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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
BEAUFORT COUNTY BOARD OF EDUCATION, Plaintiff, v. BEAUFORT COUNTY
BOARD OF COMMISSIONERS, Defendant
Filed: 19 June 2007
1. Appeal and Error_-appealability--mootness--capable of repetition yet evading
Although the pertinent gag order was lifted and the court proceedings were completed
before this controversy could be fully resolved by the Court of Appeals, Media General's appeal
from the gag order is not moot, because: (1) a reasonable likelihood remains that the trial court
might attempt to repeat the conduct at issue in this case and subject Media General to the same or
a similar action in another case; and (2) the trial court's failure to rule upon Media General's
motion, the short duration of the trial, and the elapsed time to obtain appellate review shows
Media General's allegations are capable of repetition yet evading review.
2. Constitutional Law-_right to free speech_-prior restraints--gag order--failure to
enter findings on required standards
The trial court erred by entering and then failing to dissolve a gag order prohibiting the
parties and their attorneys from communicating with the media during civil litigation between
two publically elected bodies disputing the adequacy of funding for the public school system,
because: (1) the trial court neglected to enter findings of fact that either a clear threat existed to
the fairness of the trial, that the threat was posed by the publicity to be restrained, or that it
considered less restrictive alternatives as required by Sherrill, 130 N.C. App. 711 (1998); and (2)
the gag order was not reduced to writing, signed by the judge, or filed with or entered by the
Clerk of Superior Court.
3. Constitutional Law-_right to free speech_-prior restraints--gag order--right of
access to civil judicial proceeding or to judicial record in proceeding
The trial court did not err by failing to rule upon Media General's motion under N.C.G.S.
§ 1-72.1 to dissolve a gag order that prohibited either party or their attorneys from talking to the
press, because: (1) the statute applies to a person asserting a right of access to a civil judicial
proceeding or to a judicial record in that proceeding, and Media General admits it was not denied
a right of access to a civil judicial proceeding or to any judicial record in that proceeding; (2) the
gag order prevented the parties and their attorneys from communicating with the press, not from
attending the trial or gaining access to any proceeding or record in this matter; (3) Media General
stipulated that it was free to attend and did attend the trial of this matter and freely accessed any
public judicial records of this proceeding; and (4) under the facts and issues of this case, it was
unnecessary to determine the outer ranges of what constitutes access to a civil judicial
Appeal by movant Media General Operations, Inc. from oral
order rendered 19 July 2006 by Judge William C. Griffin, Jr., in
Beaufort County Superior Court. Heard in the Court of Appeals 23
Schwartz & Shaw, P.L.L.C., by Richard A. Schwartz, Brian C.
Shaw, and Rachel B. Hitch, for plaintiff-appellee.
No brief filed for defendant-appellee.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mark
J. Prak, Charles E. Coble, and Elizabeth E. Spainhour; and The
Bussian Law Firm, PLLC, by John A. Bussian, for movant-
Media General Operations, Inc. (Media General) appeals from
an oral order prohibiting the parties and their attorneys from
communicating with the media (the gag order) during civil
litigation between the Beaufort County Board of Education (the
School Board) and the Beaufort County Board of Commissioners (the
Commissioners). We vacate the gag order.
Media General operates WNCT-TV, a television station engaged
in gathering and broadcasting news. WNCT-TV is located in
Greenville and its broadcast coverage area includes Beaufort
On 14 July 2006, the School Board filed a complaint in the
Beaufort County Superior Court against the Commissioners. The
complaint alleges the Commissioners deliberately underfunded the
public school system in the Beaufort County budget ordinance for
the fiscal year 2006-2007, and the revenues it appropriated to the
school system were based on the personal demands of various . . .
Commissioners and in retaliation against the [School Board] for its
refusal to capitulate to funding threats made by various individual. . . Commissioners and combinations of Commissioners acting in
concert. The School Board demanded the trial court order the
Commissioners to appropriate the amount of money needed to maintain
the public school system from financial resources under the
WNCT-TV sought to gather information and report news to the
public regarding the funding dispute between the School Board and
the Commissioners. Prior to trial, on 19 July 2006, the trial
court orally rendered the gag order ex mero motu, which forbade the
parties and their attorneys from communicating with members of the
news media regarding the litigation. The following day, on 20 July
2006, Media General moved for the trial court to determine its
right of access to the courtroom proceedings, the parties, and
their attorneys and sought dissolution of the gag order.
On Friday, 21 July 2006, after the jury selection was
completed and motions in limine had been heard, the trial court
heard arguments from Media General's counsel on its motion.
