The Richmond Observer – North Carolina Court of Appeals Blocks ‘Heavyweight’ Discovery in Opportunity Scholarship Lawsuit

RALEIGH — The North Carolina Court of Appeals has issued new orders blocking all activity in a lawsuit challenging the state’s Opportunity Scholarship program. This includes the “onerous” discovery targeting several private schools.

“All further proceedings in the aforementioned matter, including discovery, are hereby stayed pending the Court’s decision on the motion to dismiss” the case, according to one of the two orders filed. tuesday. One responded to a request from state legislative leaders. The other is petitioning parents who support the scholarship program.

Tuesday’s orders in Kelly v. State of NC have followed a temporary suspension granted on March 24.

Scholarship advocates had complained about legal tactics employed by plaintiffs challenging OSP. The plaintiffs’ lawyers had engaged in a “thorough”, “tedious” and “voluminous third-party discovery of the religious beliefs and practices of dozens of private religious schools”, according to a court filing.

Discovery refers to the exchange of information between parties to a legal proceeding. It helps determine what evidence can be used in a trial.

The Court of Appeals must decide whether the lawsuit will stay with Wake County Superior Court Judge Bryan Collins. Appeals judges could instead transfer the case to a three-judge panel.

“This appeal is about who will decide whether or not to take away scholarships from thousands of low-income children in North Carolina: a single trial court judge or a panel of three judges,” according to a motion filed by Marie Miller of the Institute for Justice. IJ represents the parents who defend OSP.

“To prevent a single judge from shutting down an entire statewide program based on a mistaken belief that it is illegal, the North Carolina General Assembly has ruled that facial challenges of State laws “will be heard and determined by a three-judge panel,” Miller added. the Opportunity Scholarship Program “in its entirety.”

Discovery is not expected to resume until the Court of Appeal decides which court will pursue the case, Miller argued.

“[A]Calls like this about who should ‘hear and determine’ a case inherently encompass things like overseeing discovery,” Miller wrote. “So it makes sense to put the discovery process on hold while this Court decides who should oversee it. Second, preliminary questions regarding this case – including the legal sufficiency of the pleadings of many or all of the respondents’ claims as well as the extent of discovery – cannot be answered until the pending appeal has not determined which court should answer these questions.

“Most or all of the respondents’ ongoing voluminous discovery could prove unnecessary, wasting not only the time and resources of the parties, but also those of the dozens of private schools whose religious beliefs and practices are the primary target. of the respondents’ discovery,” Miller added.

The Opportunity Scholarship Program now helps more than 20,000 students from low-income families enroll in more than 500 private schools. With a larger scholarship available and expanded income eligibility in 2022-23, the program has seen approximately 9,500 new applicants for the upcoming school year. That’s according to the Parents for Educational Freedom group in North Carolina.

Whether the Court of Appeals will choose between Collins or a three-judge panel depends on the nature of the trial.

Lead plaintiff Tamika Walker Kelly is the head of the NC Association of Educators, the state affiliate of the National Education Association teachers’ union. Teachers’ unions have been among the most vocal opponents of school choice programs like Opportunity scholarships.

Kelly and his fellow critics argue that the Opportunity scholarship program is unconstitutional as applied to the circumstances of some plaintiffs in the case. Scholarship advocates counter that the lawsuit is not really an “as applied” constitutional challenge. In contrast, this amounts to a “face” challenge as it challenges the constitutionality of the scholarship law “on its face”.

State law requires that “facial” challenges be heard by three-judge panels appointed by the Chief Justice of the North Carolina Supreme Court.

The Opportunity scholarship program has already survived a facial challenge. In 2015, the state Supreme Court ruled, 4-3, that the program could continue.

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