IN THE SUPREME COURT OF NORTH CAROLINA
No. 5PA12-2
FILED 8 NOVEMBER 2013
HOKE COUNTY BOARD OF EDUCATION; HALIFAX COUNTY BOARD OF
EDUCATION; ROBESON COUNTY BOARD OF EDUCATION; CUMBERLAND
COUNTY BOARD OF EDUCATION; VANCE COUNTY BOARD OF
EDUCATION; RANDY L. HASTY, individually and as Guardian ad Litem of
RANDELL B. HASTY; STEVEN R. SUNKEL, individually and as Guardian ad
Litem of ANDREW J. SUNKEL; LIONEL WHIDBEE, individually and as
Guardian ad Litem of JEREMY L. WHIDBEE; TYRONE T. WILLIAMS,
individually and as Guardian ad Litem of TREVELYN L. WILLIAMS; D.E.
LOCKLEAR, JR., individually and as Guardian ad Litem of JASON E.
LOCKLEAR; ANGUS B. THOMPSON II, individually and as Guardian ad Litem
of VANDALIAH J. THOMPSON; MARY ELIZABETH LOWERY, individually and
as Guardian ad Litem of LANNIE RAE LOWERY; JENNIE G. PEARSON,
individually and as Guardian ad Litem of SHARESE D. PEARSON; BENITA B.
TIPTON, individually and as Guardian ad Litem of WHITNEY B. TIPTON; DANA
HOLTON JENKINS, individually and as Guardian ad Litem of RACHEL M.
JENKINS; and LEON R. ROBINSON, individually and as Guardian ad Litem of
JUSTIN A. ROBINSON,
Plaintiffs,
and
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 1
Plaintiff-Intervenor,
and
RAFAEL PENN; CLIFTON JONES, individually and as Guardian ad Litem of
CLIFTON MATTHEW JONES; and DONNA JENKINS DAWSON, individually
and as Guardian ad Litem of NEISHA SHEMAY DAWSON and TYLER
ANTHONY HOUGH-JENKINS,
Plaintiff-Intervenors,
v.
STATE OF NORTH CAROLINA and STATE BOARD OF EDUCATION,
Defendants,
and
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION,
Realigned Defendant
1The trial court’s order and Court of Appeals opinion refer instead to the Asheville
City Board of Education, which was voluntarily dismissed from this action in May 2006.
HOKE CNTY. BD. OF EDUC. V. STATE
Opinion of the Court
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 731 S.E.2d 691 (2012), affirming an order
entered by Judge Howard E. Manning, Jr. on 18 July 2011 in Superior Court, Wake
County. Heard in the Supreme Court on 15 October 2013.
Parker Poe Adams & Bernstein LLP, by Robert W. Spearman, Melanie Black
Dubis, and Scott E. Bayzle, for plaintiff-appellees.
Tharrington Smith, L.L.P., by Deborah R. Stagner and Neal A. Ramee, for
plaintiff-intervenor-appellee Charlotte-Mecklenburg Board of Education.
UNC Center for Civil Rights, by Mark Dorosin, for plaintiff-intervenor-
appellees Penn, Jones, and Dawson.
Roy Cooper, Attorney General, by John F. Maddrey, Solicitor General, for
defendant-appellant State of North Carolina.
Smith Moore Leatherwood LLP, by James G. Exum, Jr. and Matthew Nis
Leerberg, for defendant-appellee State Board of Education.
Michael F. Easley, Governor of North Carolina, 2001-2009, amicus curiae.
Ann McColl, General Counsel, and Carrie B. Bumgardner and Jessica N.
Holmes, Staff Attorneys, for North Carolina Association of Educators, amicus
curiae.
Christine Bischoff and Carlene McNulty for North Carolina Justice Center;
Lewis Pitts and Jason Langberg for Advocates for Children’s Services of Legal
Aid of North Carolina; Christopher Brook for American Civil Liberties Union
of North Carolina Legal Foundation; Iris A. Sunshine for Children’s Law
Center of Central North Carolina; Jane Wettach for Children’s Law Clinic at
Duke Law School; Robert McCarter and Laurie Gallagher for Council for
Children’s Rights; John Rittelmeyer and Susan Pollitt for Disability Rights
North Carolina; Scott Holmes for North Carolina Central University School of
Law Civil Litigation Clinic; Gregory C. Malhoit for North Carolina Rural
Education Working Group; Anita S. Earls and Clare Barnett for Southern
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HOKE CNTY. BD. OF EDUC. V. STATE
Opinion of the Court
Coalition for Social Justice; and Mary Irvine for UNC Center on Poverty, Work
and Opportunity, amici curiae.
Poyner Spruill LLP, by Robert F. Orr, Edwin M. Speas, Jr., and John W.
O’Hale, for North Carolina School Boards Association and National School
Boards Association; and Allison B. Schafer, General Counsel, for North
Carolina School Boards Association, amici curiae.
PER CURIAM.
In Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) and Hoke County
Board of Education v. State, 358 N.C. 605, 599 S.E.2d 365 (2004),2 this Court first
found and then reaffirmed that the Constitution of North Carolina guarantees “every
child of this state an opportunity to receive a sound basic education in our public
schools.” 346 N.C. at 347, 488 S.E.2d at 255; accord 358 N.C. at 649, 599 S.E.2d at
397. Following our opinion in Leandro, the State created a prekindergarten program
(formerly “More at Four”) for at-risk four-year-old children. Plaintiffs brought the
instant proceeding to challenge changes to this program made by the General
Assembly in 2011. We conclude that subsequent legislation enacted in 2012 rendered
this controversy moot.
