Top NC court will not take second look at Kinston racial discrimination claim

Two Kinston men who say the city condemned their properties in 2017 based on a racially discriminatory process will not get a second review of the case from the North Carolina Supreme Court. The court split, 5-2, Friday on hearing the case a second time.

The court ruled unanimously In June 2024 that Joseph Askew and Curtis Washington could move forward with their case against Kinston city officials. But a unanimous state Court of Appeals panel issued a ruling two months later against Askew and Washington.

The state Supreme Court issued orders Friday allowing Kinston’s motion to dismiss the latest appeal from Askew and Washington. Justices split, 5-2, in a separate order rejecting the two plaintiffs’ petition to review the Appeals Court’s decision. Democratic Justices Anita Earls and Allison Riggs would have granted the petition.

Kinston officials argued in a November court filing that Askew and Washington waited one day too long to file a notice of appeal in the case. City attorneys described that delay as a “non-excusable, jurisdictional defect” that required the Supreme Court to dismiss the appeal.

The Appeals Court issued its August 2024 decision less than two months after a unanimous state Supreme Court revived Askew v. City of Kinston. Supreme Court justices had rejected the Appeals Court’s first decision in the case.

“Direct claims against the State arising under the North Carolina Constitution are permitted only ‘in the absence of an adequate state remedy,’ and where an adequate state remedy exists, those direct constitutional claims must be dismissed,” wrote Appeals Court Judge Allegra Collins in the latest ruling, citing a 1992 precedent case called Corum. “Here, Plaintiffs filed direct claims alleging that Defendant violated their State constitutional rights to substantive due process and equal protection by condemning and marking for demolition three properties in Kinston, North Carolina.”

“The trial court dismissed those claims on summary judgment,” Collins explained. “This Court vacated the summary judgment order for lack of subject-matter jurisdiction. The North Carolina Supreme Court vacated this Court’s opinion, opining that ‘[t]he prospect of agency relief goes to an element of a Corum cause of action’ rather than the court’s jurisdiction, and remanded the case for ‘a standard de novo review of the merits of the trial court’s summary judgment order.’”

“On remand, we hold that an adequate state law remedy exists for each of Plaintiffs’ distinct Corum claims, and we therefore affirm the trial court’s summary judgment order dismissing the claims,” Collins added.

Askew and Washington could have taken steps that would have addressed their concerns about substantive due process, Collins wrote.

“Had Plaintiffs petitioned the superior court for writ of certiorari and presented sufficient evidence to demonstrate that Defendant’s actions were arbitrary, the superior court could have enjoined Defendant from demolishing Plaintiffs’ properties and remanded the case to the city council with instructions to remove Plaintiffs’ properties from the list for demolition,” the Appeals Court opinion explained. “Thus, the administrative process provides Plaintiffs the possibility of relief under their circumstances and is therefore adequate.”

Appellate judges reached a similar conclusion about Askew and Washington’s equal protection claims. If the plaintiffs had proved to a judge that Kinston’s condemnation decisions “were impermissibly discriminatory, the superior court could have remanded the case with an order to direct the council to implement a nondiscriminatory process for selecting properties for condemnation.”

Judges John Arrowood and Michael Stading joined Collins’ opinion.

“In essence the Court of Appeals reissued the same decision that was unanimously reversed by the Supreme Court,” lawyer Ralph Bryant wrote on behalf of Askew and Washington in an October 2024 petition to the state’s high court.

The state Supreme Court ruled in June 2024 that Askew and Washington deserved another review of their case.

Askew and Washington challenged the process Kinston used to select properties targeted for condemnation. Their lawsuit accused the city of practicing racial discrimination.

A trial judge ruled in favor of Kinston. The state Court of Appeals initially followed suit.

Earls’ Supreme Court opinion rejected the lower courts’ reasoning. She focused on the 1992 Corum precedent.

“In Corum v. Univ. of N.C., this Court ‘recognized a direct action under the State Constitution against state officials for violation of rights guaranteed by the Declaration of Rights,’’  Earls wrote. “The question in this case is whether plaintiffs bringing Corum claims must exhaust administrative remedies before entering the courthouse doors.”

“The Court of Appeals said yes. Linking administrative exhaustion to subject-matter jurisdiction, it held that a court cannot hear a Corum suit unless the plaintiff first depleted all agency relief,” the opinion continued.

“We reject that approach,” Earls wrote. “Exhaustion of administrative remedies does not dictate jurisdiction over Corum claims. That authority flows from the Constitution itself. To ensure that North Carolinians ‘may seek to redress all constitutional violations,’ Corum creates a unique path into court when existing channels fail to offer an adequate remedy.”

Challenging the condemnations would not address the plaintiffs’ constitutional claims, Earls explained.

“According to plaintiffs, the City’s discriminatory and arbitrary decisions violated the equal protection and due process guarantees of North Carolina’s Constitution. That meant, plaintiffs continued, that the administrative process could not offer an ‘adequate remedy at state law,’” Earls wrote.

Askew and Washington put forward two separate Corum claims, Earls wrote. “The Court of Appeals, however, collapsed plaintiffs’ claims into a monolith without examining the contours, injuries, and theories underpinning each. Plaintiffs brought two Corum suits—one based on substantive due process, the other on equal protection. Both are rooted in Article I, Section 19, often called the Law of the Land Clause.”

Stopping the condemnations would address only the substantive due process claim, Earls wrote.

“For plaintiffs’ equal protection claim, … the constitutional violation is Kinston’s alleged discrimination based on race,” she explained. “That harm springs from plaintiffs’ right to evenhanded treatment from the government. Plaintiffs’ ultimate complaint, in other words, is not about what happens to their land but the alleged racial targeting that tainted the proceedings from the start.”

“If plaintiffs carry the day, their equal protection claim contemplates a distinct form of relief — equal treatment from Kinston, not a specific outcome as to their properties,” Earls added. “Said differently, this claim focuses on the journey — how the City chose properties — rather than the destination — whether Kinston may ultimately condemn and demolish plaintiffs’ lots. When “the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment.’”

Addressing the equal protection claim might not save the targeted properties. “For instance, if plaintiffs come forward with enough evidence to prove that Kinston chose properties using impermissible race-based criteria in violation of the Equal Protection Clause, the appropriate remedy would be to prohibit the City from engaging in race-based discrimination. Even then, plaintiffs’ properties might ultimately be selected for condemnation using race-neutral criteria,” Earls wrote.