IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-158
No. COA20-877
Filed 15 March 2022
Pitt County, No. 19 CVS 1217
ERIC STEVEN FEARRINGTON, CRAIG D. MALMROSE, Plaintiffs,
v.
CITY OF GREENVILLE, PITT COUNTY BOARD OF EDUCATION, Defendants.
Appeal by Plaintiffs from orders entered 22 April 2020, 22 July 2020, and 28
July 2020 by Judge Jeffery B. Foster in Pitt County Superior Court. Heard in the
Court of Appeals 8 September 2021.
Stam Law Firm, PLLC, by R. Daniel Gibson and Paul Stam, for Plaintiffs- Appellants.
Hartzog Law Group LLP, by Dan Hartzog Jr., for Defendant-Appellee City of Greenville.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King III, Jill R. Wilson, and Elizabeth L. Troutman, for Defendant-Appellee Pitt County Board of Education.
GRIFFIN, Judge.
¶1 Plaintiffs Eric Steven Fearrington and Craig D. Malmrose appeal from orders
denying Plaintiffs’ motion for summary judgment and granting City of Greenville’s
and Pitt County Board of Education’s motions to dismiss. Plaintiffs argue that
various aspects of Greenville’s Red Light Camera Enforcement Program (“RLCEP”) FEARRINGTON V. CITY OF GREENVILLE
Opinion of the Court
are illegal and unconstitutional. After review, we hold that the funding framework
of the RLCEP violates the Fines and Forfeitures Clause contained in Article IX,
Section 7 of our State Constitution. We therefore reverse the trial court’s dismissal
of Plaintiffs’ claim under Article IX, Section 7 and remand for entry of summary
judgment in Plaintiffs’ favor. We otherwise affirm the trial court’s orders.
¶2 Plaintiffs also argue that the trial court erroneously considered the affidavit of
an unqualified expert. We hold that Plaintiffs failed to preserve this argument for
appellate review.
I. Factual and Procedural Background
¶3 Pursuant to sections 20-158 and 20-176 of our General Statutes, failure to stop
at a traffic light when the light is red is an infraction subject to a “penalty of not more
than one hundred dollars[.]” N.C. Gen. Stat. §§ 20-158(b)(2)(a), 20-176(a), (b) (2019).
Notwithstanding these provisions, the General Assembly has further provided that
certain “[m]unicipalities may adopt ordinances for the civil enforcement of [N.C. Gen.
Stat. §] 20-158 by means of a traffic control photographic system[.]” N.C. Gen. Stat.
§ 160A-300.1(c) (2019). These “traffic control photographic system[s]” are more
commonly known as “red light cameras.” Id.
¶4 On 30 June 2016, the General Assembly enacted a local act authorizing
Greenville to implement an RLCEP, providing in pertinent part:
SECTION 3. . . . (2) A violation detected by a [red light FEARRINGTON V. CITY OF GREENVILLE
camera] shall be deemed a noncriminal violation for which a civil penalty of one hundred dollars ($100.00) shall be assessed, and for which no points authorized by G.S. 20-16(c) shall be assigned to the owner or driver of the vehicle nor insurance points as authorized by G.S. 58-36-65.
SECTION 4. The City of Greenville and the Pitt County Board of Education may enter into an interlocal agreement necessary and proper to effectuate the purpose and intent of G.S. 160A-300.1 and this act. Any agreement entered into pursuant to this section may include provisions on cost-sharing and reimbursement that the Pitt County Board of Education and the City of Greenville freely and voluntarily agree to for the purpose of effectuating the provisions of G.S. 160A-300.1 and this act.
An Act to Make Changes to the Law Governing Red Light Cameras in the City of
Greenville, 2016 N.C. Sess. Laws 64, §§ 3, 4 [hereinafter “S.L. 2016-64”].
¶5 After S.L. 2016-64 was enacted, Greenville implemented an RLCEP and
amended its Code of Ordinances accordingly:
Sec. 10-2-283. Offense.
(a) It shall be unlawful for a vehicle to cross the stop line at a [red light camera] location when the traffic signal for that vehicle’s direction of travel is emitting a steady red light[.]
...
Sec. 10-2-285. Appeals. . . .
Appeals shall be heard through an administrative process established by the city. Once an appeal is requested, an appeal hearing will be scheduled. The hearing officer’s FEARRINGTON V. CITY OF GREENVILLE
decision is subject to review in the Superior Court of Pitt County by proceedings in the nature of certiorari.
Greenville, N.C., Code of Ordinances §§ 10-2-283(a), 285 (2016).
¶6 In March 2017, Greenville entered into a contract with American Traffic
Solutions (“ATS”), a firm headquartered in Arizona, for the installation, maintenance,
and management of the City’s RLCEP. Pursuant to the contract, Greenville agreed
to pay ATS $31.85 in fees for every $100.00 paid citation, in addition to other
miscellaneous fees associated with ATS services. The record reflects that detailed
design plans for the RLCEP were produced with ATS’s logo and address appearing
on each page. Robert F. Rennebaum, a licensed North Carolina engineer, signed and
affixed his seal to the design plans.
¶7 In November 2018, the North Carolina Board of Examiners for Engineers and
Surveyors sent a letter to ATS, stating that “there [wa]s sufficient evidence to support
the charges that [ATS] [wa]s practicing or offering to practice engineering and
surveying in North Carolina . . . without being licensed” by the Board. The Board
also sent a letter to Mr. Rennebaum, which stated, “[F]or red light camera installation
plans for . . . Greenville . . . bearing your certification, you may be in violation for
affixing your seal to work not done under your direct supervisory control . . . and
aiding and abetting [ATS] to evade or attempt to evade the provisions of [N.C. Gen.