The instant proceeding arose after the General Assembly instituted changes to
North Carolina’s prekindergarten program in the 2011 biennial budget law. See
Current Operations and Capital Improvements Appropriations Act of 2011, ch. 145,
2 We note that the media and public frequently refer to Hoke County Board of
Education v. State as “Leandro II.”
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HOKE CNTY. BD. OF EDUC. V. STATE
Opinion of the Court
sec. 10.7, 2011 N.C. Sess. Laws 253, 354-56. Plaintiffs filed a “Motion for Hearing on
Curtailment of Pre-Kindergarten Services for At-Risk Children, Elimination of EOC
Testing, and Defendants’ Compliance with North Carolina’s Constitutional
Requirements,” in essence seeking a judicial determination that the 2011 legislative
changes failed to comply with the State’s constitutional obligations recognized in
Leandro and Hoke County. After a hearing, the trial court on 18 July 2011 entered a
“Memorandum of Decision and Order re: Pre-Kindergarten Services for At-Risk Four
Year Olds” (the “order”), finding that some of the changes violated the Constitution
of North Carolina and mandating that the State “not deny any eligible at-risk four
year old admission to the North Carolina Pre-Kindergarten Program.”
In its order, the trial court faulted two of the changes made by the General
Assembly to the prekindergarten program, finding that subsection 10.7(f), which
purportedly capped the percentage of “at-risk” children permitted in the
prekindergarten program, and subsection 10.7(h), which instituted a co-payment
requirement for certain students enrolled in the program, were unconstitutional. The
State appealed the trial court’s order to the Court of Appeals. However,
approximately one year after the trial court issued its order and while the appeal was
pending, the General Assembly amended the challenged statutory provisions. See
Act of June 5, 2012, ch. 13, sec. 2, 2011 N.C. Sess. Laws 65, 65-66 (Reg. Sess. 2012).
These amendments substantially altered the language of subsection 10.7(f) and
repealed subsection 10.7(h). Id. Thereafter, the Court of Appeals affirmed the trial
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HOKE CNTY. BD. OF EDUC. V. STATE
Opinion of the Court
court in part and dismissed the appeal in part. Hoke Cnty. Bd. of Educ. v. State, ___
N.C. App. ___, 731 S.E.2d 691 (2012). This Court allowed the State’s Petition for
Discretionary Review.
We now consider whether this appeal is moot as a result of these most recent
amendments. “Whenever, during the course of litigation it develops that . . . the
questions originally in controversy between the parties are no longer at issue, the
case should be dismissed, for courts will not entertain or proceed with a cause merely
to determine abstract propositions of law.” In re Peoples, 296 N.C. 109, 147, 250
S.E.2d 890, 912 (1978) (citations omitted), cert. denied, 442 U.S. 929, 61 L. Ed. 2d
297, 99 S. Ct. 2859 (1979). This Court consistently has “refused to consider an appeal
raising grave questions of constitutional law where, pending the appeal to it, the
cause of action had been destroyed so that the questions had become moot.” Benvenue
PTA v. Nash Cnty. Bd. of Educ., 275 N.C. 675, 680, 170 S.E.2d 473, 477 (1969) (citing
Wikel v. Bd. of Comm’rs of Jackson Cnty., 120 N.C. 311, 120 N.C. 451, 27 S.E. 117
(1897)). When, as here, the General Assembly revises a statute in a “material and
substantial” manner, with the intent “to get rid of a law of dubious constitutionality,”
the question of the act’s constitutionality becomes moot. State v. McCluney, 280 N.C.
404, 405-07, 185 S.E.2d 870, 871-72 (1972) (action challenging state obscenity statute
under United States Supreme Court precedent held moot after General Assembly
repealed and replaced statute). “The court takes judicial notice [of intervening
legislation] without formal supplemental plea . . . .” Wikel, 120 N.C. at 312, 120 N.C.
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HOKE CNTY. BD. OF EDUC. V. STATE
Opinion of the Court
at 452, 27 S.E. at 117. Once the issues on appeal become moot, the appropriate
disposition is to dismiss the appeal ex mero motu and to vacate the decision of the
Court of Appeals. See, e.g., Messer v. Town of Chapel Hill, 346 N.C. 259, 261, 485
S.E.2d 269, 270 (1997) (per curiam) (citing State ex rel. Utils. Comm’n v. S. Bell Tel.
& Tel. Co., 289 N.C. 286, 290, 221 S.E.2d 322, 324-25 (1976)).
The 2012 amendments enacted by the General Assembly in the wake of the
trial court’s order are readily comparable to the intervening legislation in McCluney.
The repeal of subsection 10.7(h) and the alteration of subsection 10.7(f) constitute
“material and substantial” changes to the provisions that the trial court found
unconstitutional. See McCluney, 280 N.C. at 405, 185 S.E.2d at 871. Accordingly, we
conclude that the questions originally in controversy between the parties are no
longer at issue and that this appeal is moot. We express no opinion on the legislation
now in effect because questions of its constitutionality are not before us. Id. at 407,
185 S.E.2d at 872. Our mandates in Leandro and Hoke County remain in full force
and effect.
We dismiss this appeal as moot ex mero motu and vacate the opinion of the
Court of Appeals. This case is remanded to the Court of Appeals with instructions to
vacate the 18 July 2011 order of Superior Court, Wake County.
APPEAL DISMISSED AS MOOT; COURT OF APPEALS OPINION
VACATED; AND REMANDED.
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