Historic case goes to court

Barring some unexpected development, what could be a historic case — historic both for Burke County and the state of North Carolina — will begin Monday in Burke County Superior Court.

The lawsuit's outcome could affect every taxpayer and every public-school student in Burke County.
The case is Burke County Board of Education vs. Burke County Board of Commissioners (09 CVS 1659).

The school board wants the court to decide how much money the county should provide "to maintain a system of free public schools." The board of education also wants the court to order the county commissioners to appropriate that sum to the schools. If the county can't provide the money from other sources, the court could order the commissioners to raise property taxes.

Neither Jon Jones, an attorney for the school system, nor Redmond Dill, an attorney for the county commissioners, saw any signs Friday that the lawsuit won't go to trial.

"I've heard nothing to the contrary," said Dill.

And Jones said that although discussions may continue right up until the court session begins at 10 a.m., it still looks like the case is going forward.

Dill confirmed that the county commissioners will ask for a jury trial — a request the judge almost certainly will approve, other lawyers told The News Herald.

Clerk of Court Mabel Lowman said her office summoned 100 potential jurors to be on hand at 1:30 p.m. She said 50-plus usually show up.

One of the first items of business before presiding Judge Robert C. Ervin will be the school board's motion for a change of venue to another county or, as an alternative, seating a jury of out-of-county residents. The school board's attorneys made the motion because they fear a local jury could be influenced by factors other than the evidence, including "potential vilification" in the community.

Both sides hired special attorneys to press their case.

The schools' special counsel is Schwartz and Shaw of Raleigh, a firm that specializes in education law.

The county commissioners hired Larry McMahon Jr. of Byrd Byrd Ervin McMahon and Denton in Morganton as their special counsel.

This will be an unusual case in several respects. The lawsuit is permitted under a rarely invoked state law, Chapter 115C-431, that specifies how to resolve disputes between school boards and county commissioners. Shaw and his partner represented the Duplin County Board of Education in a similar 2008 lawsuit. Shaw said it was only the second such case since the law requiring mediation went into effect in the 1990s.

Outside attorneys told The News Herald it's unusual for the legislature to give an N.C. court or jury the power to pre-empt an elected body's duties — in this case, the commissioners' responsibility for appropriating local funds for the public schools.

The statute states: "When the facts have been found, the court shall give judgment ordering the board of county commissioners to appropriate a sum certain to the local school administrative unit, and to levy such taxes on property as may be necessary to make up this sum when added to other revenues available for the purpose."

The Duplin County Board of Education won its case after a week-long session. The court ordered the Duplin County Board of Commissioners to give the Duplin County Schools an additional $4,795,784 for 2008-09. The Duplin schools have yet to see the money, because the commissioners appealed the verdict. The case remains in the N.C. Court of Appeals.

That case was costly in another sense. From June through August 2008, the two sides spent nearly $500,000 for legal fees and lawyers, including $325,500 to Schwartz and Shaw on the schools' side and $48,000 to Phillips and Phillips on the county's.

Monday's case will be heard at the Burke County Courthouse, 201 S. Green St.

Superior Court usually opens at 10 a.m., recesses for lunch around 12:30 p.m., resumes at 2 p.m. and continues until 5 p.m. or later.

The judge probably will begin Monday's session by hearing motions, including the request for a change of venue. If the judge grants that motion, the case could be moved elsewhere in District 25 (Burke, Caldwell and Catawba counties) or outside the district altogether.

One lawyer told The News Herald it would be unusual, though not unprecedented, for the judge to summon an out-of-county jury.

If the judge decides to proceed here in Burke County with a local jury, selection of its 12 members will begin Monday afternoon.

This Superior Court session was supposed to be for criminal cases. Because of the state statute, the school-county case takes precedence. Lowman said the district attorney will have to determine how to handle the more than 102 criminal cases scheduled for this session. How long the school-county case goes on will affect their scheduling and disposition.