Stat. § 89C-16]. Allegedly, the work you certified was prepared by [ATS].” In May FEARRINGTON V. CITY OF GREENVILLE
2019, the Board entered a Decision and Order finding that Mr. Rennebaum did
commit the foregoing violations and ordered that he pay a $5,000.00 civil penalty and
pass an “Engineering Ethics” course.
¶8 Greenville and Pitt County Board of Education (the “School Board”) entered
into an interlocal funding agreement whereby the civil penalties from the RLCEP
would be collected by Greenville and forwarded to the School Board. It was agreed
that Greenville would then invoice the School Board monthly for all expenses
associated with maintaining the RLCEP, and the invoices were to be paid within
thirty days of receipt. According to Greenville’s responses to interrogatories, the
RLCEP generated $2,495,380.46 in total revenue from 2017 through June 2019. The
School Board paid Greenville $706,986.65 in program expenses during the same
period, which included $581,986.65 in fees invoiced by ATS. The School Board
received $1,788,393.81 in net revenue during the period, which is 71.66% of the total
amount of fines and fees collected by Greenville.
¶9 On 15 May 2018, Plaintiff Fearrington was issued a citation for failing to stop
at a red light camera location when the light was red. Fearrington submitted a
written request for an appeal and stated in his request that (1) the RLCEP violated
“Article I, Sections 1, 19, 35 and 36 of the North Carolina Constitution”; and (2) the
interlocal agreement between Greenville and the School Board violated “Article IX,
Section 7 of the North Carolina [Constitution]” because less than “ninety percent of FEARRINGTON V. CITY OF GREENVILLE
the clear proceeds of” the civil penalties collected by Greenville went to the School
Board. An appeal hearing was held on 16 October 2018, after which a Notice of
Determination was issued finding Fearrington “liable” because he presented “no
defense[.]”
¶ 10 Following the appeal hearing, Fearrington was informed in writing that he had
“fully exhausted [his] administrative remedies with the City of Greenville concerning
[his] citation” and that, if he wished to pursue the matter further, he should file a
petition for writ of certiorari with Pitt County Superior Court. Fearrington then filed
a petition for writ of certiorari. In response, Defendants stated to him in writing that
“[t]he proper mechanism through which to present your two constitutional challenges
to the [RLCEP] is through a declaratory judgment action[.]” Pursuant to an
agreement between the parties, the trial court entered a “Consent Order for the
purpose of effectuating their agreements” and concluded the following as a matter of
law:
1. [Fearrington] has fully exhausted his administrative remedies with the City of Greenville concerning his citation. 2. A declaratory judgment action, rather than a Petition for Review under N.C. Gen. Stat. § 160A-393, is the most efficient means for [Fearrington] to present his as- applied challenges to the [RLCEP].
¶ 11 Plaintiff Malmrose also appealed his citation. Malmrose stated in a sworn
deposition that he attempted to record his appeal hearing on his phone, but a FEARRINGTON V. CITY OF GREENVILLE
Greenville police officer stopped him from doing so. The officer confiscated
Malmrose’s phone and informed him that Greenville’s city attorney instructed him to
not allow respondents to record the hearings. Following the hearing, a Notice of
Determination was issued finding Malmrose “liable” because of a “fast yellow[.]”
¶ 12 On 22 April 2019, Plaintiffs jointly filed a Complaint in Pitt County Superior
Court, seeking declaratory judgments that the RLCEP violated (1) Article I, Sections
1, 19, 35 and 36 of the North Carolina Constitution, as applied; (2) N.C. Gen. Stat. §
160A-300.1; (3) Article IX, Section 7 of the North Carolina Constitution, as applied,
due to the funding scheme adopted by the interlocal agreement between Greenville
and the School Board; (4) Chapter 89C of the North Carolina General Statutes
governing the lawful practice of engineering in North Carolina; and (5) procedural
due process.
¶ 13 On 22 April 2020, the trial court granted Defendants’ motions to dismiss, and
denied Plaintiffs’ motion for summary judgment, as to claims (2), (3), and (4). On 22
July 2020, the court granted the School Board’s motion to dismiss as to claims (1) and
(5), resolving all remaining claims against the School Board. With only claims (1)
and (5) pending against Greenville remaining, the trial court granted summary
judgment in Greenville’s favor as to those claims. Plaintiffs’ timely filed notice of
appeal from the trial court’s orders.
II. Jurisdiction FEARRINGTON V. CITY OF GREENVILLE
¶ 14 Defendants argue that (1) Plaintiffs’ claims must be dismissed for failure to
exhaust administrative remedies and (2) an adequate state remedy exists to redress
Plaintiffs’ injury, barring Plaintiffs’ constitutional claims. Defendants also argue
that Plaintiffs lack standing to bring their claim under Article IX, Section 7. We
address each argument in turn.
A. Administrative Remedies
¶ 15 Defendants argue that Plaintiffs’ claims should be dismissed because Plaintiffs
failed to exhaust administrative remedies. Because Plaintiffs did not have their
administrative appeals heard via petitions for certiorari in Pitt County Superior
Court, Defendants reason that Plaintiffs were barred from filing the instant action.
We disagree.
¶ 16 “As a general rule, where the legislature has provided by statute an effective
administrative remedy, that remedy is exclusive and its relief must be exhausted
before recourse may be had to the courts.” Presnell v. Pell, 298 N.C. 715, 721, 260
S.E.2d 611, 615 (1979). “If a plaintiff has failed to exhaust its administrative
remedies, the court lacks subject matter jurisdiction and the action must be
dismissed.” Phillips v. Orange Cty. Health Dep’t, 237 N.C. App. 249, 257, 765 S.E.2d
811, 817 (2014) (citation omitted).
¶ 17 With respect to red light camera citations, N.C. Gen. Stat. § 160A-300.1(c)(4)
provides that “[t]he municipality shall institute a nonjudicial administrative hearing FEARRINGTON V. CITY OF GREENVILLE
to review objections to citations or penalties issued or assessed under this section.”
