The N.C. Court of Appeals has agreed to block further pretrial discovery in a lawsuit challenging the state’s Opportunity Scholarship Program. The court granted a request from parents defending the school choice program.

Scholarship defenders had complained about the legal tactics employed by plaintiffs challenging OSP. Plaintiffs’ lawyers had been engaging in “extensive,” “burdensome, ” and “voluminous third-party discovery into the religious beliefs and practices of dozens of private religious schools, ” according to one court filing.

Discovery refers to the exchange of information between parties in a legal proceeding. It helps determine the evidence that can be used during a trial.

All further discovery proceedings in the trial court are hereby stayed,” according to an order issued Thursday, March 24. The stay in the case titled Kelly v. State of N.C. lasts until the Appeals Court makes further rulings.

The court’s latest order arrived two days after legislative leaders raised concerns about the discovery process. Lawmakers lodged a rare objection to giving scholarship opponents extra time to prepare their legal briefs.

“As a normal course of practice, counsel for [legislative leaders] routinely grant requests for extensions of time to file briefs for various reasons, out of professional courtesy to the schedules of fellow members of the bar,” wrote attorney Matthew Tilley. “However, in this instance, they feel compelled to file this Response in Opposition to Plaintiff-Appellees’ Motion for an additional 21 days … because Plaintiffs are unwilling to stay their onerous discovery in the meantime.”

“If Plaintiffs’ counsel are truly under a time crunch to finish their work, then they should have granted Legislative-Appellants’ minor request that they not take depositions during their busy legal schedules. They refused; therefore, this Court should not give them additional time that they should have given themselves.”

The Appeals Court is scheduled to decide whether the lawsuit will stay with Wake County Superior Court Judge Bryan Collins. Appellate judges could transfer the case instead to a three-judge panel.

“This appeal is about who will decide whether or not to take away educational scholarships from thousands of low-income North Carolina children: a single trial court judge or a group of three judges,” according to a motion filed by Marie Miller of the Institute for Justice. IJ represents parents defending OSP.

“To avoid a single judge shutting down an entire statewide program based on a mistaken belief that it is unlawful, the North Carolina General Assembly decided that facial challenges to state laws ‘shall be heard and determined by a three-judge panel,’” Miller added. “The trial court below, however, refused to transfer this lawsuit to a three-judge panel, even though the lawsuit seeks to dismantle the Opportunity Scholarship Program ‘in its entirety.’”

Discovery should not resume until the Appeals Court decides which court will proceed with the case, Miller argued.

“[A]ppeals like this about who should ‘hear and determine’ a case inherently embrace things like overseeing discovery,” Miller wrote. “It therefore makes sense to stay discovery proceedings while this Court resolves who should oversee them. Second, threshold questions about this case — including the legal sufficiency of the pleadings of many or all of Appellees’ claims as well as the scope of discovery — cannot be answered until the pending appeal resolves which tribunal should answer those questions.”

“Most or all of Appellees’ ongoing, voluminous discovery could turn out to be unnecessary, wasting not only the parties’ time and resources, but also those of the dozens of private schools whose religious beliefs and practices are the primary target of Appellees’ discovery,” Miller added.

In a separate affidavit, Miller documented the extent of voucher opponents’ efforts to dig up information from private schools participating in the Opportunity Scholarship Program.

“I am aware that Plaintiffs have issued a total of 48 third-party subpoenas (36 document subpoenas and 12 subpoenas for testimony), taken nine third-party depositions, scheduled an additional three third-party depositions, and issued five requests for informal discovery, on a total of 39 private schools,” Miller wrote.

The Opportunity Scholarship Program now helps more than 20,000 students from low-income families enroll in more than 500 private schools. With a larger available scholarship and expanded income eligibility in 2022-23, the program has seen about 9,500 new applicants for the coming school year. That’s according to the group Parents for Educational Freedom in North Carolina.

The Appeals Court’s eventual choice between Collins or a three-judge panel depends on the nature of the lawsuit.

Lead plaintiff Tamika Walker Kelly is the head of the N.C. Association of Educators, the state affiliate of the National Education Association teachers union.  Teachers unions have been among the most vocal opponents of school choice programs like Opportunity Scholarships.

Kelly and fellow critics argue that the Opportunity Scholarship Program is unconstitutional as applied to the circumstances of particular plaintiffs in the case. Scholarship defenders counter that the lawsuit is not actually an “as-applied” constitutional challenge. In contrast, it amounts to a “facial” challenge because it challenges the constitutionality of the scholarship law “on its face.”

State law requires “facial” challenges to be heard by three-judge panels appointed by the chief justice of the N.C. Supreme Court.

The Opportunity Scholarship Program already has survived one facial challenge. In 2015 the state Supreme Court ruled, 4-3, that the program could proceed.