File No. 11-CVS-1301

BRUNSWICK County

Name Of Plaintiff The Royal Oak Concerned Citizens Association,

et al.

Name Of Defendant BRUNSWICK COUNTY

Name And Address Of Attorney Or Party, If Not Represented

Julie B. Bradburn, Esquire, NCSB #31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville Street; Suite 2100 Raleigh, NC 27602

Film No.

In The General Court Of Justice ❑ District Court ® Superior Court

Name Of Firm

Womble Carlyle Sandridge & Rice, PLLC

MOTION

Type of Motion (For each motion, enter code

for Type of Motion from list on reverse side; if OTHR,

describe motion)

By (Identify Party) Against (Identify Party)

Motion to Reconsider (OTHR) ❑ All BRUNSWICK COUNTY ❑ All Plaintiff

❑ All ❑ A11

❑ All ❑ All

❑ All ❑ All

❑ All ❑ All

❑ All ❑ All

Septembers 2012 Date Signature Of Attorney/Party

NOTE: All papers filed in civil actions, special proceedings and estates shall include as the first page of the filing a cover sheet summarizing the critical elements of the filing in a format prescribed by the Administrative office the Courts. The Clerk of Superior Court shall require a party to refile any paper which does not include the required cover sheet.

AOC-CV-752

Rev. 11/96 (Over)

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

COUNTY OF BRUNSWICK

11-CVS-1301

THE ROYAL OAK CONCERNED CITIZENS ASSOCIATION, CURTIS MCMILLIAN and DENNIS MCMILLIAN,

Plaintiffs,

\FPM

BRUNSWICK COUNTY,

Defendant.

s 0

1

NOW COMES Defendant Brunswick County, by and through counsel, and pursuant to

Rules 52(b) and 54(b) of the North Carolina Rules of Civil Procedure, and hereby moves for

reconsideration of and/or amendment to the Decision and Order Denying in Part and Granting in

Part Defendant's Motion to Dismiss ("the Order") of the Honorable Thomas H. Lock, entered in

Brunswick County Superior Court on September 13, 2012.

1. This motion asks the Court to reconsider the portion of its Order denying

Defendant's Motion to Dismiss Plaintiffs' claim under the Fair Housing Act. Defendant

respectfully submits that the Court's determination that the North Carolina Fair Housing Act

does not require exhaustion of administrative remedies constitutes a clear error of law. (Exh. 1.)

2. The main issue before the Court was whether the Fair Housing Act required

Plaintiffs to first file a claim with the North Carolina Human Relations Commission prior to

filing a civil suit in Superior Court; in short, whether the Act contains an exhaustion of

administrative remedies requirement. If an exhaustion requirement exists, subject matter is

lacking, as Plaintiffs concede they did not file with the Commission prior to filing this lawsuit.

3. To support their assertion that the Act contains no exhaustion requirement,

Plaintiffs provided the Court with an informal opinion letter two sentences in length—signed

by the lawyer for the North Carolina Human Relations Commission stating that the Act does not

require exhaustion of remedies. The Order expressly gives deference to this letter.

4. This letter, which omitted any reasoning, analysis or context, was provided to

Defendant on late Thursday afternoon before the Monday hearing in Brunswick County.

Defendant objected to its subsequent inability to press the basis for, and validity of, this opinion.

The validity of this opinion letter is of critical importance, because it was relied on by Plaintiffs

to meet their burden of proving the fundamental requirement of subject matter jurisdiction.

5. Under both North Carolina Supreme Court and United States Supreme Court

authority, deference is not due to an unreasoned and unsupported opinion of an agency

purporting to interpret a statute, such as the letter presented to the Court by Plaintiffs.

6. Further, the letter is contrary to the position the Commission took (then called a

Council) with the legislature and to the statements made by legislators when the statute was

amended in 1985.

The Council's lawyer explained the Act's "Right to Sue" provision:

"[Representative] asked for an explanation of a `Right to Sue Letter.' `Are you giving people letters and telling them to go out and sue everybody?' He asked.

"[Counsel] answered that a `Right to Sue Letter' does not tell people to go out and sue but states that reconciliation has been attempted and failed and, therefore, the complainant may go to court if he desires to."

Legislators also explained directly:

"[a] complainant could not go to court, on a Housing Discrimination complaint until all administrative procedures for reconciliation had been exhausted."