The local ordinance governing Greenville’s RLCEP provides,
Appeals shall be heard through an administrative process established by the city. Once an appeal is requested, an appeal hearing will be scheduled. The hearing officer’s decision is subject to review in the Superior Court of Pitt County by proceedings in the nature of certiorari.
Greenville, N.C., Code of Ordinances §§ 10-2-285. Review of the hearing officer’s
decision in superior court is the final step in the appeal process established by
Greenville.
¶ 18 In this case, Fearrington filed a petition for writ of certiorari in Pitt County
Superior Court seeking review of the constitutional claims he presented during the
administrative hearing. Defendants then stated to him in writing that “[t]he proper
mechanism through which to present your two constitutional challenges to the
[RLCEP] is through a declaratory judgment action[.]” Pursuant to an agreement by
the parties, the trial court entered a Consent Order disposing of Fearrington’s
petition for writ of certiorari and concluded as a matter of law that Fearrington had
“fully exhausted his administrative remedies with the City of Greenville concerning
his citation.”
¶ 19 We conclude that Fearrington exhausted his administrative remedies once the
trial court entered the Consent Order disposing of his petition for writ of certiorari.
The Consent Order constitutes a final order entered in the last stage of the FEARRINGTON V. CITY OF GREENVILLE
administrative appeal process. Once the order was entered, Fearrington had no other
administrative remedy available to him and was free to file the instant action in the
trial court.
¶ 20 Defendants argue that, regardless of the trial court’s conclusion that
administrative remedies were exhausted, Plaintiffs’ appeal should be dismissed
because (1) the trial court’s conclusion was incorrect and (2) the Consent Order was
entered to give effect to the parties’ agreements, which is insufficient to establish
subject matter jurisdiction.
¶ 21 It is true that “parties to an action may not stipulate to give a court subject
matter jurisdiction[] where no such jurisdiction exists. Thus, the parties could not
simply stipulate that they had exhausted all administrative remedies in order for the
trial court to have jurisdiction over the matter.” Bio-Medical Apps. of N.C., Inc. v.
N.C. Dep’t of Health & Hum. Servs., 179 N.C. App. 483, 492, 634 S.E.2d 572, 579
(2006). In this case, however, a final order was entered which disposed of the final
appeal in the administrative process. The Consent Order thus amounted to more
than a mere stipulation by the parties. Once the parties’ agreement was reduced to
a written order, “[i]t acquire[d] the status of a judgment, with all its incidents,
through the approval of the judge and its recordation in the records of the court.”
McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948) (emphasis added). “The
fact that a judgment is rendered by consent gives it neither less nor greater force and FEARRINGTON V. CITY OF GREENVILLE
effect than it would have had it been rendered after protracted litigation, except to
the extent that the consent excuses error and operates to end all controversy between
the parties.” Id. at 720, 47 S.E.2d at 31.
¶ 22 Moreover, our inquiry with respect to the exhaustion requirement is not
whether the legal conclusions contained in the final order are correct or incorrect.
Once a tribunal with proper jurisdiction enters a final order disposing of the last stage
in the administrative process, as here, all administrative remedies are exhausted.
See Hentz v. Asheville City Bd. of Educ., 189 N.C. App. 520, 523, 658 S.E.2d 520, 522
(2008) (“Because the [Board of Education] had not yet issued a final decision at the
time [the] plaintiff filed her action in superior court, [the] plaintiff had not exhausted
all administrative remedies.”). Whether the trial court correctly concluded that
Fearrington had exhausted his administrative remedies is therefore irrelevant.
B. Adequate State Remedy
¶ 23 Defendants also argue that Plaintiffs’ constitutional claims are barred because
an adequate state remedy exists to redress Plaintiffs’ injury. See Corum v. Univ. of
N.C. Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992) (“Having no
other remedy, our common law guarantees [the] plaintiff a direct action under the
State Constitution for alleged violations of his constitutional . . . rights.” (citation
omitted)). We have already concluded that Fearrington exhausted all remedies
available to him. There is also no adequate statutory or common law remedy which FEARRINGTON V. CITY OF GREENVILLE
would redress Plaintiffs’ asserted injuries under the State Constitution. See Alt v.
Parker, 112 N.C. App. 307, 318, 435 S.E.2d 773, 779 (1993) (dismissing the plaintiff’s
appeal due to the existence of adequate state remedies because the plaintiff failed to
exhaust administrative remedies and had a “common law tort action for false
imprisonment available to him”). We therefore conclude that an adequate state
remedy does not exist to bar Plaintiffs’ constitutional claims.
C. Article IX, Section 7 Standing
¶ 24 Finally, Defendants argue that Plaintiffs lack standing to challenge the
funding scheme adopted by the interlocal agreement between Greenville and the
School Board. Because “Plaintiffs do not have a sufficient stake in any alleged
controversy arising under the Interlocal Agreement” and “have not suffered some
‘injury in fact’ from any breach thereof,” Defendants contend that Plaintiffs’ claim
under Article IX, Section 7 must be dismissed. We disagree.
¶ 25 First, our Supreme Court has made plain that the “injury-in-fact requirement
has no place in the text or history of our [S]tate Constitution” and is “inconsistent
with the caselaw of this Court.” Comm. to Elect Dan Forest v. Emps. Political Action
Comm., 376 N.C. 558, 2021-NCSC-6, ¶¶73–74. “Rather, as a rule of prudential self-
restraint . . . we have required a plaintiff to allege ‘direct injury’ to invoke the judicial
power to pass on the constitutionality of a legislative or executive act.” Id. ¶ 73. On
the other hand, “[w]hen a person alleges the infringement of a legal right arising FEARRINGTON V. CITY OF GREENVILLE
under a cause of action at common law, a statute, or the North Carolina Constitution,
. . . the legal injury itself gives rise to standing.” Id. ¶ 82. This is because the “remedy
clause [of our State Constitution] should be understood as guaranteeing standing to
sue in our courts where a legal right at common law, by statute, or arising under the
North Carolina Constitution has been infringed.” Id. ¶ 81 (emphasis in original)
(citing N.C. Const. Art. I, § 18, cl. 2). Because Plaintiffs are not challenging the
constitutionality of a statute or an “executive act,” they need not demonstrate an
injury-in-fact in order to establish standing. Id. ¶¶ 73, 81.
