Cannon v. N.C. State Board of Education

McCRODDEN, Judge. In determining whether the trial court erred in finding plaintiffs’ claim moot, we must consider whether the legislature’s enactment of legislation cured action, i.e., the merger of the Durham schools systems, that the trial court had previously ruled unconstitutional. We find that it did not, and we reverse the trial court. [401] In their original complaint, plaintiffs alleged, among other things that they would lose “substantial voting rights” as a result of the merger, that the enabling statute unconstitutionally delegated legislative power to county commissioners, that the statute contained a funding mandate that was arbitrary and capricious and denied plaintiffs due process and equal protection of the laws, and that the merger plan was in conflict with N.C. Gen. Stat. §§ 115C-35 and -37 (1991). In its judgment, the trial court found that the merger was unlawful because of “its conflict with each of N.C. Gen. Stat. 115C-35, 153A-76, Chapter 657 of the Session Laws.of 1975, Chapter 249 of the Session Laws of 1977, and the following provisions of the North Carolina Constitution: Article II, Sec. 1; Article I, Sec. 19; and Article IX.” Chapter 767 of the 1991 General Assembly Session Laws provides: Sec. 2. Article 7 of Chapter 115C of the General Statutes is amended by adding a new section to read: “§ 115C-68.3. Validation of plans of consolidation and merger. All plans for consolidation and merger of school administrative units entered into between June 9, 1969, and May 26, 1992, under G.S. 115C-67,'115C-68.1, 115C-68.2, former G.S. 115-74.1, or under any local act authorizing such mergers, are ratified and considered to have been adopted by act of the General Assembly. This Article prevails over G.S. 153A-76(4).” Sec. 3. For the purpose of clarification, G.S. 115C-67(3)b reads as rewritten: “b.... To the extent that the method [detailed in the proposed merger plan] conflicts with G.S. 115C-35, G.S. 115C-37, or with any local act concerning any of the units being merged and consolidated, the plan of merger and consolidation shall prevail.” 1991 N.C. Sess. Laws ch. 767, §§ 2-3. Assuming, without deciding, that the curative act was effective to ratify the merger as if it had been accomplished directly by act of the General Assembly, the determination that the merger violated N.C.G.S. §§ 115C-35, 153A-76, the local acts, and Article II, Section 1, i.e., that it was the product of improperly delegated legislative authority, would, indeed, be moot. The trial court’s determination that the merger violates Article I, section 19 and Article IX, however, is [402] distinct. Section 19 of Article I guarantees that: “No person shall be ... deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws . .. .” N.C. Const. art. I, § 19. Article IX deals with, among other things, uniform systems of schools. N.C. Const. art. IX, § 2. It is important to note that defendants have not cross-assigned as error, pursuant to N.C. R. App. P. 10, the original conclusion of the trial court that the Durham merger violated these two constitutional provisions. It is also noteworthy that the Supreme Court failed to address plaintiffs’ constitutional challenges when the case was before it. “[A] retrospective law, curing defects in acts that have been done, or authorizing or confirming the exercise of powers, is valid in those cases in which the Legislature originally had authority to confer the power or to authorize the act.” Edwards v. Comrs., 183 N.C. 58, 60, 110 S.E. 600, 601 (1922). The legislature has no power to enact a law in conflict with the Constitution. See Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787). In this case, the General Assembly could not ratify the merger because, under the previous, uncontested ruling of the trial court, the merger was unconstitutional. Contrary to the assertion of the dissent, our primary focus is not on the first trial court order. Indeed, as we have pointed out, the parties to this appeal did not present the constitutional issues revolving around that order, and our opinion in no way determines the issue of the first appeal, i.e., the constitutionality of the school merger in Durham County. Our holding is simply that the General Assembly cannot, by enacting legislation, make constitutional that which a court has ruled unconstitutional. We, therefore, hold that because, under the ruling of the first trial court, the Durham merger plan violated the North Carolina Constitution, Chapter 767 was ineffective as a curative statute vis a vis the Durham school merger. We reverse the trial court’s determination of mootness. Reversed. Judge LEWIS concurs. Judge Wynn dissents. Opinion written and concurred in and dissent written prior to 16 December 1994.