(Exh. 2, Affid. of Jane Basnight, Legislative History of Fair Housing Act.)

7. The legislative history and the text of the statute show the legislative intent to

encourage reconciliation of the parties to a claim by requiring that a complainant first file a

complaint with the Commission.

8. The Order denying Defendant's Motion to Dismiss, which was drafted by

Plaintiffs' counsel, and adopted by the Court, also reasoned that the use of the word "may" in the

Act is clear in its meaning that a complainant can choose either to file a complaint at the

Commission or commence a civil action. However, the North Carolina Court of Appeals has

concluded the word "may" is capable of more than one meaning when read alone. If all

provisions of the Fair Housing Act are read together and given meaning (particularly the "right-

to-sue" and "enabling" provisions), the statute is read to contain an exhaustion requirement.

9. To the extent the Court considered and gave weight to the Florida Fair Housing

statute and the decision in Milsap v. Cornerstone Residential Management, 2010 U.S. Dist.

LEXIS 8031 (S.D. Fla. 2010), Plaintiffs' assertion that the statute contained a right-to-sue

provision was incorrect. (See Exh. 3.) A facial examination of the statute shows that it is not

comparable to North Carolina's Fair Housing Act and thus, reliance on Milsap is erroneous.

10. Pursuant to Rule 54(b), the Court may revise the Order at any time before the

entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Similarly, under Rule 52(b) a Court may amend its previous judgment and findings.

11. Defendant respectfully asks the Court to reconsider its decision in this case and

enter a revised or amended Order dismissing Plaintiffs' claim under the North Carolina Fair

Housing Act for lack of subject matter jurisdiction on grounds that the Act contains a

3

requirement that a complainant exhaust his administrative remedies prior to filing suit in

Superior Court, and this was admittedly not done in the instant matter.

Respectfully submitted this the 27th day of September, 2012.

WOMBLE CARLYLE SANDRIDGE & RICE A Limited Liability Partnership

/ ( I 2 /

/ p

Jacquefi'ne Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, LLP 150 Fayetteville St., Suite 2100 P. 0. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: j bradburn@wcsr. corn Attorneys for Defendant Brunswick County

I hereby certify that on September 27, 2012, I served a copy of the foregoing document entitled MOTION TO RECONSIDER DENIAL OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S NORTH CAROLINA FAIR HOUSING ACT CLAIM upon all parties to this action by depositing the same with the United States Postal Service, postage prepaid, properly addressed to their attorneys of record as follows:

Elizabeth McLaughlin Haddix, Esquire Peter Gilbert, Esquire UNC Center for Civil Rights 101 East Weaver Street Campus Box 3382 Carrboro, NC 27510

Raymond E. Owens, Jr., Esquire Higgins & Owens, PLLC 5925 Carnegie Blvd Ste 530 Charlotte, NC 28209

Jack Holtzman, Esquire North Carolina Fair Housing

Project, Legal Aid of NC Post Office Box 28068 Raleigh, NC 27611

Attorneys for Plaintiffs

Jacquelte Terry Hughes, NCSB No. 25884 Julie B. Bradburn, NCSB No. 31412 Womble Carlyle Sandridge & Rice, PLLC 150 Fayetteville Street, Ste. 2100 P. 0. Box 831 Raleigh, NC 27602 Telephone: (919) 755-2169 Fax: (919) 755-6176 Email: jbradburnwcsr.com Attorneys for Defendant Brunswick County

5

WCSR 7423274v1

THE

IA

ROYAL

MCMILLN and

IN THE pGENERAL COURT SUPERIOR COURT DIVISION

,içIf I' i'P •b

M D1 W D101 1 ' 4E ItI!tkISki V.

THIS MATTER comes before the Court on Defendant's Motion to Dismiss Plaintiffs'

Third Amended Complaint, pursuant to Rules 12(b)(l) and 12(b)(6) of the North Carolina Rules

of Civil Procedure, in which Defendant has asserted that subject matter jurisdiction is lacking,

and that Plaintiffs have failed to state a claim under which relief can be granted.