Following the arguments, the trial court stated it would consider
Media General's motion over the weekend. Opening statements and
presentation of evidence began on the morning of 24 July 2006 and
continued throughout the week. The trial court failed to rule on
Media General's motion prior to proceeding with the trial.
On 26 July 2006, Media General filed with this Court a
Petition for Writs of Mandamus and Prohibition and a Petition for
Writ of Supersedeas and Motion for Temporary Stay. On 4 August
2006, Media General filed with this Court a Supplemented Petitionfor Writs of Mandamus and Prohibition and a Petition for Writ of
Certiorari. By order dated 23 August 2006, this Court denied the
Petition for Writs of Mandamus and Prohibition, dismissed as moot
the Petition for Writ of Supersedeas, and dismissed the Petition
for Writ of Certiorari.
On 27 July 2006, the trial court dissolved the gag order after
the matter had been submitted to the jury and stated, Let the
record show that the Court now terminates any restrictions that may
have been imposed on anybody about speaking to anybody. Media
Media General argues the trial court erred by: (1) entering
and failing to dissolve the unconstitutional gag order; (2) denying
its motion pursuant to N.C. Gen. Stat. § 1-72.1 and allowing the
gag order to remain in place for the duration of the trial; and (3)
violating the procedural requirements of N.C. Gen. Stat. § 1-72.1.
 The trial of this matter has concluded and Media General
cannot obtain the relief it sought through the dissolution of the
gag order. When the trial court dissolved the gag order after
trial, it stated, [t]hat makes [Media General's] suit moot. The
threshold question is whether Media General's appeal is moot and
should its appeal be dismissed.
Our Supreme Court has stated, Whenever, during the course of
litigation it develops . . . that the questions originally in
controversy between the parties are no longer at issue, the caseshould be dismissed, for courts will not entertain or proceed with
a cause merely to determine abstract propositions of law. In re
Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert.
denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979) (citations omitted).
Our Courts have long recognized an exception to dismissals for
mootness and have held it is proper for the appellate courts to
hear appeals where the issues are capable of repetition, yet
evading review. Boney Publishers, Inc. v. Burlington City
Council, 151 N.C. App. 651, 654, 566 S.E.2d 701, 703-04 (citing
Crumpler v. Thornburg, 92 N.C. App. 719, 723, 375 S.E.2d 708, 711,
disc. rev. denied, 324 N.C. 543, 380 S.E.2d 770 (1989)), disc. rev.
denied, 356 N.C. 297, 571 S.E.2d 221 (2002); see Spencer v. Kemna,
523 U.S. 1, 17, 140 L. Ed. 2d 43, 56 (1998) (The
capable-of-repetition exception to mootness applies where: (1)
the challenged action [is] in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will] be
subject to the same action again. (quotation omitted)).
This Court adopted these factors and has stated:
There are two elements required for the
exception to apply: (1) the challenged action
[is] in its duration too short to be fully
litigated prior to its cessation or
expiration, and (2) there [is] a reasonable
expectation that the same complaining party
would be subjected to the same action again.
Boney Publishers, Inc., 151 N.C. App. at 654, 566 S.E.2d at 703-04.
In Boney Publishers, Inc., the plaintiff, a newspaper
publisher, alleged the Burlington City Counsel had violated theOpen Meetings Law and Public Records Act, and sought declaratory
and injunctive relief. 151 N.C. App. at 652, 566 S.E.2d at 702-03.
We stated the appeal was technically moot because the information
sought by plaintiff ha[d] been fully disclosed. Id. at 654, 566
S.E.2d at 703. However, this Court applied an exception to
dismissing the plaintiff's appeal as moot because: (1) all the
requested information was disclosed in open session well before the
controversy could be fully litigated and (2) there was a reasonable
likelihood that the defendant, in considering the acquisition of
other property for municipal purposes, could repeat the challenged
conduct and subject the plaintiff to the same action and
restrictions. Id. at 654, 566 S.E.2d at 704.
Here, as in Boney Publishers, Inc., the gag order was lifted
and the court proceedings completed before this controversy could
be fully resolved. The trial court and this Court had not ruled
upon Media General's motion and appeal prior to the completion of
the trial. A reasonable likelihood remains that the trial court
might attempt to repeat the conduct at issue in this case and
subject Media General to the same or a similar action in another
case. Due to the trial court's failure to rule upon Media
General's motion, the short duration of the trial, and the elapsed
time to obtain appellate review, Media General's allegations are
capable of repetition, yet evading review and are properly before
this Court. Id. at 651, 566 S.E.2d at 703-04.
