The State of North Carolina has filed its response to a lawsuit that the News & Record and three other newspapers have brought against the state and Guilford County.
The state’s legal filing with Wake County Superior Court calls for the court to dismiss the lawsuit on multiple grounds including the warrantless nature of the charges and the applicability of the doctrine of sovereign immunity, which protects the state from lawsuits such as the one brought by the newspapers over a change in public notice law.
In June, the News & Record, along with The High Point Enterprise, The Carolina Peacemaker and the Jamestown News, filed the suit against the state and against Guilford County after Guilford County began implementing new public notice practices that were allowed by a change in state law last year.
Before that change, North Carolina law required that many types of public notices – such as those for rezonings, tax liens, foreclosure and government meeting times – be advertised in newspapers with paid subscribers.
Under the new model, however – which allows Guilford County a legal exemption from the requirement as part of a pilot program – the county’s public notices are posted on the county’s website rather than printed in the newspapers. The move saves taxpayers money and provides a revenue stream for Guilford County. However, the News & Record and other paid circulation newspapers that have benefited from a monopoly for over a century don’t like seeing that revenue stream from public notices evaporate – especially when those print publications are facing other well known financial challenges.
The lawsuit filed against the state and the county claims that the state passed an unconstitutional local act that violated the state’s equal protection and freedom of the press laws. The state’s response, from the North Carolina attorney general’s office, denies the key accusations made in the lawsuit, but it does affirm many of the facts regarding the case.
Guilford County Attorney Mark Payne, who will play a role in the defense against the lawsuit, since the county is a co-defendant, said recently that the dispute was largely one over legal principles, since both sides agree on most of the facts of the matter.
The state’s response also claims that the General Assembly, which passed the law, should not be subject to the legal action from the newspapers.
“The State pleads sovereign immunity in bar of Plaintiffs’ claims and prayers for relief seeking actual compensatory damages,” the response reads, “including but not limited to the alleged lost profits and fair market value. Further, the Court lacks personal and/or subject matter jurisdiction over all claims against the State that are subject to sovereign immunity.”
The doctrine of sovereign immunity is a legal principal, originally from English common law, that holds that the sovereign – in this case the state – cannot be held civilly liable for actions carried out in the course of its duties.
The state’s response therefore calls into question the “justiciability” of the case – that is, it claims the court would be overstepping its bounds by adjudicating the matter.
It reads: “The State pleads the doctrines of nonjusticiability, separation of powers and political question as a defense in that Plaintiffs’ claims would improperly involve the Court in matters committed to the legislative branch including, without limitation, the ability of the General Assembly to devise pilot programs, and public policy determinations about wisdom of one method of giving legal notice as compared to another.”
The state’s response also brings in a host of other legal defenses that it claims makes the newspapers’ suit baseless. It asks the court to declare that the newspapers should recover nothing from the state and that the legislation is valid.
Payne said this week that the case seems likely to be heard by a three-judge panel rather than a single judge in Wake County Superior Court.
“We’re suggesting it and the other side is not objecting,” Payne said.
He said a three-judge panel is called for when the challenge is to “the constitutionality of a state law on its face.”
In cases where the application of a state law, but not its constitutional legitimacy, is called into question, the case would go before a single judge.
Payne said he and his office have a good working relationship with the attorneys representing the newspapers: Amanda Martin, the attorney for the North Carolina Press Association, and Bob Orr, who’s served on the North Carolina Supreme Court.
“The two attorney’s for the plaintiff are good attorneys,” Payne said. “We’ve talked a lot before about the process and they’ve been very upfront with us.”
In the meantime, Guilford County continues to put its public notices on the website rather than in the newspapers.
Recently, the News & Record informed Guilford County that it would not run ads from the county that announced the transition of public notices from newspapers to the county’s website. One of the requirements of the new public notice law is that Guilford County run an ad announcing the new method of public notice at least once a month for a year.
County officials say that, when the News & Record refused to continue running that ad, the county presented it to The High Point Enterprise, which is running it. Since that’s a paid circulation newspaper within the county, it meets the requirements.
Last month, Chairman of the Guilford County Board of Commissioners Alan Branson called the paper’s refusal to run the notice “childish.”
Guilford County Clerk to the Board Robin Keller said this week that the county is waiting for the outcome of the lawsuit before hiring an additional staff person to handle the coming business from private parties as well as from the towns and cities that want to participate.
“We’re in a holding pattern right now,” Keller said of the county’s plans to expand the reach of its program.
The big financial blow facing the News & Record and other area papers isn’t the loss of the county’s notice business, but is also the expected loss of other revenue once the county takes over the posting of legal notices from attorneys and other private parties. Guilford County plans to begin running the public notices for cities and towns across the county, as well as for private entities such as attorneys and other citizens who are required by law to post notices for various legal matters. The new legislation permits the 13 municipalities in Guilford County to use the county’s new service for their announcements.
The ads posted for private-sector parties on Guilford County’s website will cost $100 or $450, depending on the type of ad.
Guilford County will get $10 for each ad from other local governments participating in the program, which means those towns and cities will see savings in their advertising costs just as Guilford County has.
The law doesn’t require anyone to advertise on the Guilford County website but instead simply allows them that option. Rather than filing the lawsuit, another option the papers had was lowering their rates in an effort to win the business in free market competition.