Defendant's Rule 12(b)(1) argument has three components. First, Defendant challenges

Plaintiff Royal Oak Concerned Citizens' Association's (ROCCA) standing. Second, Defendant

argues for dismissal of Plaintiffs' claims as moot or unripe. Finally, Defendant argues that the

Court should dismiss the Fair Housing Act claim pursuant to Rule 12(b)(1) because Plaintiffs

have not exhausted their administrative remedies. Defendant also argues that Plaintiffs' Equal

Protection Claim under the North Carolina Constitution fails because Plaintiffs "have not alleged

or established that they lack an adequate state remedy" and "fail to allege facts stating a viable

equal protection claim." The Court considers the arguments in turn.

Plaintiff ROCCA is an unincorporated association that exists for a nonprofit purpose.

Therefore the standing requirements stated in N.C. Gen. Stat. § 59B8(b) applies. Plaintiffs'

allegations in both their Third Amended Complaint and the Affidavit of Lewis Dozier establish

ki IS-,J

p :'_j

that Plaintiff ROCCA has associational standing as an unincorporated nonprofit association, and

meets Rule 9(a)'s requirement that "[a]ny party suing in any representative capacity shall make

an affirmative averment showing his capacity and authority to sue." Therefore, Defendant's

Motion to Dismiss Plaintiff ROCCA under Rule 12(b)(1) for lack of standing is DENIED.

The Complaint alleges a history of racial discrimination including, but not limited to the

decision to site the landfill. The justiciability of these broader claims does not depend upon the

justiciability of the landfill itself. Plaintiffs' claim under § 153A-136(c) goes to the County's

actions or failure to act as required by statute which is justiciable with no further process. Greene

Citizens For Responsible Growth, Inc. v. Greene County Bd. of Com'rs, 143 N.C. App, 702, 706,

547 S.E.2d 480, 483 (2001). Defendant's Motion to Dismiss under Rule 12(b)(1) and Rule

12(b)(6), Plaintiffs' N.C. Gen. Stat § 1 53A- 136(c) claim, or any other claim, as non-justiciable,

I

North Carolina's Fair Housing Act (NCFHA) does not require that its administrative

process be exhausted prior to any aggrieved party commencing a private action in civil court.

The NCFHA provides an administrative remedy, but does not prohibit a party from immediately

filing such a civil action: "[a]ny person who claims to have been injured by an unlawful

discriminatory housing practice or who reasonably believes that he will be irrevocably injured by

an unlawful discriminatory housing practice may file a complaint with the North Carolina

Human Relations Commission." N.C. Gen. Stat. § 41A-7(a) (2007) (emphasis added). The clear

meaning of the above-referenced statutory language indicates that a party may file an

administrative complaint and pursue administrative remedies or, alternatively, commence a civil

action.

Although the language of the statute is clear, the Court notes that the record includes a

sworn statement from Agency Counsel for the North Carolina Human Relations Commission

(NCHRC), the agency charged with enforcing the NCHFA, stating that no administrative

exhaustion is necessary in order for any person to file a civil suit under the NCFHA. Were any

such statutory interpretation necessary, this Court would give reasonable deference to the

NCHRC's opinion and similarly find that administrative exhaustion is not required under the

Act. Defendant's Motion to Dismiss Plaintiffs' NCFHA claims under Rule 12(b)(1) and

12(b)(6) is therefore DENIED.

It is well-establish under North Carolina law that a plaintiff may bring a direct claim

under our state Constitution only if she has alleged and established that she has no other adequate

remedy under state law. Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428-9 (2010).

This Court holds that the North Carolina Fair Housing Act provides an adequate remedy for all

of Plaintiffs' discrimination claims, and therefore Plaintiffs' Equal Protection claim must be

dismissed. Thus Defendant's Motion to Dismiss Plaintiffs' Equal Protection claim is

[eJ 1Ih1 V 1

Defendant's remaining arguments for dismissal of Plaintiffs' claims in this matter under

Rule 12(b) are without merit and do not provide any basis for dismissal of Plaintiffs' civil action.

1 3 I I ti al :'Li) 1 0 al a PJ1

1. Defendant's Motion to Dismiss Plaintiffs' Third Claim for Relief (under Art. 1,

Sec. 19 of the North Carolina Constitution) is GRANTED under Rule 12(b)(6).

2. Defendant's Motion to Dismiss Plaintiff ROCCA under Rule 12(b)(1) for lack of

rTr.IrjEInalurnJ

3

3. Defendant's Motion to Dismiss Plaintiffs' state Fair Housing Act claims under

Rule 12(b)(1) and Rule 12(b)(6) is DENIED.

