Legislative defenders of North Carolina’s Opportunity Scholarship Program are asking the N.C. Court of Appeals to block “burdensome” trial court activity in a lawsuit challenging the program.

They say trial court discovery should remain on hold until the Appeals Court resolves other issues in the case. In a lawsuit, “discovery” refers to the exchange of information and facts in a case. Parties in the suit must hand over information that could be used as evidence in a trial.

Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, argue that appellate court rules stand against any trial court activity now in the case titled Kelly v. State of N.C.

“Despite this rule, proceedings have continued below, including expensive and time-consuming discovery that the Legislative Intervenor-Defendants-Appellants ask to be stayed, pending this Court’s consideration of their appeal,” according to a motion filed by Matthew Tilley, representing Berger and Moore.

“The appeal before this Court presents a fundamental question that will decide, first and foremost, whether the Plaintiffs’ Complaint — which challenges the constitutionally of the Opportunity Scholarship as a whole, seeks a statewide injunction against the OSP, and is not based on any facts unique to the Plaintiffs’ individual cases — asserts a facial or as-applied challenge,” Tilley added. “This is a critical question, as it will determine which facts, if any, regarding the OSP’s implementation are relevant to this matter.”

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 current appeal involves the question of transferring the case from a single Wake County judge to a three-judge Superior Court panel. “[T]he issue on appeal will determine whether the court below has authority to continu[e to] hear the case in the first place,” Tilley wrote.

Plaintiffs led by Tamika Walker Kelly of the N.C. Association of Educators want to dismantle Opportunity Scholarships statewide. “Plaintiffs have continued to propound burdensome discovery, including numerous redundant depositions and document requests,” Tilley wrote. “So far Plaintiffs have deposed nine administrators of schools who are nonparties to this case. Seventeen nonparty schools have also produced documents in response to … subpoenas that Plaintiffs have issued. And before this appeal was filed, Plaintiffs served the State Defendants with discovery requests.”

“But the Plaintiffs are not stopping there,” Tilley warned. “Within the last several weeks, they served subpoenas on nineteen new nonparty schools requesting documents (they served five schools on February 18, 2022, and fourteen on February 22, 2022). Three of the nonparty schools served on February 22 with document subpoenas were also served with notices of deposition that the Plaintiffs plan to take in early April. The Plaintiffs also sent letters on February 18, 2022, to two additional new nonparty schools asking them to confirm that information on their website was current in order to avoid being subpoenaed.”

“Legislative Intervenors-Defendants-Appellants submit that this and other further discovery should be postponed until the appropriate court can rule on its appropriateness and its limits,” Tilley added.

The decision about the three-judge panel will have a major impact on how the case proceeds, according to lawmakers’ motion. “If this Court confirms that Plaintiffs have, indeed, asserted a facial challenge, much, if not all, of the discovery they have propounded will be unnecessary, as it will be largely irrelevant to the legal questions the court must decide,” Tilley wrote.

Once the case reaches a three-judge panel, lawmakers will ask that panel to throw the lawsuit out, Tilley wrote. That’s another reason to place trial court discovery on hold. “Defendants should not be subject to this onerous burden — much less nonparties — while they wait to get to the correct tribunal.”

The decision about whether the case should proceed before a single judge or a three-judge panel depends on the nature of the lawsuit.

Kelly and her 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.