Craig Ex Rel. Craig v. New Hanover County Board of Education

BRYANT, Judge,

concurring in part, dissenting in part.

I agree with the majority’s holding that the trial court’s denial of defendant’s motion for summary judgment as to plaintiff’s negligence claim must be reversed. However, because governmental immunity bars consideration of plaintiff’s negligence claim and plaintiff does not have an adequate state remedy, I would affirm the trial court’s denial of defendant’s motion for summary judgment as to plaintiff’s constitutional claims.

A claimant may bring a claim under the North Carolina Constitution “in the absence of an adequate state remedy” for the alleged wrong. Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992), cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992). Defendant claims that a state remedy is “adequate” even if it is barred by the defense of sovereign immunity. I disagree.

The majority decision relies primarily on the holding in Alt v. Parker, 112 N.C. App. 307, 435 S.E.2d 773 (1993). In Alt, the plaintiff’s constitutional due process claim and his claim for false imprisonment, which failed due to insufficiency of evidence, both originated from the same alleged wrongful conduct. Id. at 317-18, 435 S.E.2d at 778-79. This Court held that because the plaintiff’s false imprisonment claim, if successful, would have compensated him, he had an adequate state remedy and therefore could not bring the constitutional claim. Id. The tort action in Alt did not fail because the defense of sovereign immunity was raised, but the false imprisonment claim, failed because of insufficiency of evidence. Id. at 317, 435 S.E.2d at 778-79. In Alt this Court held that because the plaintiff’s tort claim *658would have compensated him if successful, the plaintiff had an “adequate state remedy.” Id.

In the case sub judice, the merits of plaintiff’s negligence claim are barred from consideration in our courts because of defendant’s sovereign immunity defense. Accordingly, plaintiff does not have an “adequate state remedy” and may assert a constitutional claim. Corum at 782, 413 S.E.2d at 289. In reaching this conclusion, I find our Court’s discussion in Sanders v. State Personnel Commission instructive:

Defendants argue that if an adequate state remedy exists, then a constitutional claim is barred by sovereign immunity. This. Court has, however, previously rejected precisely this contention: “[0]ur Supreme Court in Corum never links sovereign immunity and causes of action under the North Carolina Constitution in the manner defendants presume.” McClennahan v. N.C. Sch. of the Arts, 177 N.C. App. 806, 808, 177 N.C. App. 806, 630 S.E.2d 197, 199 (2006), disc. review denied, 361 N.C. 220, 642 S.E.2d 443 (2007). As McClennahan holds, the defense of sovereign immunity is distinct from a defense asserting that a specific constitutional cause of action is barred by the existence of other adequate state remedies.

Sanders v. State Pers. Comm’n, 183 N.C. App. 15, 17, 644 S.E.2d 10, 12 (2007). Here, plaintiff asserts a separate and distinct cause of action based on the following sections of the North Carolina State Constitution: Article I, Section 15; Article I, Section 19; and Article IX, Section 1. Article I, Sections 15 and 19 are part of the Declaration of Rights, which are rights intended to protect citizens from those who wield the power of the State. See Corum at 783, 413 S.E.2d at 290. Section 15 protects the “right to the privilege of education,” and Section 19 protects the right to “life, liberty, or property,” as well as the right to “equal protection of the laws.” N.C. Const, art. I, § 15; N.C. Const, art. I, § 19. Article IX, Section 1 states that “education shall forever be encouraged.” N.C. Const, art. IX, § 1.

In Corum, our Supreme Court stated “[t]he very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.” Corum at 783, 413 S.E.2d at 290. Given this purpose, a plaintiff must not be barred by the defense of sovereign immunity from asserting a common law claim and also prevented from asserting an alternative Constitutional *659claim. See Sanders at 17, 644 S.E.2d at 12 (“In sum, sovereign immunity is not available as a defense to a claim brought directly under the state constitution.”). A claim pursued under state law that does not have the possibility of succeeding on its own merits as a result of government immunity cannot be deemed “adequate.” See Corum at 785-86, 413 S.E.2d at 291 (“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.”). Moreover, “when there is a clash between these constitutional rights and sovereign immunity, the constitutional rights must prevail.” Id. at 786, 413 S.E.2d at 292.

Therefore, I respectfully dissent, as I would hold plaintiffs negligence claim is not an “adequate state remedy” and I would affirm the trial court’s denial of defendant’s motion for summary judgment as to plaintiff’s constitutional claims.