4. Defendant's Motion to Dismiss under Rule 12(b)(1) and Rule 12(b)(6), Plaintiffs'

N.C. Gen. Stat § 153A-136(c) claim, or any other claim, as non-justiciable, moot and unripe is

This the

th day of Auj$'t, 2012.

The HduIOri6le Thth Superior Court Judge

NORTH CAROLINA GENERAL ASSEMBLY

Legislative Services Office

George R. Hall, Legislative Services Officer

Research Division 0. Walker Reagan 300 N. Salisbury Street, Suite 545

Director

Raleigh, NC 27603-5925 Tel. 919-733-2578 Fax 919-715-5460

I, Jane W. Basnight, am a Library Research Assistant in the North Carolina General Assembly Legislative Library.

The attached documents are true copies of records contained in the Legislative Library, said documents being:

® Minutes from the May 29, 1985 meeting of the House Committee on Housing ® Bill Analysis for the 15t edition of House Bill 1175 (Fair Housing Complaints), Senate

Judiciary II Committee, May 14, 2003

Signed this 27th day of September 2012.

Sa Jane W. Basnight Legislative Library Research Assistant

North Carolina, Wake County

This is to certify that on the 27 th day of September 2012, Jane W. Basnight, with whom I am personally acquainted, executed the foregoing instrument before me. Being duly sworn by me, she has made oath that the statements in the foregoing instrument are true.

~ .r My commission expires "fir

Notary Public QTA y

AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER

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HOUSE BILL 1175: ftj FairHousing is

cr ' wow qu r

BILL ANALYSIS

Committee : Senate Judiciary II Introduced by: Rep. Michaux Date: May 14, 2003 Summary by: Kory J. Goldsmith Version: 1 ST Edition . Committee Counsel

SUMMARY: H1175 allows fair housing organizations that provide assistance to persons who believe they have experienced discriminatory housing practices to file complaints with the North Carolina Human Relations Commission.

C1JRRENT LAW: Both Federal law (Chapter 42 of the Federal Code) and State law (Chapter 41A of the General Statutes ) prohibits unlawful discriminatory housing practices against persons based upon their race, color , religion , sex, national origin, handicapping condition , or familial status. Discriminatory housing practices include:

• Refusal to engage in a real estate transaction.

• Refusing to permit reasonable accommodations to be made at the expense of a handicapped person.

® Refusing to negotiate areal ~ estate transaction.

o Representing that real estate is not available for inspection, sale, or rental.

• Discriminating against a protected person or class of persons in the making of a loan for the purchase or refinance of residential real estate.

o Inducing others to enter into real estate transactions by representing that a changes has occurred or is going to occur in the composition of block or neighborhood.

A person who believes he or she has been injured by a discriminatory housing practice , or who believes he or she will be injured by a discriminatory housing practice may file a complaint with the North Carolina Human Relations Commission . Upon receipt of a complaint , the Commission must begin an. investigation to determine whether there are reasonable grounds to believe that an unlawful discriminatory housing practice has occurred or is about to occur. The Commission shall commence a conciliation process if it finds there are reasonable grounds to believe a discriminatory practice has occurred or is about to occur. If the conciliation process is not successful, the complaining party may request and the Commission must issue a right to sue letter that allows the complaining party to file a civil action in federal court.

BILL ANALYSIS: HB 1175 amends subsection (a) of G.S. 41A-7 to permit fair housing organizations that provide assistance to persons who believe they have been injured by a discriminatory housing practice to file a complaint with the North Carolina Human Relations Commission . The bill does not define the term "fair housing organization ", nor is that term defined in Federal law or regulation. It also is not clear whether the fair housing organization is filing the complaint on behalf of the person who believes they have been discriminated against, or for injuries the fair housing organization has received by providing assistance to the person who has been discriminated against.