¶ 26 Even so, we cannot say that Plaintiffs have failed to demonstrate any injury
resulting from the funding agreement between Greenville and the School Board.
Plaintiffs were both issued citations at red light camera locations and each were
found liable for a $100.00 fine. If Plaintiffs are correct in arguing that the proceeds
of the fines are unconstitutionally appropriated pursuant to Article IX, Section 7, they
have demonstrated an injury to their rights under the State Constitution. Our
appellate courts have previously addressed the merits of at least one case strikingly
similar to the case at bar. See Cauble v. City of Asheville, 301 N.C. 340, 271 S.E.2d
258 (1980).
¶ 27 In Cauble, the plaintiff “alleged that he and the citizens, residents and
taxpayers of the City of Asheville had paid fines for overtime parking which . . . ,
pursuant to Article IX, [S]ection 7 of the North Carolina Constitution, belonged to the FEARRINGTON V. CITY OF GREENVILLE
county to be ‘used exclusively for maintaining free public schools.’” Id. at 341, 271
S.E.2d at 259. At no point did this Court or our Supreme Court doubt whether it had
subject-matter jurisdiction to hear the plaintiff’s appeal. Id. at 342, 271 S.E.2d at
259. Similar to Cauble, Plaintiffs allege that they each paid fines for red light camera
violations which, under Article IX, Section 7, belong to the School Board. We discern
no notable difference between Cauble and the instant case with respect to
jurisdiction.
¶ 28 Moreover, there is “no serious question that a taxpayer ha[s] an equitable right
to sue to prevent an illegal disposition of the moneys of [a] county.” Goldston v. State,
361 N.C. 26, 31, 637 S.E.2d 876, 880 (2006) (citations and internal quotation marks
omitted). “[I]f such rights were denied to exist against municipal corporations, then
taxpayers and property owners who bear the burdens of government would not only
be without remedy, but liable to be plundered whenever irresponsible men might get
into the control of the government of towns and cities.” Id. (citation omitted).
Plaintiffs alleged in their Complaint that they are residents and taxpayers of Pitt
County.
¶ 29 We conclude that Plaintiffs’ appeal is properly before this Court and proceed
to address the merits of their arguments.
III. Analysis FEARRINGTON V. CITY OF GREENVILLE
¶ 30 Plaintiffs argue that the trial court erred in denying their motion for summary
judgment because Greenville’s RLCEP violates (1) Chapter 89C of the North Carolina
General Statutes; (2) procedural due process; (3) substantive due process; and (4) the
Fines and Forfeitures Clause contained in Article IX, Section 7 of the North Carolina
Constitution. We hold that Plaintiffs are entitled to summary judgment as to their
claim under the Fines and Forfeitures Clause. We otherwise affirm the trial court’s
orders.
¶ 31 Plaintiffs also argue that the trial court erred in considering the affidavit of an
unqualified expert. Although Plaintiffs motioned to strike the affidavit from the
court’s consideration, our review of the record indicates that Plaintiffs never obtained
a ruling on that motion. See N.C. R. App. P. 10(a)(1) (“In order to preserve an issue
for appellate review, a party must have presented to the trial court a timely request,
objection or motion . . . [and] obtain a ruling upon the party’s request, objection, or
motion.”); Finley Forest Condo. Ass’n v. Perry, 163 N.C. App. 735, 738, 594 S.E.2d 227,
230 (2004) (“This Court is unable to review the issue concerning the trial court’s
admission and consideration of the affidavits since there is nothing before this Court
indicating the trial court’s ruling on the question.”). We are thus unable to review
this issue.
A. Chapter 89C FEARRINGTON V. CITY OF GREENVILLE
¶ 32 Plaintiffs contend that Chapter 89C of the General Statutes “imposes a duty
on municipalities to enforce its provisions” and that “Defendants violated this duty
by using red light camera plans drawn by unlicensed engineers” with ATS. Because
Chapter 89C does not contemplate or provide a private cause of action for violations
of its provisions, we hold that Plaintiffs’ claim was appropriately dismissed by the
¶ 33 “[A] statute may authorize a private right of action either explicitly or
impliedly, though typically, ‘a statute allows for a private cause of action only where
the legislature has expressly provided a private cause of action within the statute[.]’”
Sykes v. Health Network Sols., Inc., 372 N.C. 326, 338, 828 S.E.2d 467, 474 (2019)
(citations omitted). “Where a cause of action is created by statute and the statute
also provides who is to bring the action, the person or persons so designated, and,
ordinarily, only such persons, may sue.” State ex rel. Lanier v. Vines, 274 N.C. 486,
492, 164 S.E.2d 161, 164 (1968) (citation omitted).
¶ 34 N.C. Gen. Stat. § 89C-23 provides in pertinent part:
Any person who shall practice, or offer to practice, engineering or land surveying in this State without first being licensed in accordance with the provisions of this Chapter . . . , in addition to injunctive procedures set out hereinbefore, shall be guilty of a Class 2 misdemeanor. . . . It shall be the duty . . . of the State and all political subdivisions of the State to enforce the provisions of this Chapter and to prosecute any persons violating them. FEARRINGTON V. CITY OF GREENVILLE
N.C. Gen. Stat. § 89C-23 (2019). Section 89C-23 thus provides two enforcement
mechanisms for violations of its provisions: (1) “injunctive procedures” and (2)
criminal prosecution. Id. With respect to the former, N.C. Gen. Stat. § 89C-10(c)
provides, “The Board [of Examiners for Engineers and Surveyors] may in the name
of the State apply for relief, by injunction, . . . to enforce the provisions of this
Chapter, or to restrain any violation of the provisions of this Chapter.” N.C. Gen.
