10/04/09 — Duplin's funding case hits Court of Appeals

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Duplin's funding case hits Court of Appeals

By Catharin Shepard
Published in News on October 4, 2009 2:00 AM

RALEIGH -- Attorneys representing the Duplin County Board of Commissioners and the county's Board of Education made their arguments Thursday before the state Court of Appeals in a battle over how much money the school district should receive from the county to run the schools.

Jury instructions and a recent state Supreme Court decision figured heavily into the statements as attorney Neil Yarborough, representing the commissioners, sought to convince three appellate judges to overturn a September 2008 jury decision that awarded almost $4.8 million to Duplin County schools.

Two of four necessary jury instructions were not delivered properly during the Duplin case -- an unconstitutional breach of procedure, Yarborough told Appeals Court judges Richard Hunter, Ann Marie Calabria and Cheri Beasley.

"It's only half of the puzzle," he said. "How can they have a fair and deliberative process?"

The jury instructions did not present evidence in court about county funding or county policy, he said. Yarborough compared the case to a similar lawsuit in Beaufort County, one that the state Supreme Court later remanded.

However, based on court transcripts, Yarborough did not object to the jury instructions when they were made, school board attorney Richard Schwartz said.

"There was no attempt by the defendants to put in any evidence," he said.

Attorney Brian Shaw, also representing the Duplin County Board of Education, countered Yarborough's ar-gument by comparing the language of the jury instructions in the Duplin County and Beaufort County cases.

The wording in the Duplin County case was "clearly more restrictive" than the language that was found to be too broad in the Beaufort County case, Shaw said.

Yarborough also referenced a stipulation from the Beaufort County case that the Beaufort County Board of Commissioners had the money to pay any amount awarded by the jury during that lawsuit.

"There was no such stipulation in Duplin," he said.

But the stipulation in the Beaufort County case could be interpreted in a different way, Schwartz said.

The language could instead mean that the commissioners have the authority to raise taxes to pay for the amount awarded to the school system, he told the judges.

Yarborough asked the judges to take the opportunity to "elaborate on the Supreme Court's decision" in the Beaufort County case, but Hunter questioned the request.

"Why wouldn't we just send it back for a new trial?" he asked.

The Court of Appeals does not have the same jurisdiction or mandate as the state Supreme Court, Hunter said.

And although the Beaufort County case provided the state Supreme Court with an opportunity to address a change in policy that might affect future cases, it's unlikely the Duplin County lawsuit will give the same court a similar opportunity, Shaw said.

Yarborough argued against the point in his rebuttal.

"I don't think you should presume how the Supreme Court would choose to exercise their jurisdiction," he said.

Hunter again pointed out the limitations of the appellate court.

"I am troubled over our jurisdiction to do this," he said.

"I do believe you have the authority, and perhaps even, given the Supreme Court decision, the mandate to send it back down," Yarbor-ough said in response.

Hunter's concern was doing what was best for the public interest, he said.

"Is it better in the public interest that we remand this case, or do we let it linger? As I understand it, the money hasn't gotten to the kids yet," Hunter said.

A decision from the court could be five or six months away. But if the court does not find in the commissioners' favor, Yarborough would be willing to take the case before the state Supreme Court, he said.

But for now, "we just sit and wait," Yarborough said.

In the best case scenario for the Board of Education, the judges will choose to uphold the jury verdict, Shaw said.

"We're pleased with the way the arguments went," he said.