              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-433

                              Filed: 19 December 2017

Dare County, No. 15-CVS-327

JERRY R. TILLETT, Plaintiff,

             v.

TOWN OF KILL DEVIL HILLS, a Body Politic and Municipal Corporation,
Defendant.


      Appeal by plaintiff and defendant from order entered 14 November 2016 by

Judge Jeffery B. Foster in Dare County Superior Court. Heard in the Court of Appeals

18 October 2017.


      Nexsen Pruet PLLC, by Norman W. Shearin, for plaintiff-appellee and cross-
      appellant.

      Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog, Jr., for defendant-
      appellant and cross-appellee.


      DIETZ, Judge.


      Judge Jerry Tillett brought suit under our State’s Public Records Act to compel

the Town of Kill Devil Hills to produce documents that he contends are public records

subject to disclosure under the Act. The trial court reviewed these documents in

camera—meaning in private, outside the presence of the parties and the public. The

court determined that two documents were subject to disclosure and ordered them to

be produced under seal to Judge Tillett. Both parties appealed.
                        TILLETT V. TOWN OF KILL DEVIL HILLS

                                  Opinion of the Court



       On appeal, the Town argues that the trial court lacked subject matter

jurisdiction to enter the challenged order. We agree. The applicable section of the

Public Records Act states that a litigant “may apply to the appropriate division of the

General Court of Justice for an order compelling disclosure or copying, and the court

shall have jurisdiction to issue such orders if the person has complied with G.S. 7A-

38.3E.” N.C. Gen. Stat. § 132-9(a) (emphasis added). As explained in more detail

below, the General Assembly’s use of the word “jurisdiction” demonstrates that it

intended for Section 132-9(a) to impose a jurisdictional rule, rather than an ordinary

procedural rule.

       Judge Tillett concedes that he did not satisfy the requirements of N.C. Gen.

Stat. § 132-9(a) because he failed to initiate mediation within 30 days of the Town’s

filing of a responsive pleading, as required by N.C. Gen. Stat. § 7A-38.3E.

Accordingly, we must vacate the trial court’s order for lack of subject matter

jurisdiction.

                          Facts and Procedural History

       In early 2015, Judge Jerry Tillett requested various public records from the

Town of Kill Devil Hills through the provisions of our State’s Public Records Act. The

Town produced some records but withheld others, arguing that they fell within

various exceptions to the public records laws. Judge Tillett then sued the Town to

compel disclosure of the remaining, undisclosed records.



                                         -2-
                        TILLETT V. TOWN OF KILL DEVIL HILLS

                                   Opinion of the Court



      The applicable provisions of the public records laws required Judge Tillett to

“initiate mediation . . . no later than 30 days from the filing of responsive pleadings

with the clerk in the county where the action is filed.” N.C. Gen. Stat. § 7A-38.3E(b).

Judge Tillett did not initiate mandatory mediation within 30 days after the Town

filed its answer.

      Ultimately, after a hearing and an opportunity to review the disputed

documents in camera, the trial court ordered the Town to produce copies of two of the

challenged documents, but also ordered that the documents must remain under seal

and not be shared with the public generally. Both parties timely appealed the trial

court’s order.

                                       Analysis

      We begin our analysis with the Town’s argument that the trial court lacked

subject matter jurisdiction to adjudicate this dispute. Subject matter jurisdiction is a

question of law that this Court reviews de novo. McKoy v. McKoy, 202 N.C. App. 509,

511, 689 S.E.2d 590, 592 (2010).

      The Public Records Act provides that a litigant seeking to challenge the denial

of access to public records “may apply to the appropriate division of the General Court

of Justice for an order compelling disclosure or copying, and the court shall have

jurisdiction to issue such orders if the person has complied with G.S. 7A-38.3E.” N.C.

Gen. Stat. § 132-9(a) (emphasis added).



                                          -3-
                          TILLETT V. TOWN OF KILL DEVIL HILLS

                                    Opinion of the Court



      Section 7A-38.3E of the General Statutes is titled “Mediation of public records

disputes” and requires a party who files a civil action under the Public Records Act

to “initiate mediation . . . no later than 30 days from the filing of responsive pleadings

with the clerk in the county where the action is filed.” N.C. Gen. Stat. § 7A-38.3E(b).

