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Wednesday, 29 August 2007 00:00

Case between McClure, Jackson County rages on

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A lawsuit against Jackson County for disbanding the Jackson County Airport Authority two-and-a-half years ago is headed for another round in court.

The case had advanced to the N.C. Court of Appeals, which last week ruled the lawsuit was a “moot point.” The dismissive ruling left one issue undecided, however — whether Jackson County will have to pay the attorney’s fees of the men who sued the county. The attorney’s fees amount to more than $35,000.

The initial lawsuit alleged that Jackson County commissioners overstepped their authority by disbanding the Jackson County airport board two-and-a-half years ago — removing then-chairman of the airport board Tom McClure, along with two other members, Jim Rowell and Eldridge Painter.

The commissioners were primarily after McClure, however. The commissioners also removed McClure from his position as chairman of the Economic Development Commission. The county was dissatisfied with the EDC at the time, which was largely being run as a one-man show by McClure with little oversight. The airport authority was caught up in the scandal simply because the county wanted McClure off any board that had anything to do with the county.

The county promptly reappointed both Rowell and Painter to a brand-new airport board. The commissioners stacked the board with additional appointments as well, however. Rowell and Painter were suddenly in the minority on the airport board and were stripped of their posts as vice chair and secretary-treasurer by the other members.

Rowell and Painter joined in a lawsuit with McClure against the county. The lawsuit was based on two primary complaints: that the commissioners violated the Open Meetings law by cooking up the plan to oust McClure during a meeting behind closed doors and that the commissioners violated due process by disbanding the airport board.

McClure and his party won their case locally. McClure was put back on the board. Rowell and Painter, while already back on the board, were given back their posts. The kicker, however, was that the county was ordered to pay the men’s attorney fees, some $35,000. The N.C. Open Meetings Law allows those suing open meeting violators to recoup their attorney’s fees if found in the right.

The county promptly appealed to the N.C. Court of Appeals. The court issued a ruling last week that the appeal was now a “moot point.” McClure had gone back on the board and served the remainder of his term — he only had six months left at the time of his ousting. Painter and Rowell were also back on the board. The Jackson County commissioners have since sought state legislation giving them more control over who they appoint to the airport board. Previously, they were limited to people recommended by the airport board itself.

There was no point in issuing a judgment on the merits of the case, the appeals court decided, and dismissed the appeal as “moot.”

The court of appeals did not weigh in on the issue of attorney’s fees, however. The court of appeals kicked that issue back to the lower court for a do-over of sorts.

Technically, the lower court had issued two separate rulings in the suit against the county: one that found the county guilty of the violations and one that awarded attorney’s fees. The two rulings were separated by several days. The county appealed the first ruling as soon as it was issued. The ruling on attorney’s fees came after the county had filed an appeal on the first part of the ruling.

With an appeal already in motion, the lower court should not have proceeded with its follow-up ruling on attorney’s fees, the court of appeals decided. Once the case had been appealed, the lower court lost its jurisdiction. Now that the Court of Appeals has acted — by dismissing the case as a moot point — the lower court needs to revisit the issue of attorney’s fees.

Both sides in the case claim the ruling is in their favor. The attorney for McClure and party, Joe McGuire of Asheville, said it is simply a technicality that the lower court has to rehear the issue of attorney’s fees. McGuire does not expect a different outcome, since the appeals court did not overturn the lower court decision that Jackson County was in the wrong.

“The substantive rulings of (the lower court) on due process and the Open Meetings law still stand,” McGuire said.

If that ruling still stands, it seems clear the men are entitled to recover their attorney’s fees, McGuire said.

The county’s attorney, Jeff Gray of Rose Rand Attorneys, had a different take. When the issue of attorney’s fees is reheard by the lower court, the judge can make any determination she wants.

“The judge will have to look at it again and determine whether the attorney’s fees should be awarded,” Gray said. “It does not look like (the appeals court) is offering any guidance as all.”

If nothing else, the county is hoping that upon rehearing the judge will be more discriminating in what portion of the attorney’s fees are awarded. There are many questionable attorney’s fees for services provided to McClure that are not directly related to the suit against the county, Gray said.

There is no trial date set. It will be heard in Superior Civil Court locally, likely by Judge Marlene Hyatt.

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