IV. Constitutionality of the Gag Order
 Media General argues the trial court erred by entering and
then failing to dissolve the unconstitutional gag order. We agree.
A. Standard of Review
It is well settled that de novo review is ordinarily
appropriate in cases where constitutional rights are implicated.
Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C.
343, 348, 543 S.E.2d 844, 848 (2001). We review this issue de
In Branzburg v. Hayes, the United States Supreme Court stated,
We do not question the significance of free speech, press, or
assembly to the country's welfare. Nor is it suggested that news
gathering does not qualify for First Amendment protection; without
some protection for seeking out the news, freedom of the press
could be eviscerated. 408 U.S. 665, 681, 33 L. Ed. 2d 626, 639
Similarly, the United States Court of Appeals for the Fourth
Circuit has held, There are 'First Amendment interests in
newsgathering.' Food Lion, Inc. v. Capital Cities/ABC Inc., 194
F.3d 505, 520 (4th Cir. 1999) (quoting In re Shain, 978 F.2d 850,
855 (4th Cir. 1992)).
The United States Court of Appeals for the Fifth Circuit has
The first amendment's broad shield for freedom
of speech and of the press is not limited to
the right to talk and to print. The value of
these rights would be circumscribed [if] those
who wish to disseminate information [were]denied access to it, for freedom to speak is
of little value if there is nothing to say.
In re Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982).
In Sherrill v. Amerada Hess Corp., this Court discussed
controlling precedents concerning gag orders and unanimously
The issuance of gag orders prohibiting
participants in judicial proceedings from
speaking to the public or the press about
those proceedings is a form of prior
restraint. 1 Rodney A. Smolla, Smolla and
Nimmer on Freedom of Speech § 15:41 (1996)
[hereinafter 1 Smolla and Nimmer]. The phrase
prior restraint refers to judicial orders
or administrative rules that operate to forbid
expression before it takes place. Id. at §
15:1. Prior restraints are not
unconstitutional per se, Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 558,
43 L. Ed. 2d 448, 459 (1975), but are
presumptively unconstitutional as violative of
the First Amendment, New York Times Co. v.
United States, 403 U.S. 713, 714, 29 L. Ed. 2d
822, 824-25 (1971); State v. Williams, 304
N.C. 394, 403, 284 S.E.2d 437, 444 (1981),
cert. denied, 456 U.S. 832, 72 L. Ed. 2d 450
(1982); Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 558, 49 L. Ed. 2d 683, 697 (1976),
and are repugnant to the basic values of an
open society, 1 Smolla and Nimmer § 15:10.
130 N.C. App. 711, 719, 504 S.E.2d 802, 807 (1998).
As prior restraints, gag orders are subject to strict and
rigorous scrutiny under the First Amendment. Id. The party
asserting validity of the order must establish: (1) a clear
threat to the fairness of the trial; (2) such threat is posed by
the actual publicity to be restrained; and (3) no less
restrictive alternatives are available to rebut the presumptive
unconstitutionality of gag orders. Id. at 719-20, 504 S.E.2d at807-08. Furthermore, the record must reflect findings [of fact]
by the trial court that it has considered each of the above factors
. . . and contain evidence to support [each] such finding. Id.
at 720, 504 S.E.2d at 808 (citing Nebraska Press Ass'n, 427 U.S. at
563, 49 L. Ed. 2d at 700; Gulf Oil Co. v. Bernard, 452 U.S. 89,
101-02, 68 L. Ed. 2d 693, 703-04 (1981)). The trial court's
findings of fact must support its conclusions of law in order to
enter a lawful order. Blanton v. Blanton, 40 N.C. App. 221, 225,
252 S.E.2d 530, 533 (1979). Finally, [the gag order] must comply
with the specificity requirements of the First Amendment.
Sherrill, 130 N.C. App. at 720, 504 S.E.2d at 808 (citing Nebraska
Press Ass'n, 427 U.S. at 568, 49 L. Ed. 2d at 703).
In Sherrill, the trial court entered a gag order that
prohibited the parties to a civil proceeding and their attorneys
from communicating with the public and the press about the case.
130 N.C. App. at 718, 504 S.E.2d at 806. In support of this
directive, the trial court found as a fact, [T]hat communications
concerning the [a]ctions with media representatives and with other
persons not parties to this action by the parties and their counsel
. . . will be detrimental to the fair and impartial administration
of justice in such [a]ctions. Id. at 718, 504 S.E.2d at 807. The
plaintiffs argued the gag order constituted an unconstitutional
prior restraint of their First Amendment right to free speech. Id.
