school board may sue defendants for a violation of N.C. Const. art. IX, § 7.

In Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992), our Supreme Court held, “The doctrine of sovereign immunity cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed by the Declaration of Rights [of our Constitution].”

In Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660 S.E.2d 662 (2008), this court applied sovereign immunity to bar a claim brought under N.C. Const. art II, § 23. Article II, § 23 articulates procedural rules for the passage of a revenue or tax bill; it does not articulate any rights.

Moreover, in Craig v. New Hanover County Board of Education, 363 N.C. 334, 678 S.E.2d 351 (2009), our Supreme Court stated, “This Court could hardly have been clearer in its holding in Corum: ‘[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.’” In Craig, our Supreme Court allowed the plaintiff to proceed on his “constitutional claims,” including not only two claims under Article I, but also one claim under Article IX.

Indeed, our courts have long entertained claims under Article IX, § 7. We have uncovered no case in which a plaintiff’s Article IX constitutional claim was barred by the defense of sovereign immunity.

It is generally true that where a state constitution gives the clear proceeds of fines to public schools, any statute which purports to divert the total proceeds derived from a particular type of fine to any other purpose will be held unconstitutional.

The trial court properly denied defendants’ motion to dismiss on the basis of sovereign immunity. Affirmed.