By Fred Moreno

Just before the holidays, the N.C. Court of Appeals issued its opinion in Tillett v. Town of Kill Devil Hills (17-433). The case involved a former judge who brought suit under The North Carolina Public Records Act to compel the Town of Kill Devil Hills to produce requested documents. The appellate court ruled that the trial court lacked subject matter jurisdiction when it required the town to produce two documents in controversy. The appellate court determined that the legislative intent of the word “jurisdiction” in N.C. Gen. Stat. § 132-9(a), meant that a jurisdictional rule, rather than an ordinary procedural rule, should be applied.

This is significant because jurisdictional requirements cannot be waived or excused by the court, affects a court’s power to hear the dispute, and renders any action taken by that court invalid. Furthermore, issues involving subject matter jurisdiction may be raised at any time.  It is undisputed that Mr. Tillett failed to initiate mediation after filing his civil action as was required under N.C. Gen. Stat. § 7A-38.3E(b) in the public records dispute. The appellate court determined that this was a jurisdictional requirement and vacated the trial court’s Order.

Fred Moreno is Chief Deputy Legal Counsel to the NC Real Estate Commission and co-chair of the Administrative Law Section’s CLE Committee.