      The General Assembly’s use of the phrase “shall have jurisdiction to issue such

orders” in Section 132-9(a) is crucial to our analysis. Broadly speaking, there are two

types of rules governing the manner in which legal claims are pursued in court:

jurisdictional rules, which affect a court’s power to hear the dispute, and procedural

rules, which ensure that the legal system adjudicates the claim in an orderly way.

See Dolan v. United States, 560 U.S. 605, 610 (2010).

      The    distinction    is   important    because,     unlike   ordinary   procedural

requirements, jurisdictional requirements cannot be waived or excused by the court.

In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). Instead, if a litigant fails

to satisfy a jurisdictional requirement, the court lacks the power to adjudicate the

dispute at all—rendering any action taken in the case a nullity. State ex rel. Hanson

v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952). Moreover, unlike most

procedural violations, a defect in subject matter jurisdiction can be raised at any time,

even for the first time on appeal. Wood v. Guilford County, 355 N.C. 161, 164, 558

S.E.2d 490, 493 (2002).




                                             -4-
                        TILLETT V. TOWN OF KILL DEVIL HILLS

                                   Opinion of the Court



      Ordinarily, courts might consider a mediation requirement like the one

contained in N.C. Gen. Stat. § 7A-38.3E(b) to be procedural, rather than

jurisdictional. Dolan, 560 U.S. at 610. As a result, a court could excuse noncompliance

in certain circumstances—for example, by invoking equitable doctrines such as

estoppel or waiver.

      But courts have long recognized that a legislative body is “free to attach the

conditions that go with the jurisdictional label to a rule that [courts] would prefer to

call a claim-processing rule.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). This is

so because it is the legislative branch—in our case, the General Assembly—that

establishes the jurisdiction of trial courts over these types of claims. See Bullington

v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941); N.C. Const. Art. IV, Section 12.

Simply put, even if a rule in a proceeding like this one appears to be merely

procedural, courts must treat it as jurisdictional if the General Assembly has given a

“clear indication that the provision was meant to carry jurisdictional consequences.”

Henderson, 562 U.S. at 429.

      That is the case here. The Public Records Act states that a litigant “may apply

to the appropriate division of the General Court of Justice for an order compelling

disclosure or copying, and the court shall have jurisdiction to issue such orders if the

person has complied with G.S. 7A-38.3E.” N.C. Gen. Stat. § 132-9(a) (emphasis

added). Thus, the General Assembly has given the courts a “clear indication” that the



                                          -5-
                         TILLETT V. TOWN OF KILL DEVIL HILLS

                                  Opinion of the Court



mandatory mediation requirements of Section 7A-38.3E are jurisdictional

requirements that must be satisfied for the courts to have the power to adjudicate the

dispute. Among these jurisdictional requirements is Section 7A-38.3E(b), which

provides that “[s]ubsequent to filing a civil action under Chapter 132 of the General

Statutes, a person shall initiate mediation pursuant to this section. Such mediation

shall be initiated no later than 30 days from the filing of responsive pleadings with

the clerk in the county where the action is filed.” N.C. Gen. Stat. § 7A-38.3E(b).

      We therefore hold that, in order to confer jurisdiction upon the trial court in a

Public Records Act suit, the plaintiff must initiate mediation within 30 days of the

filing of the responsive pleading as required by N.C. Gen. Stat. § 7A-38.3E(b). Judge

Tillett concedes that he did not initiate mediation within 30 days after the Town filed

its responsive pleading. Thus, we agree with the Town that the trial court lacked

jurisdiction to adjudicate this Public Records Act dispute, and we vacate the trial

court’s order. We note, however, that this ruling does not prevent Judge Tillett, or

other parties who seek access to these records, from pursuing further Public Records

Act requests and properly invoking the trial court’s jurisdiction should the Town

again refuse to produce the records.

                                       Conclusion

      The trial court lacked subject matter jurisdiction to enter the challenged order.

That order is vacated.



                                          -6-
             TILLETT V. TOWN OF KILL DEVIL HILLS

                      Opinion of the Court



VACATED.

Judges ELMORE and INMAN concur.




                             -7-