Stat. § 89C-10(c) (2019).
¶ 35 Here, Chapter 89C does not provide Plaintiffs with a private cause of action.
It instead vests authority in the Board to seek an injunction in the name of the State
for violation of the Chapter’s provisions. Id. Although section 89C-23 requires “all
political subdivisions of the State to enforce the provisions of th[e] Chapter and to
prosecute any persons violating them[,]” it does not provide Plaintiffs with a private
right of action against Defendants. Id. § 89C-23.
¶ 36 The fact that Plaintiffs seek a declaratory judgment as opposed to an injunction
does not change our analysis. For example, in Sykes, the plaintiffs sought a
declaratory judgment that the defendants “fail[ed] to comply with various provisions
of the [S]tate’s Insurance Law found in Chapter 58 of the North Carolina General
Statutes.” Sykes, 372 N.C. at 337, 828 S.E.2d at 474. The plaintiffs argued that the
“Declaratory Judgment Act g[a]ve[] them a path to declaratory relief,
notwithstanding Chapter 58’s language vesting enforcement authority in the FEARRINGTON V. CITY OF GREENVILLE
Commissioner of Insurance.” Id. at 339, 828 S.E.2d at 475. The Court rejected this
argument, holding that “the language of [Chapter 58], as well as the previous cases
interpreting other portions of Chapter 58, vest enforcement of the requirements of
the statutory sections identified by plaintiffs in the Commissioner of Insurance,
meaning that plaintiffs do not have a private right of action for declaratory relief
under these provisions.” Id.
¶ 37 As in Sykes, Plaintiffs seek a declaration that Defendants violated certain
statutory provisions, but those provisions do not provide Plaintiffs with a private
right of action. Instead, the authority to enforce Chapter 89C lies with the Board of
Examiners for Engineers and Surveyors and “political subdivisions of the State.”
N.C. Gen. Stat. §§ 89C-10, 23. Plaintiffs point to no portions of Chapter 89C that,
either expressly or impliedly, confer a right of action on private claimants. We affirm
the trial court’s dismissal of Plaintiffs’ claim under Chapter 89C.
B. Procedural Due Process
¶ 38 Plaintiffs next argue that the RLCEP’s administrative appeal hearings violate
procedural due process because the hearing officers “disregard[] evidence and deny[]
the right to record hearings.” We disagree.
¶ 39 “The fundamental premise of procedural due process protection is notice and
the opportunity to be heard . . . ‘at a meaningful time and in a meaningful manner.’”
Peace v. Emp. Sec. Comm’n of N.C., 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) FEARRINGTON V. CITY OF GREENVILLE
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “At a minimum, due process
requires adequate notice of the charges and a fair opportunity to meet them, and the
particulars of notice and hearing must be tailored to the capacities and circumstances
of those who are to be heard.” State v. Stines, 200 N.C. App. 193, 198, 683 S.E.2d 411,
414 (2009) (citation omitted). Under the 14th Amendment of the federal constitution,
the degree of process due in a particular proceeding turns on three factors: (1) “the
private interests at stake,” (2) “the government’s interest,” and (3) “the risk that the
procedures used will lead to erroneous decisions.” Lassiter v. Dep’t of Soc. Servs. of
Durham Cty., N.C., 452 U.S. 18, 27 (1981) (citing Matthews v. Eldridge, 424 U.S. 319,
335 (1976)).
¶ 40 Greenville is required by statute to “institute a nonjudicial administrative
hearing to review objections to [red light camera] citations[.]” N.C. Gen. Stat. § 160A-
300.1(c)(4). To that end, the local ordinance governing Greenville’s RLCEP provides
that appeals from citations “shall be heard through an administrative process
established by the city.” Greenville, N.C., Code of Ordinances §§ 10-2-285. If the
appellant receives an unfavorable decision following his administrative appeal, the
RLCEP provides that the “hearing officer’s decision is subject to review in the
Superior Court of Pitt County by proceedings in the nature of certiorari.” Id.
¶ 41 Once a petition for certiorari is filed and granted, the superior court reviews
the administrative decision pursuant to the following standard of review: FEARRINGTON V. CITY OF GREENVILLE
(1) . . . [T]he court shall ensure that the rights of petitioners have not been prejudiced because the decision-making body's findings, inferences, conclusions, or decisions were:
a. In violation of constitutional provisions, including those protecting procedural due process rights.
b. In excess of the statutory authority conferred upon the local government, including preemption, or the authority conferred upon the decision-making board by ordinance.
c. Inconsistent with applicable procedures specified by statute or ordinance.
d. Affected by other error of law.
e. Unsupported by competent, material, and substantial evidence in view of the entire record.
f. Arbitrary or capricious.
(2) When the issue before the court is one set forth in sub- subdivisions a. through d. of subdivision (1) of this subsection, including whether the decision-making board erred in interpreting an ordinance, the court shall review that issue de novo. . . . Whether the record contains competent, material, and substantial evidence is a conclusion of law, reviewable de novo.
