{
  "id": 12206248,
  "name": "TOWN OF BOONE, Plaintiff v. STATE OF NORTH CAROLINA, Defendant COUNTY OF WATAUGA, Intervenor-Defendant",
  "name_abbreviation": "Town of Boone v. State",
  "decision_date": "2015-11-05",
  "docket_number": "No. 93A15",
  "first_page": "420",
  "last_page": "422",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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          "page": "382-83"
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  "last_updated": "2023-07-14T20:54:29.404016+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "TOWN OF BOONE, Plaintiff v. STATE OF NORTH CAROLINA, Defendant COUNTY OF WATAUGA, Intervenor-Defendant"
    ],
    "opinions": [
      {
        "text": "ORDER\nThe State of North Carolina and the County of Watauga seek to appeal to this Court pursuant to N.C.G.S. \u00a7 7A-27(al). First, the State seeks to appeal two orders entered on 29 December 2014 by a three-judge panel of the Superior Court in Wake County, the first of which denied the State\u2019s and the County\u2019s motions to dismiss a challenge to Chapter 33 of the 2014 Session Laws, Act of June 26, 2014, ch. 33, 2013 N.C. Sess. Laws (Reg. Sess. 2014) 139 (the \u201cBoone Act\u201d), and the second of which issued a preliminary injunction enjoining any enforcement of the Boone Act. Next, the State and the County also seek to appeal the panel\u2019s 29 July 2015 order declaring that the Boone Act violates Article II, Section 24 of the North Carolina Constitution and entering summary judgment in favor of the Town of Boone.\nOn 31 March 2015, the Town filed a \u201cMotion to Dismiss Appeal\u201d of the December orders; the State filed a response on 10 April 2015. On 16 June 2015, the Town also filed a \u201cMotion to Supplement the Record on Appeal\u201d to include a Notice of Voluntary Dismissal Without Prejudice of Count 2 of the Town\u2019s complaint; the State filed a response to this motion on 18 June 2015. In addition, on 19 August 2015, the Town of Boone filed a \u201cMotion to Supplement the Record with Final Judgment of Three-Judge Panel and to Expedite Settlement of the Record on Appeal\u201d and a \u201cMotion to Submit the Case for Oral Argument Under the Summary Judgment Standard.\u201d The State filed responses to these 19 August 2015 motions on 24 August 2015. Oral arguments were held before this Court on 6 October 2015.\nAccording to the plain text of the statute under which appeal has been sought, N.C.G.S. \u00a7 7A-27(a1) (2014), appeal of right lies directly to this Court only \u201cfrom [an] order or judgment of a court, either final or interl\u00f3cutoiy, that holds that an act of the General Assembly is facially\u201d unconstitutional. (Emphasis added.) Here, however, neither December order included such a holding: The order denying the State\u2019s and the County\u2019s motions to dismiss did not provide the panel\u2019s rationale for denying the motions, and the order issuing the preliminary injunction concluded that the Town \u201chas shown a likelihood of success on the merits of its case.\u201d We therefore dismiss the State\u2019s appeal of the December 2014 orders with prejudice.\nBecause the State\u2019s appeal from the December orders of the panel was not statutorily authorized, that appeal did not divest the three-judge panel of jurisdiction to enter the July 2015 order granting summary judgment in favor of the Town of Boone. See, e.g., Veazey v. City of Durham, 231 N.C. 357, 363-64, 57 S.E.2d 377, 382-83 (1950); cf. N.C.G.S. \u00a7 1-294 (2013) (stating that a \u201cperfected\u201d appeal \u201cstays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein\u201d). Unlike the December orders, the July order states that the Boone Act, which \u201crevo[ked] . . . the Town of Boone\u2019s power of extraterritorial jurisdiction ... is unconstitutional pursuant to the prohibition on local acts contained in Article II, Section 24 of the North Carolina Constitution.\u201d Therefore, the July order would appear to be appealable by right to this Court under N.C.G.S. \u00a7 7A-27(al). Nonetheless, our consideration of an appeal from the 29 July 2015 order would be premature at this time because, inter alia, the parties have yet to settle and file an appropriate record on appeal. Therefore, we dismiss the Town\u2019s motion to supplement the record, filed 19 August 2015, without prejudice to the parties\u2019 rights to perfect an appeal of the July order, to settle and file the record on appeal, and to file appropriate briefs in accordance with the North Carolina Rules of Appellate Procedure. The time periods within which to proceed with the record on appeal shall begin on the date of this order.\nThe Town of Boone\u2019s 31 March 2015 \u201cMotion to Dismiss Appeal\u201d is ALLOWED and the appeal from the orders entered on 29 December 2014 is DISMISSED with prejudice; the portion of the Town\u2019s 19 August 2015 motion which seeks to supplement the record with the final judgment of the three-judge panel is DISMISSED without prejudice to the parties\u2019 rights to perfect an appeal of the panel\u2019s July order in accordance with this order; the Town\u2019s 16 June 2015 \u201cMotion to Supplement the Record on Appeal,\u201d the portion of its 19 August 2015 motion which seeks to expedite settlement of the record on appeal, and its 19 August 2015 \u201cMotion to Submit the Case for Oral Argument Under the Summary Judgment Standard\u201d are DISMISSED AS MOOT.\nBy order of the Court in Conference, this 5th day of November, 2015.\ns/Ervin. J.\nFor the Court\nWITNESS my hand and the seal of the Supreme Court of North Carolina, this the 5th day of November, 2015.\nCHRISTIE S. CAMERON ROEDER Clerk of the Supreme Court\ns/M.C. Hackney Assistant Clerk\n. Although these motions were included in a single filing by the Town, they are treated as separate motions and dealt with as such in this order.",
        "type": "majority",
        "author": "s/Ervin. J."
      }
    ],
    "attorneys": [],
    "corrections": "",
    "head_matter": "TOWN OF BOONE, Plaintiff v. STATE OF NORTH CAROLINA, Defendant COUNTY OF WATAUGA, Intervenor-Defendant\nFrom Wake County\nNo. 93A15\nAppeal and Error \u2014 constitutionality of an act of General Assembly \u2014 required holding \u2014 record on appeal\nAppeals from orders by a three-judge panel in Wake County concerning the constitutionality of the Boone Act were dismissed where two orders entered on 29 December 2014 did not hold that an act of the General Assembly was facially unconstitutional, as required by the plain text of the statute under which appeal was sought, N.C.G.S. \u00a7 7A-27(al) (2014). Appeal of a subsequent July order that was otherwise appealable by right under that statute was premature because the parties had not settled and filed an appropriate record on appeal."
  },
  "file_name": "0420-01",
  "first_page_order": 570,
  "last_page_order": 572
}