A unanimous panel of this Court reversed the gag order and held:
Although the record reflects a finding that
communications concerning the action by the
parties to persons not involved in the suit
would be detrimental to the fair andimpartial administration of justice, there is
no evidence in the record to support this
finding. Furthermore, the trial court made no
findings reflecting the consideration of less
Id. at 720, 504 S.E.2d at 808.
Here, the entirety of the trial court's consideration and
rendering of the gag order is contained in the transcript:
The Court: Let me see the lawyers back one
moment. Let me see you and Mr. Schwartz
again, please. I'm going to reconvene court
[Mr. Schwartz, Ms. Edwards, Mr. Yarborough,
and Mr. Mayo are present in the courtroom; the
prospective jury panel is not present in the
The Court: Gag order.
Mr. Schwartz: Yes, sir.
The Court: No talking to the press. I believe
we'll all be better off if nobody talks to the
Mr. Yarborough: I assume that applies to not
only myself and Mr. Mayo and Mr. Schwartz and
Ms. Edwards but also to _
The Court: To the parties. All parties. All
press off-limits. We are going to try this
case on the issue specified in the statute,
That's all we're here for, and I think if I
impose this requirement on everyone, we'll get
along better in getting that done.
The ex mero motu gag order utterly failed to meet any of the
required standards set forth in Sherrill. The trial court
neglected to enter findings of fact that either a clear threat
existed to the fairness of the trial and that the threat was
posed by the publicity to be restrained, or that it considered
less restrictive alternatives. Id. at 719-20, 504 S.E.2d at 807-08. The gag order was not reduced to writing, signed by the judge,
filed with or entered by the Clerk of Superior Court.
The issue in this civil proceeding is between two publically
elected bodies disputing the adequacy of funding for the public
school system _ an issue of paramount public interest. See Leandro
v. State, 346 N.C. 336, 353, 488 S.E.2d 249, 258 (1997) (N.C.
Const. art. IX, § 2(1), imposes on government the duty to provide
the children of every school district with access to a sound basic
Subsequent to the entry of the gag order, on 21 July 2006, the
trial court heard arguments on Media General's motion to dissolve
the gag order. Counsel specifically cited this Court's decision in
Sherrill to the trial court. The trial court responded, Educate
me. Who was on the panel of the Court of Appeals that ruled?
(Emphasis supplied). Counsel responded that Judges Greene, Smith,
and Timmons-Goodson comprised the panel in Sherrill. Counsel began
to discuss N.C. Gen. Stat. § 1-72.1. The trial court asked, How
many trial judges participated in drafting the statute? Counsel
responded that he did not know. At the end of the arguments, the
trial court informed counsel that he would consider the motion over
the weekend, and stated:
As always . . . I'm concerned that the parties
that make the decisions that impact these
processes have never tried a case, never been
in a courtroom. Now, Judge Smith has, of
course. But it's troublesome to me that a lot
of decision-making goes on that's made by
people who have never been there and done
Over 123 years ago, our Supreme Court set forth the
relationship and duties between the appellate and trial court
divisions of the General Court of Justice:
Upon the plainest principle, the courts, whose
judgments and decrees are reviewed by an
appellate court of errors, must be bound by
and observe the judgments, decrees and orders
of the latter court, within its jurisdiction.
Otherwise the court of errors would be
nugatory and a sheer mockery. There would be
no judicial subordination, no correction of
errors of inferior judicial tribunals, and
every court would be a law unto itself.
Murrill v. Murrill, 90 N.C. 120, 122 (1884).
Nothing is more basic to the jurisprudence of our State than:
[w]here an appellate court decides questions
and remands a case for further proceedings,
its decisions on those questions become the
law of the case, both in the subsequent
proceedings in the trial court and upon a
later appeal, where the same facts and the
same questions of law are involved.
Sloan v. Miller Building Corp., 128 N.C. App. 37, 41, 493 S.E.2d
460, 463 (1997) (emphasis supplied).
To further educate the trial court, both Judge Greene and
Judge (now Justice) Timmons-Goodson, in addition to Judge Smith,
served long and distinguished terms of service as judges in the
trial court division of the General Court of Justice prior to
service on this Court. The trial court's inquiry of and remarks to
counsel were irrelevant, repugnant, and reflect disdain for both
the legislative and judicial processes. The trial court's duty, as
is required by the solemn judicial oath, is to follow the laws,
general statutes, and precedents of this Court, our Supreme Court,
the Supreme Court of the United States, and the North Carolina andUnited States Constitutions. We admonish the trial judge for these
remarks, as such conduct does nothing to promote the public's
confidence in our courts at any level. N.C. Code of Judicial
Conduct, Cannon 2A.