N.C. Gen. Stat. § 160D-1402(j)(1-2) (2020).1
1 Prior to 19 June 2020, appeals from municipal administrative decisions subject to superior court review were governed by N.C. Gen. Stat. § 160A-393 (2019). The General Assembly subsequently amended the provisions therein and recodified them under a new Chapter: 160D. The standard of review governing the instant appeal remains unchanged. Moreover, N.C. Gen. Stat. § 160D-111, titled “Effect on prior laws,” provides, “The enactment of [160D] does not require the readoption of any local government ordinance enacted pursuant to laws FEARRINGTON V. CITY OF GREENVILLE
¶ 42 We conclude that the hearing process established by Greenville is
constitutionally adequate. First, there is little “risk that the procedures used will
lead to erroneous decisions.” Lassiter, 452 U.S. at 27 (1981). Given that running a
red light is a strict liability offense, N.C. Gen. Stat. §§ 20-158(2)(a), 20-176(a), (b)
(2019), it follows that determining whether a cited individual is liable for a violation
involves a rather limited inquiry. For example, Greenville’s ordinances provide only
two affirmative defenses to a red light camera violation:
(c) . . . [T]he owner of the vehicle shall not be responsible for the violation if . . . he furnishes the officials or agents of the city either of the following:
(1) An affidavit by him stating the name and address of the person or entity who had the care, custody, and control of the vehicle at the time of the violation; or
(2) An affidavit by him stating that, at the time of the violation, the vehicle involved was stolen. The affidavit must be supported with evidence that supports the affidavit, including insurance or police report information.
(d) . . . [T]he owner of the vehicle shall not be responsible for the violation if notice of the violation is given to the
that were in effect before June 19, 2020 and are restated or revised herein. The provisions of this Chapter do not affect any act heretofore done, any liability incurred, any right accrued or vested, or any suit or prosecution begun or cause of action accrued as of June 19, 2020.” N.C. Gen. Stat. § 160D-111(a) (2020). Plaintiffs received their citations and commenced the instant suit prior to these amendments. FEARRINGTON V. CITY OF GREENVILLE
owner of the vehicle more than ninety (90) days after the date of the violation.
Greenville, N.C., Code of Ordinances § 10-2-283(c-d).
¶ 43 Neither Plaintiff presented evidence establishing an affirmative defense.
Although Malmrose was prevented from recording his hearing, the affirmative
defenses under the ordinance require submission of affidavits or proof that notice of
the violation was received more than ninety days after the violation. In light of this
limited inquiry, it is unlikely that recordings or transcripts of the proceedings would
mitigate the risk of erroneous decisions.
¶ 44 We also reject Plaintiffs’ argument that the hearing officers “disregard[ed]
evidence” during Fearrington’s hearing. During his hearing, Fearrington argued and
submitted evidence that the RLCEP, as applied, violated substantive due process as
well as Article IX, Section 7 of the State Constitution. A Notice of Determination was
subsequently issued finding Fearrington “liable” because he had “no defense[.]”
Fearrington indeed did not present evidence establishing an affirmative defense.
Moreover, municipal hearing officers do not have jurisdiction to decide constitutional
issues. See Meads v. N.C. Dep’t of Agric., 349 N.C. 656, 670, 509 S.E.2d 165, 174
(1998) (stating that “it is the province of the judiciary to make constitutional
determinations”). FEARRINGTON V. CITY OF GREENVILLE
¶ 45 Although “constitutional claims will not be acted upon by administrative
tribunals, such claims can be reserved for the” judiciary by statute, as here. Johnston
v. Gaston Cty., 71 N.C. App. 707, 713, 323 S.E.2d 381, 384 (1984). “This division of
review, saving constitutional issues for the courts, does not unduly hinder or restrict
[an appellant] in asserting his rights.” Id. On appeal to superior court, the trial judge
has jurisdiction to determine whether the hearing officers’ decisions are “[i]n violation
of constitutional provisions, including those protecting procedural due process
rights.” N.C. Gen. Stat. § 160D-1402(j)(1)(a). The superior court decides
constitutional questions de novo and, if necessary, has the authority to “allow the
record to be supplemented with affidavits, testimony of witnesses, or documentary or
other evidence[.]” Id. § 160D-1402(j)(1), (i). We conclude that these procedures
adequately protected Plaintiffs’ procedural due process rights.
C. Substantive Due Process
¶ 46 Plaintiffs also argue that Greenville’s RLCEP, as applied, violates substantive
due process under the State Constitution because it “infringes Plaintiffs’ fundamental
right to travel and has no rational relation to a legitimate governmental purpose.”
This argument is without merit.
¶ 47 In general, substantive due process bars government action that unreasonably
or arbitrarily deprives individuals of a liberty or property interest. Rhyne v. K-Mart
Corp., 358 N.C. 160, 181, 594 S.E.2d 1, 15 (2004). “When reviewing an alleged FEARRINGTON V. CITY OF GREENVILLE
violation of substantive due process rights, a court’s first duty is to carefully describe
the liberty interest the complainant seeks to have protected.” Standley v. Woodfin,
362 N.C. 328, 331, 661 S.E.2d 728, 730 (2008). If the liberty interest is “fundamental,”
our standard of review is strict scrutiny. Rhyne, 358 N.C. at 180, 594 S.E.2d at 15.
Otherwise, we apply the rational basis test, which only requires that the government
action “in question [be] rationally related to a legitimate government purpose.”
Standley, 362 N.C. at 332, 661 S.E.2d at 731.
¶ 48 Plaintiffs argue that the RLCEP infringes on “the fundamental right to
travel[.]” “[T]he right to travel on public streets is a fundamental segment of liberty”
such that “the absolute prohibition of such travel requires substantially more
justification than the regulation of it by traffic lights or rules of the road.” State v.
Dobbins, 277 N.C. 484, 499, 178 S.E.2d 449, 457-58 (1971) (emphasis added). “The
familiar traffic light is . . . an ever present reminder that this segment of liberty is
not absolute. It may be regulated, as to the time and manner of its exercise, when
reasonably deemed necessary to the public safety, by laws reasonably adapted to the
attainment of that objective.” Id. at 456, 178 S.E.2d at 497 (emphasis added).
¶ 49 Our precedent clearly demonstrates that laws relating to “traffic lights and
rules of the road” are different in kind than other laws regulating travel. Id. at 499,
178 S.E.2d at 457-58. So long as such laws are “reasonably adapted to the attainment
of” the government’s interest in “public safety,” they will not be disturbed upon review FEARRINGTON V. CITY OF GREENVILLE
by the courts. Id. at 456, 178 S.E.2d at 497. We therefore review Plaintiffs’
substantive due process claim under the rational basis test.
