No. 93A15                                                        TENTH DISTRICT

                            FILED 6 NOVEMBER 2015

                   SUPREME COURT OF NORTH CAROLINA

                                 ****************

TOWN OF BOONE,                    )
              Plaintiff,          )
          v.                      )
STATE OF NORTH CAROLINA,          )                 From Wake County
              Defendant,          )
                                  )
COUNTY OF WATAUGA,                )
             Intervenor-Defendant )

                                 ****************

                                      ORDER

      The State of North Carolina and the County of Watauga seek to appeal to this

Court pursuant to N.C.G.S. § 7A-27(a1). First, the State seeks to appeal two orders

entered on 29 December 2014 by a three-judge panel of the Superior Court in Wake

County, the first of which denied the State’s and the County’s motions to dismiss a

challenge to Chapter 33 of the 2014 Session Laws, Act of June 26, 2014, ch. 33, 2013

N.C. Sess. Laws (Reg. Sess. 2014) 139 (the “Boone Act”), and the second of which

issued a preliminary injunction enjoining any enforcement of the Boone Act. Next,

the State and the County also seek to appeal the panel’s 29 July 2015 order declaring

that the Boone Act violates Article II, Section 24 of the North Carolina Constitution

and entering summary judgment in favor of the Town of Boone.

      On 31 March 2015, the Town filed a “Motion to Dismiss Appeal” of the

December orders; the State filed a response on 10 April 2015. On 16 June 2015, the
Town also filed a “Motion to Supplement the Record on Appeal” to include a Notice of

Voluntary Dismissal Without Prejudice of Count 2 of the Town’s complaint; the State

filed a response to this motion on 18 June 2015. In addition, on 19 August 2015, the

Town of Boone filed a “Motion to Supplement the Record with Final Judgment of

Three-Judge Panel and to Expedite Settlement of the Record on Appeal”1 and a

“Motion to Submit the Case for Oral Argument Under the Summary Judgment

Standard.” The State filed responses to these 19 August 2015 motions on 24 August

2015. Oral arguments were held before this Court on 6 October 2015.

       According to the plain text of the statute under which appeal has been sought,

N.C.G.S. § 7A-27(a1) (2014), appeal of right lies directly to this Court only “from [an]

order or judgment of a court, either final or interlocutory, that holds that an act of

the General Assembly is facially” unconstitutional.          (Emphasis added.)          Here,

however, neither December order included such a holding: The order denying the

State’s and the County’s motions to dismiss did not provide the panel’s rationale for

denying the motions, and the order issuing the preliminary injunction concluded that

the Town “has shown a likelihood of success on the merits of its case.” We therefore

dismiss the State’s appeal of the December 2014 orders with prejudice.

       Because the State’s appeal from the December orders of the panel was not

statutorily authorized, that appeal did not divest the three-judge panel of jurisdiction

to enter the July 2015 order granting summary judgment in favor of the Town of



       1Although these motions were included in a single filing by the Town, they are
treated as separate motions and dealt with as such in this order.

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Boone. See, e.g., Veazey v. City of Durham, 231 N.C. 357, 363-64, 57 S.E.2d 377, 382-

83 (1950); cf. N.C.G.S. § 1-294 (2013) (stating that a “perfected” appeal “stays all

further proceedings in the court below upon the judgment appealed from, or upon the

matter embraced therein”). Unlike the December orders, the July order states that

the Boone Act, which “revo[ked] . . . the Town of Boone’s power of extraterritorial

jurisdiction . . . is unconstitutional pursuant to the prohibition on local acts contained

in Article II, Section 24 of the North Carolina Constitution.” Therefore, the July order

would appear to be appealable by right to this Court under N.C.G.S. § 7A-27(a1).

Nonetheless, our consideration of an appeal from the 29 July 2015 order would be

premature at this time because, inter alia, the parties have yet to settle and file an

appropriate record on appeal.        Therefore, we dismiss the Town’s motion to

supplement the record, filed 19 August 2015, without prejudice to the parties’ rights

to perfect an appeal of the July order, to settle and file the record on appeal, and to

file appropriate briefs in accordance with the North Carolina Rules of Appellate

Procedure. The time periods within which to proceed with the record on appeal shall

begin on the date of this order.

      The Town of Boone’s 31 March 2015 “Motion to Dismiss Appeal” is ALLOWED

and the appeal from the orders entered on 29 December 2014 is DISMISSED with

prejudice; the portion of the Town’s 19 August 2015 motion which seeks to

supplement the record with the final judgment of the three-judge panel is

DISMISSED without prejudice to the parties’ rights to perfect an appeal of the panel’s

July order in accordance with this order; the Town’s 16 June 2015 “Motion to


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Supplement the Record on Appeal,” the portion of its 19 August 2015 motion which

seeks to expedite settlement of the record on appeal, and its 19 August 2015 “Motion

to Submit the Case for Oral Argument Under the Summary Judgment Standard” are

DISMISSED AS MOOT.

      By order of the Court in Conference, this 5th day of November, 2015.



                                                  ________________________________

                                                          For the Court



             WITNESS my hand and the seal of the Supreme Court of North
Carolina, this the 5th day of November, 2015.

                                              CHRISTIE S. CAMERON ROEDER
                                              Clerk of the Supreme Court

                                              __________________________
                                              Assistant Clerk




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