Hl 175-SMRC-002

Legislative Services Office North Carolina General Assembly Research Division, 733-2578

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TITLE 44. CIVIL RIGHTS (Chs. 760-765) CHAPTER 760. DISCRIMINATION IN THE TREATMENT OF PERSONS; MINORITY REPRESENTATION

PART II. FAIR HOUSING ACT

Fla. Stat. § 760.34 (2012)

§ 760.34. Enforcement

(1) Any person who claims to have been injured by a discriminatory housing practice or who believes that he or she will be injured by a discriminatory housing practice that is about to occur may file a complaint with the commission. Complaints shall be in writing and shall contain such information and be in such form as the commission requires. Upon receipt of such a complaint, the commission shall furnish a copy to the person or persons who allegedly committed the discriminatory housing practice or are about to commit the alleged discriminatory housing practice. Within 100 days after receiving a complaint, or within 100 days after the expiration of any period of reference under subsection (3), the commission shall investigate the complaint and give notice in writing to the person aggrieved whether it intends to re-solve it. If the commission decides to resolve the complaint, it shall proceed to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion. Insofar as possible, conciliation meetings shall be held in the cities or other localities where the discriminatory housing practices allegedly occurred. Nothing said or done in the course of such informal endeavors may be made public or used as evidence in a subsequent proceeding under ss. 760.20-760.37 without the written consent of the persons concerned. Any employee of the commission who makes public any information in violation of this provision is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) A complaint under subsection (1) must be filed within 1 year after the alleged discriminatory housing practice occurred. The complaint must be in writing and shall state the facts upon which the allegations of a discriminatory housing practice are based. A complaint may be reasonably and fairly amended at any time. A respondent may file an answer to the complaint against him or her and, with the leave of the commission, which shall be granted whenever it would be reasonable and fair to do so, may amend his or her answer at any time. Both complaint and answer shall be verified.

(3) Wherever a local fair housing law provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in ss. 760.20-760.37, the commission shall notify the appropriate local agency of any complaint filed under ss. 760.20-760.37 which appears to constitute a violation of the local fair housing law, and the commission shall take no further action with respect to such complaint if the local law enforcement official has, within 30 days from the date the alleged offense was brought to his or her attention, com-menced proceedings in the matter. In no event shall the commission take further action unless it certifies that in its judgment, under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require such action.

(4) If, within 180 days after a complaint is filed with the commission or within 180 days after expiration of any pe-riod of reference under subsection (3), the commission has been unable to obtain voluntary compliance with ss. 760.20-760.37, the person aggrieved may commence a civil action in any appropriate court against the respondent named in the complaint or petition for an administrative determination pursuant to s. 760.35 to enforce the rights granted or protected by ss. 760.20-760.37. If, as a result of its investigation under subsection (1), the commission finds there is reasonable cause to believe that a discriminatory housing practice has occurred, at the request of the person ag-grieved, the Attorney General shall bring an action in the name of the state on behalf of the aggrieved person to enforce the provisions of ss. 760.20-760.37.

(5) In any proceeding brought pursuant to this section or s. 760.35, the burden of proof is on the complainant.

(6) Whenever an action filed in court pursuant to this section or s. 760.35 comes to trial, the commission shall im-mediately terminate all efforts to obtain voluntary compliance.

(7) (a) The commission may institute a civil action in any appropriate court if it is unable to obtain voluntary com-pliance with ss. 760.20-760.37. The commission need not have petitioned for an administrative hearing or exhausted its administrative remedies prior to bringing a civil action.

(b) The court may impose the following fines for each violation of ss. 760.20-760.37:

1. Up to $ 10,000, if the respondent has not previously been found guilty of a violation of ss. 760.20-760.37.

2. Up to $ 25,000, if the respondent has been found guilty of one prior violation of ss. 760.20-760.37 within the preceding 5 years.

3. Up to $ 50,000, if the respondent has been found guilty of two or more violations of ss. 760.20-760.37 within the preceding 7 years.

In imposing a fine under this paragraph, the court shall consider the nature and circumstances of the violation, the degree of culpability, the history of prior violations of ss. 760.20-760.37, the financial circumstances of the respon-dent, and the goal of deterring future violations of ss. 760.20-760.37.

(c) The court shall award reasonable attorney's fees and costs to the commission in any action in which the commission prevails.

(8) Any local agency certified as substantially equivalent may institute a civil action in any appropriate court, in-cluding circuit court, if it is unable to obtain voluntary compliance with the local fair housing law. The agency need not have petitioned for an administrative hearing or exhausted its administrative remedies prior to bringing a civil action. The court may impose fines as provided in the local fair housing law.

HISTORY: SS. 9, 10, ch. 83-221; s. 7, ch. 89-321; s. 2, ch. 94-91; s. 418, ch. 96-406; s. 1793, ch. 97-102.