¶ 50 “When determining whether a rational basis exists for application of a law, we
must determine whether the law in question is rationally related to a legitimate
government purpose.” Standley, 362 N.C. at 332, 661 S.E.2d at 731 (citations
omitted). In making this determination, “it is immaterial whether this Court or an
individual could devise a more precise or perfect fit between the espoused goal and
the means chosen to effectuate that goal. The two need only be reasonably related[.]”
N.C. Bd. of Mortuary Sci. v. Crown Mem’l Park, LLC, 162 N.C. App. 316, 321, 590
S.E.2d 467, 471 (2004) (citing Clark’s Charlotte, Inc. v. Hunter, 261 N.C. 222, 229,
134 S.E.2d 364, 369 (1964)); see also FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993) (“[A] legislative choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or empirical data.”).
¶ 51 In this case, Plaintiffs submitted an affidavit from Brian Ceccarelli, a North
Carolina licensed engineer, stating that “Greenville’s yellow light durations” create a
“dilemma zone” for many drivers such that even a “driver who takes responsible steps
to follow the law[] neither has the distance to stop comfortably nor has the time to
traverse the distance to the intersection before the light turns red.” In his opinion,
Greenville’s “yellow light duration is too short, thus forcing the driver [in the dilemma
zone] to run the red light.” He further concluded that, if Greenville’s yellow light FEARRINGTON V. CITY OF GREENVILLE
durations were lengthened to account for the dilemma zone, “80%-90% fewer red light
running violations w[ould] be recorded by the camera system. . . . In particular,
neither [Plaintiff] would have been cited for a red-light violation.”
¶ 52 We hold that Greenville’s RLCEP did not violate Plaintiffs’ substantive due
process rights. In seeking authority from the General Assembly to implement an
RLCEP, Greenville resolved that “a serious public safety hazard is created by drivers
of motor vehicles who violate the law by entering an intersection after the traffic
signal light turns red[.]” Perhaps citations issued to those caught in the “dilemma
zone” do not further Greenville’s interest in public safety, or perhaps they do. As long
as the matter is rationally debatable, “it is immaterial whether this Court or an
individual could devise a more precise or perfect fit between the espoused goal and
the means chosen to effectuate that goal. The two need only be reasonably related[.]”
Crown Mem’l Park, 162 N.C. App. at 321, 590 S.E.2d at 471 (citing Hunter, 261 N.C.
at 229, 134 S.E.2d at 369).
¶ 53 We note that red light cameras, along with other forms of technology, have the
potential to drastically alter the enforcement of our traffic laws. A red light camera
now enables the government to monitor each and every traffic signal with exacting
precision, twenty-four hours a day, without blinking an eye. Mr. Ceccarelli noted in
his affidavit that Plaintiffs entered the intersection within “0.4” seconds of the light
turning red, stating that “[s]uch a quick time is discernable only by computer- FEARRINGTON V. CITY OF GREENVILLE
triggered camera, not by human perception.” In his opinion, Plaintiffs “had no reason
to know they were running a red light.”
¶ 54 Developments in technology will continue to present challenging problems
with which policymakers must contend. This Court, however, does not sit to make
policy determinations. A citizen’s best defense to what he sees as incompetent or
corrupt policy judgments is to appeal to his fellow citizens and hold his government
to account at the ballot box.
D. Fines and Forfeitures Clause
¶ 55 Plaintiffs argue that the RLCEP, as applied, violates the Fines and Forfeitures
Clause contained in Article IX, Section 7 of the State Constitution due to the funding
scheme adopted by the interlocal agreement between Greenville and the School
Board. Plaintiffs contend that, because the School Board receives less than the “clear
proceeds” of the civil penalties collected by Greenville, the RLCEP violates the Fines
and Forfeitures Clause. We agree, reverse the trial court’s order as to this claim, and
remand for entry of summary judgment in Plaintiffs’ favor.
¶ 56 Article IX, Section 7 provides that “the clear proceeds of all penalties and
forfeitures and of all fines collected in the several counties for any breach of the penal
laws of the State . . . shall be faithfully appropriated and used exclusively for
maintaining free public schools.” N.C. Const. Art. IX, § 7. “[T]he term ‘clear proceeds’
as used in Article IX, Section 7 is synonymous with net proceeds[,] . . . and . . . the FEARRINGTON V. CITY OF GREENVILLE
costs of collection should be deducted from the gross proceeds of monies received for
traffic violations in order to determine the net or ‘clear proceeds.’” Shavitz v. City of
High Point, 177 N.C. App. 465, 481, 630 S.E.2d 4, 15 (2006) (quoting Cauble v. City
of Asheville, 314 N.C. 598, 604, 336 S.E.2d 59, 63 (1985)) (alterations in original). “By
‘clear proceeds’ is meant the total sum less only the sheriff’s fees for collection, when
the fine and costs are collected in full.” Cauble, 314 N.C. at 602–03, 336 S.E.2d at 62
(quoting State v. Maultsby, 139 N.C. 583, 585, 51 S.E. 956, 956 (1905)) (alteration in
original).
[C]osts of collection do not include the costs associated with enforcing the ordinance but are limited to the administrative costs of collecting the funds. If . . . the costs of enforcing the penal laws of the State were a part of collection of fines imposed by the laws, there could never be any clear proceeds of such fines to be used for the support of the public schools. . . . Conversely it would be an impractical and harsh rule to deny municipalities the reasonable costs of collections.
Id. at 606, 336 S.E.2d at 64 (alteration in original).
¶ 57 “Article IX, Section 7 ‘is not self-executing’; therefore, the General Assembly
may ‘specify[] how the provision’s goals are to be implemented.’” Shavitz, 177 N.C.