The trial court erred in entering the gag order in this
matter. The gag order did not contain the required findings of
fact and conclusions of law set forth in Sherrill. The gag order
was not reduced to writing, signed by the judge, filed, or entered
in the Office of the Clerk of Superior Court as is required.
V. N.C. Gen. Stat. § 1-72.1
 In addition to asserting its motion under our State and
Federal Constitutions, Media General also asserted its motion under
N.C. Gen. Stat. § 1-72.1. Media General argues the trial court
erred by not ruling upon its motion pursuant to N.C. Gen. Stat. §
1-72.1 by leaving in place the unconstitutional gag order and by
violating the procedural requirements set forth in the statute.
N.C. Gen. Stat. § 1-72.1(a) (2005), entitled, Procedure to
assert right of access, states in part, Any person asserting a
right of access to a civil judicial proceeding or to a judicial
record in that proceeding may file a motion in the proceeding for
the limited purpose of determining the person's right of access.
The statute further provides that upon receipt of the motion, the
court shall establish the date and location of the hearing on the
motion that shall be set at a time before conducting any further
proceedings relative to the matter for which access is sought underthe motion. N.C. Gen. Stat. § 1-72.1(b) (emphasis supplied).
This statute further states:
The court shall rule on the motion after
consideration of such facts, legal authority,
and argument as the movant and any other party
to the action desire to present. The court
shall issue a written ruling on the motion
that shall contain a statement of reasons for
the ruling sufficiently specific to permit
appellate review. The order may also specify
any conditions or limitations on the movant's
right of access that the court determines to
be warranted under the facts and applicable
N.C. Gen. Stat. § 1-72.1(c) (emphasis supplied).
'Where the language of a statute is clear and unambiguous,
there is no room for judicial construction and the courts must give
[the statute] its plain and definite meaning, and are without power
to interpolate, or superimpose, provisions and limitations not
contained therein.' State v. Camp, 286 N.C. 148, 152, 209 S.E.2d
754, 756 (1974) (quoting 7 Strong, N.C. Index 2d, Statutes § 5
(1968)). Here, the statute plainly and unambiguously applies to
[a]ny person asserting a right of access to a civil judicial
proceeding or to a judicial record[.] N.C. Gen. Stat. § 1-
72.1(a). Media General admits it was not denied a right of access
to a civil judicial proceeding or to any judicial record in that
The gag order prevented the parties and their attorneys from
communicating with the press, not from attending the trial or
gaining access to any proceeding or record in this matter. Media
General argues that the words, right of access to a civil judicialproceeding, should be broadly construed and encompass any and
every aspect of a civil judicial proceeding. Id.
Media General stipulates that it was free to attend and did
attend the trial of this matter and freely accessed any public
judicial records of this proceeding. Under the facts and issues
before us, it is unnecessary to determine the outer ranges of what
constitutes access to a civil judicial proceeding. Id.
No current relief is available to Media General because the
trial proceeding in which the gag order arose is completed. This
appeal is technically moot. However, we find the issues regarding
the trial court's failure to timely rule upon the gag order and the
propriety of the gag order as rendered to be capable of
repetition, yet evading review. Boney Publishers, Inc.
App. at 654, 566 S.E.2d at 703-04.
The gag order wholly failed to meet any of the standards set
forth in Sherrill
, 130 N.C. App.
at 719-20, 504 S.E.2d at 807-08,
or N.C. Gen. Stat. § 1-72.1. The trial court failed to enter any
findings of fact of the existence of a clear threat to the
fairness of the trial, that such threat is posed by the actual
publicity to be restrained, and that it
restrictive alternatives. Sherrill
, 130 N.C. App.
at 719-20, 504
S.E.2d at 807-08. The trial court erred in orally rendering the
gag order and in not entering a written order containing the
required findings and conclusions on Media General's motion prior
to proceeding with the trial.
The gag order at issue prohibits either party or their
attorneys from talking to the press. The gag order did not
restrict Media General's access to a civil judicial proceeding or
judicial record in that proceeding. N.C. Gen. Stat.
Media General attended the trial and freely accessed records of
this proceeding. The statute plainly and unambiguously applies to
a person asserting a right of access to a civil judicial
proceeding or to a judicial record in that proceeding. Id
gag order is vacated.
Judges ELMORE and GEER concur.
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