Atzchment ( FE ‘STATE OF NORTH CAROLINA “IN THE GENERAL COURT OF JUSTICE a) tay <7. py SUPERIOR COURT DIVISION COUNTY OF WAKE T-7 Fb 19 20-cvS-6346 ‘TAMIKA WALKER KELLY, KRISTY MOORE, AMANDA HOWELL, KATE MEININGER, ELIZABETH MEININGER, JOHN SHERRY, and RIVCA RACHEL SANOGUEIRA Plainttts, ORDER STATE OF NORTH CAROLINA and NORTH CAROLINA STATE EDUCATIONAL ASSISTANCE AUTHORITY, Defendants, and PHILIP E. BERGER in his official capacity as President Pro Tempore ofthe North Carolina Senate, and TIMOTHY K. MOORE in his official ‘eapacity as Speater of the North Carolina Howse of Represemaiives, Intervenor-Defendants, and JANET NUNN, CHRISTOPHER AND NICHOLE PEEDIN, and KATRINA POWERS, Intervenor-Defendants, ORDER ON MOTIONS TO_TRANSFER TO THREE-JUDGE PANE THIS CAUSE comes before the Court on motions by Defendants State of North Carolina and North Carolina State Educational Assistance Authority (“State Defendants”) and Intervenor- Defendants Philip Berger and Timothy Moore (“Legislative Intervenor-Defendants”) to transfer this ease to a three-judge panel pursuant to N.C. Gen. Sta. § 1A-1, Rule 42(6)4), and N.C. Gen, Stat, §1-267.1, based on their contention that Plaintifls” Complaint presents a facial challenge to the Opportunity Scholarship Program (“the Program"). Plainliffs contend that the Complaint presents an as-applied challenge to the Program, making transfer to a three-judge panel inappropriate‘The Comp! 1. ‘The Plaintiffs are seven North Carolina parents wino contend thatthe Program, as implemented, violates various provisions ofthe North Carolina Constitution, 2. ° Plaintiffs” frst claim for relief argues that the State directs taxpayer funds to inatory private schools, denying Plaintiffs equal protetion of the laws, subjecting them to nation, and interfering with ther rights of conscience. (Compl. $f 103-15.) 3. Plaintiffs" second claim for relief argues that directing taxpayer funds to private schools with such discriminatory policies furthers no public purpose and does not guard and ‘maintain North Carolinians’ right to the privilege of education. (Compl. 116-25.) 4. Plaintiff" third elaim for reli contends that the Program has been implemented ina way that effectuates “the transfer of taxpayer funds without any accountability” and, therefore, without “any public purpose.” (Compl. f 127-28.) 5. The frst and second claims are based on factual allegations pertaining to the policies of voucher-reeipient schools. (Compl. $7 44-49.) The third claim is based on factual allegations regarding the State's failure in practice to abide by the Program's statutory accountability requirements. (Compl. $Y 37-41.) 6. Plaintffs* Complaint opens by stating, “this lawsuit is an as-applied constitutional challenge tothe Program.” (Compl. 1.) On 18 occasions over the course ofits 39 pages, the complaint notes its challenge isto the Program “as implemented.” (Comp. $4 2-5, 28,38, 114-15, 120-21, 124-25, 128, 130-31.) 7. The Complaint does not allege thatthe Program would be unconstitutional if the State didnot provide funds to schools thet discriminate against them and others with similar attributes, or if, in implementing the Program, the State had fulfilled its constitutional responsibility to guard and maintain State funds expended for the public purpose of education, Analysis 1. “Pursuant to GS, 1-267.1, any facial challenge to the validity ofan act of the General Assembly ... shall be heard by a three-judge pane... ifa claimant raises such a challenge in the claimant's complaint[.! N.C. Gen. Stat. § TA-1, Rule 42(b\4), 2, A facial challenge alleges that a statue is “unconstitutional in all cireumstances,” and hence “that there re no circumstances under which the statute might be constitutional.” Cooper v. Berger, 371 N.C. 799, 803, 822 S.E.24 286, 291 (2018) (quoting Hart v. State, 368, N.C. 122, 131, 774 S.E.24 281 (2013); aceord Holdstock v. Duke Univ. Health System, In, 270 N.C. App. 267, 272, 851 S.E.24 307, 311 (2020) (“A facial challenge isan attack on a statute itsel'as opposed to a particular application.") 3, “Facial attacks... . are not dependent on the fats surrounding any particular ‘controversy. Farsyth County » Nationalist Movement, $05 U.S. 123, 133 n.10 (1992). “An ‘ordinary as-applied challenge, by contrast asks a court to assess a statue's consttutionality with respect to the particular set of fats before it.” FEC v. Wis. Right to Life, nc., 551 U.S. 449, 456-57 (2007). 4, Plaintiffs" Complaint does not assert that the Program is unconstitutional inal applications and instead challenges the particular manner in which the Program has been implemented,5. Plaintiffs” constitutional claims are based on facts surrounding the Pro implementation, such asthe policies of specific schools that have received funding through the Program, and not on provisions of the statute that created the Program. 6. Plaintiffs" Complaint presents an a-applied challenge tothe Program, nota facial challenge to the Program 7. IEPlaintffs prevail, the seope of any equitable relief will be inthe sound discretion ofthe Court. See Roberts v. Madison Cty. Realtors Ass'n, Inc, 344 N.C. 394, 399, 474 S.E.24 783, 787 (1996) (“When equitable relief is sought, courts claim the power to grant, deny, limit, or shape that relief as matter of discretin."). ‘The proposed relief specified in the ‘Complaint does not convert the as-applied challenge toa facial challenge. 8, Because the Complaint does not present a facial challenge tothe validity of an act of the General Assembly, transfer to a three-judge pane! is inappropriate, Order For the foregoing reasons, the State Defendants’ motion to transfer toa three-judge pane! is DENIED and the Legislative Intervenor-Defendants’ motion to transfer to a three-judge panel is DENIED. parep: ey 7, 2091 2m dhe 6. Biyan Colina Superior Court Judge Presiding