App. at 482, 630 S.E.2d at 16 (quoting N.C. Sch. Bds. Ass’n v. Moore, 359 N.C. 474,
512, 614 S.E.2d 504, 527 (2005)). To that end, and not inconsistent with caselaw
limiting deductible costs to “costs of collection,” Moore, 359 N.C. at 527, 614 S.E.2d at
512; Cauble, 314 N.C. at 606, 336 S.E.2d at 64, the General Assembly has defined FEARRINGTON V. CITY OF GREENVILLE
“clear proceeds” as “the full amount of all penalties, forfeitures or fines collected
under authority conferred by the State, diminished only by the actual costs of
collection, not to exceed ten percent (10%) of the amount collected.” N.C. Gen. Stat. §
115C-437 (2019) (emphasis added).
¶ 58 We hold that the interlocal agreement between Greenville and the School
Board does not meet the minimum requirements of Article IX, Section 7 or N.C. Gen.
Stat. § 115C-437. According to Greenville’s responses to interrogatories, the RLCEP
generated $2,495,380.46 in total revenue from 2017 through June 2019. The School
Board paid Greenville $706,986.65 in program expenses during the same period,
which included $581,986.65 in fees invoiced by ATS. Ultimately, the School Board
received $1,788,393.81 in net revenue during the period, which is only 71.66% of the
total amount of fines and fees collected by Greenville. N.C. Gen. Stat. § 115C-437
provides that, at a minimum, school boards must receive 90% of the total fines and
fees collected.
¶ 59 Moreover, fines and fees may be “diminished only by the actual costs of
collection,” N.C. Gen. Stat. § 115C-437, and “the costs of collection do not include the
costs associated with enforcing the ordinance but are limited to the administrative
costs of collecting the funds.” Cauble, 314 N.C. at 606, 336 S.E.2d at 64. Pursuant to
the interlocal agreement, Greenville invoices the School Board for the salary and
benefits of a law enforcement officer as well as for all fees invoiced to Greenville by FEARRINGTON V. CITY OF GREENVILLE
ATS. This Court has previously held that the salary and benefits of law enforcement
officers are enforcement costs and are thus not deductible from the clear proceeds.
Shavitz, 177 N.C. App. at 482, 630 S.E.2d at 16 (stating that “the costs of employing
police and judges are not deducted to determine the clear proceeds of a penalty”).
Also, the contract between ATS and Greenville provides that Greenville pay ATS
$31.85 in fees for every $100.00 paid citation, in addition to other miscellaneous fees
associated with ATS services. The contract states that “[t]his fee will cover the
services set out in Article 2” of the contract, wherein “collections” is only one of ten
services included in the $31.85 fee. The fee also includes “enforcement” costs, which
may not be deducted from clear proceeds. Cauble, 314 N.C. at 606, 336 S.E.2d at 64.
Even assuming that the entirety of the $31.85 fee was for collection costs, Greenville
is only permitted to deduct $10 from every $100 paid citation to offset the costs of
collection. N.C. Gen. Stat. § 115C-437.
¶ 60 Defendants argue that the interlocal agreement does not violate Article IX,
Section 7 because Greenville initially pays the School Board 100% of the fines
collected under the RLCEP. Because Greenville collects all of its RLCEP expenses
from the School Board after forwarding the fines to the School Board, Defendants
argue that the funding agreement is constitutionally adequate.
¶ 61 This argument asks us to not only frustrate the clear intent of the people in
ratifying Article IX, Section 7, it also contravenes the plain language of the Fines and FEARRINGTON V. CITY OF GREENVILLE
Forfeitures Clause, which provides that “the clear proceeds . . . shall belong to and
remain in the several counties, and shall be faithfully appropriated and used
exclusively for maintaining free and public schools.” N.C. Const. Art. IX, § 7
(emphasis added).
¶ 62 We disagree that the School Board receives the “clear proceeds” of the fines
collected simply because Greenville initially forwards the fines to the School Board
and collects its expenses at a later date. The School Board does not receive the “clear”
proceeds of fines in any real sense when Greenville forwards the fines to the School
Board and subsequently takes 30% of the money back for costs which are not
deductible to begin with. Moreover, the clear purpose of the people in mandating that
the clear proceeds of such fines be “faithfully appropriated” to the public schools
cannot be circumvented by the elaborate diversion of funds or cleverly drafted
contracts. Id. (emphasis added).
¶ 63 Even if we were to accept Defendants’ argument that the School Board does
receive the clear proceeds at least initially, the clear proceeds must then “be used
exclusively for maintaining free and public schools” and thus may not be used to
reimburse Greenville for its RLCEP expenses to ATS. Id. Moreover, by stating that
the clear proceeds are to “remain in the several counties,” it is clear that the framers
did not intend for $31.85 of every $100.00 paid fine to go to private companies such
as ATS, a for-profit corporation located in Arizona. Id. FEARRINGTON V. CITY OF GREENVILLE
¶ 64 The language of Article IX, Section 7 “is unequivocal as to its drafters’ intent
to benefit the public schools as opposed to city treasuries” or private companies.
Shavitz, 177 N.C. App. at 484, 630 S.E.2d at 17. We hold that Plaintiffs are entitled
to summary judgment as to their claim under the Fines and Forfeitures Clause.
IV. Conclusion
¶ 65 For the foregoing reasons, we reverse the trial court’s dismissal of Plaintiffs’
claim under the Fines and Forfeitures Clause and remand for entry of summary
judgment in Plaintiffs’ favor. We otherwise affirm the trial court’s orders. We dismiss
Plaintiffs’ assignment of error as to the expert affidavit as not preserved for appellate
review.
DISMISSED IN PART; AFFIRMED IN PART; REVERSED AND
REMANDED IN PART.
Judges DIETZ and GORE concur.