McGuireWoods Team Wins First Amendment Victory in North Carolina Supreme Court

Ruling Protects ‘Fundamental Right’ to Petition Government

June 23, 2021

A McGuireWoods appellate team won a precedent-setting victory for client Resco Products Inc. in the North Carolina Supreme Court, which held that the First Amendment protected the company’s right to express opposition to a rezoning proposal in the town of Hillsborough.

The unanimous June 11 decision reversed a decision by the North Carolina Court of Appeals and affirmed a trial court ruling granting Resco’s motion to dismiss the lawsuit. McGuireWoods partner Brad Kutrow and associate Jocelyn Mitnaul Mallette represented Resco in the state Supreme Court proceedings and Kutrow argued the case in a January 2021 video hearing. Because of the importance of the case, North Carolina’s solicitor general filed an amicus brief and participated in the oral argument.

“We are pleased the Supreme Court affirmed our client’s right — and the rights of all North Carolinians — to petition their government and have their voices heard at public meetings and hearings,” Kutrow said.

Resco operates a mineral mine in Hillsborough. An adjacent landowner hoped to sell 45 acres next to the mine for a townhouse development, but needed the property rezoned for multifamily use. Resco’s representatives appeared before Hillsborough town officials in 2013 to oppose the rezoning, explaining that the mine’s blasting operations could create risks for nearby townhouse residents, as well as noise and vibration.

Despite Resco’s concerns, the town approved the rezoning. Months later, even with the rezoning, the townhouse developer decided not to buy 5.5 acres closest to the mine. The landowner sued, alleging that Resco had misrepresented the risks and impacts of its mining operations and tortiously interfered with its prospective deal.

The Orange County Superior Court granted Resco’s motion to dismiss in 2018, but the landowner appealed. The North Carolina Court of Appeals reinstated the suit in 2019, holding that the case involved the applicability of the Noerr-Pennington doctrine under the U.S. Constitution, which provides immunity from antitrust liability based on petitioning activity. Resco asked the state Supreme Court to review the case.

The Supreme Court’s decision, written by Chief Justice Paul Newby, adopted Resco’s analysis by focusing on the “fundamental right to petition the government” at public hearings and meetings. It also tracked Resco’s brief by summarizing the long history of the right to petition from the Magna Carta forward, and cited the right to petition government representatives recognized in North Carolina’s first constitution in 1776 and later state constitutions. It also adopted Resco’s view that public meetings were an absolutely protected forum for petitioning speech.

“Here defendants’ testimony during the public zoning process constitutes petitioning activity,” the high court concluded. “Because early dismissal is necessary to protect the exercise of this fundamental right, the trial court properly granted defendants’ motion to dismiss plaintiff’s lawsuit.”