Constitutional cure?

By GUY LORANGER, Staff Writer

A state Supreme Court ruling will allow plaintiffs to pursue claims directly under the state constitution even though their related common-law claims have been barred by the doctrine of sovereign immunity.

The issue arose in the case, Craig v. New Hanover County Bd. of Educ. (North Carolina Lawyers Weekly No. 09-06-0575, 15 pages), when a mentally disabled student sued a local school board for failing to protect him against an alleged sexual assault by another student.

Because the school board had an insurance policy that excluded the type of common-law negligence claims raised by the student, it meant the board had not waived its immunity.

The key question became whether a negligence claim that was barred by sovereign immunity could provide an "adequate remedy" under state law.

Under a 1992 Supreme Court decision, Corum v. University of North Carolina, 330 N.C. 761, a plaintiff can seek relief under the state constitution only where there is no other adequate remedy.

In 2007, a divided Court of Appeals panel ruled that the student's constitutional claims would need to be thrown out as well, holding that to be "adequate," the common-law claim did not necessarily have to be a "potentially successful" one.

The Supreme Court reversed in the unanimous June 18 opinion.

"Here, [the] plaintiff's remedy cannot be said to be adequate by any realistic measure," Justice Robin E. Hudson wrote for the high court.

"Indeed, to be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim."

Burton Craige, a Raleigh attorney who is representing the student along with Wilmington attorney Bruce Robinson, said the justices had issued a significant ruling.

"It reinvigorates the North Carolina Constitution as a remedy for governmental misconduct, and goes back to the core principles of Corum, where the Supreme Court recognized the North Carolina Constitution as a critical source of citizens' rights, which cannot be trumped by claims of governmental immunity," Craige told North Carolina Lawyers Weekly.

Robinson said the decision could have a major impact on other litigation around the state.

The issue has arisen most often in cases in which a local school representative or board has been sued, including a federal district court case reported by North Carolina Lawyers Weekly in March, Frye, et al. v. Brunswick County Bd. of Educ., et al. (North Carolina Lawyers Weekly No. 09-02-0221, 19 pages).

In some cases, the plaintiff's common-law claim has been barred because the school's board insurance policy either excluded certain types of claims or the board's participation in a risk-management agreement with the N.C. School Board Trust did not qualify as the purchase of liability insurance for the purposes of waiving immunity.

"This is extremely important because the claim here is the same as other claims that are going to be raised around the state in the future, and that's the right to an equal education under the state constitution," Robinson said.

"Now, the school board isn't going to be able to rear its ugly head and say, 'You can't sue us because of sovereign immunity.' The only way that a person can have a claim, such as this young man, is if they can couch it in constitutional terms. So, you can see the implications are tremendous."

However, defense attorneys have suggested that the Supreme Court's ruling could lead to a wave of constitutional claims whenever any affirmative defense is in the picture, such as the statute of limitations or res judicata.

"The floodgates would be opened," the N.C. School Boards Association contended in an amicus brief.

"Not only is this contrary to prior case law, but state constitutional claims would become commonplace instead of an 'extraordinary exercise of [the judiciary's] inherent constitutional power,'" the NCSBA wrote, quoting Corum.

Craige, however, said the holding would not be so broadly applied.

"The court recognized that the immunity defense is different because it completely blocks access to the courthouse. This decision does not stop [defendants] from asserting all of those other affirmative defenses. It just means that assertion of an immunity defense doesn't block a constititutional claim. That's all."

In the opinion, Justice Hudson noted the "inherent tension" that the judicial branch faces when attempting to safeguard a person's constitutional rights on one hand while respecting the doctrine of sovereign immunity on the other.

However, Hudson also noted what Corum called the "fanciful gesture" of stating that a person's constitutional rights should be protected while, at the same time, allowing sovereign immunity to block enforcement of those rights.

"The Court of Appeals' holding here constitutes precisely the type of 'fanciful gesture' that this Court cautioned against in Corum," Hudson wrote.

The decision in Craig affirms a New Hanover County court's 2006 decision to deny the school board's motion for summary judgment.

But the opinion does not, as Hudson wrote, "predetermine the likelihood that [the] plaintiff will win other pretrial motions, defeat affirmative defenses or ultimately succeed on the merits of his case."