Tell It To The Judge

On November 6th, the Superintendent of Public Instruction, Mark Johnson, and Department of Justice (DOJ) finally had their day in court asking for our lawsuit against the Superintendent to be dismissed.  As you may recall from earlier posts, we filed a lawsuit against the Superintendent (originally June Atkinson then Mark Johnson after Atkinson lost her bid for re-election in November of 2016) when it became clear that the Department of Public Instruction (DPI) was refusing to allow us to inspect public records we requested.  The DOJ filed a boilerplate motion to dismiss way back in November of 2016 claiming pretty much every reason allowable under the sun to dismiss the lawsuit.  In a nutshell, they claimed our suit had no merit, that DPI had fully complied with our public records requests, and that our case should be thrown out of court.

However, Assistant Attorney General Tiffany Lucas never bothered to schedule her motion to be heard by the court.  Instead, she and her colleagues supposedly reviewed and provided to us approximately 25,000 emails responsive to our public records requests, and promised us another 45,000 documents.  Why would our DOJ file a motion to dismiss a lawsuit and then never ask for the court to make a decision, while taking on a huge amount of work that could be avoided?  Well, they will not tell us why they found it more attractive to produce tens of thousands of public records rather than spend an hour in court, but we believe the truth has at least three parts:

  1. They knew their motion to dismiss was a sham.  Even though a DOJ attorney signed her name to the document and submitted it to the court stating that DPI had complied with our public records requests, she knew that was not true.  Call it zealous advocacy for her client if you’d like, but we just call it dishonest.
  2. The purpose of the motion was not to get the suit dismissed, it was to protect the Superintendent of Public Instruction from having to make any public statements about the misconduct at NCVPS.  By filing this motion, the Superintendent did not need to respond to the allegations in our complaint.
  3. They knew they would lose the motion hearing.

For many months, we collectively stayed with the motion filed but not scheduled for hearing, and with DPI producing a few hundred public records to us every two weeks.  Then, based on what we read in the emails we received from DPI, we amended our complaint to add additional allegations, and we started making discovery requests of the Superintendent of Public Instruction which required him to make public statements about the misconduct at NCVPS.  This undermined DOJ’s strategy and forced their hand.  They lied as much as they felt was reasonable (i.e., a lot) to avoid answering most discovery requests from us, and they finally scheduled their motion to dismiss for hearing nearly a year after filing it.

So, we all came together on November 6th in Wake County Superior Court in front of Judge William Pittman:  two DOJ attorneys accompanied by a couple of DPI staffers against one private citizen who is not even an attorney.  Judge Pittman listened to both sides for over an hour (including quite a few fresh new lies from DOJ) before denying the Superintendent’s motion to dismiss.  To be fair, DOJ was successful in dismissing our two additional claims that the Superintendent failed to perform his statutory responsibilities related to the misconduct at NCVPS (little things like stopping his staff from destroying evidence of potential crimes and investigating whether people who steal from the state should hold teaching licenses).  The judge believed (oddly) that the Superintendent has discretion regarding whether or not to follow these laws.  But, our primary claim that DPI failed to comply with the NC Public Records Law in response to our requests was not dismissed by the judge.  Score one for the citizen watchdogs, also known as the underdogs!