Critical Motion Hearing & Rally for School Board Lawsuit Scheduled for Election Day

Lawsuit challenges mask mandate at New Hanover School Board meetings

David A. Perry David A. Perry

Wilmington, NC - A critical motion hearing in my lawsuit against the New Hanover Board of Education and Sheriff's Office is now set to occur on Tuesday, November 2, 2021 at 9:30 AM. The hearing will be held at the New Hanover County Superior Court in Room 400.

As you know, this lawsuit challenges the school board's rigid policy of requiring masks to be worn by members of the public who wish to attend and fully participate in school board meetings. I believe that this violates the NC Open Meetings Law, as well our fundamental rights of assembly and petition. When I filed the lawsuit on October 14, 2021, I also filed a Motion for a Preliminary Injunction. The motion basically asks the Court to at least temporarily order that unmasked members of the public be allowed access to the school board meetings until this case is fully resolved.

Last week I scheduled a hearing on the matter for November 2nd and sent out a Notice of Hearing

to all the parties. The New Hanover County Board of Education rescheduled their next regular meeting from November 2nd to November 9th, and I wanted to make sure that the Court would have an opportunity to allow us into this important meeting. Among other important issues, the School Board will need to decide whether to continue to require face masks in our schools for the next month. Before the school board decides upon this important issue, we need to be present in force to remind the school board how detrimental masks are to the quality of education our children receive.

Sheriff McMahon and the Sheriff's Office are being represented by Deputy County Attorney Sharon Huffman. So far I have received no correspondence from them.

However, on Wednesday of this week (10/27/2021), I received correspondence from counsel for the School Board's Defense. The School Board has acquired the representation of Tharrington Smith, LLP, which is a a law firm out of Raleigh. Attorneys Colin Shive and Maya Weinstein will not only be representing the school board itself, but also all the school board members which I sued in their official capacity. It is important to note that this includes Republican school board members Stephanie Kraybill and Pete Wildeboar. These two COULD have retained separate Counsel and supported my lawsuit. Instead, these RINOs decided to go along with Stephanie Adams and the rest of the school board in opposing your right to attend school board meetings without a mask.

Included in the defense's correspondence was a Motion to Dismiss, and they also included a Notice of Hearing for their motion for the same date and time. The Court will now hear the preliminary injunction motion for about 15 minutes, and then will spend the next 15 minutes hearing the motion to dismiss. So the hearing this Tuesday is extremely important. It is indeed possible that I could not only fail to a get a preliminary injunction, but the whole case could be disposed of.

The Defense's motion is fairly boilerplate in nature. First, they try to contend that the Court doesn't have subject matter jurisdiction. This is clearly erroneous, as the NC Open Meetings Law grants specific subject matter jurisdiction to the Superior Court. Next, they try to contend that I have "failed to state a claim upon which relief may be granted." This contention is a bit more problematic. It is asking the Court to rule that there is no legal basis for my claim, and that the School Board has the right to make face masks a requirement to attend school board meetings. None of this has been backed up by Defense counsel with any legal argument. They state that might submit a memorandum of law in the future, but have not provided one as of yet.

Yesterday (10/28/2021), I submitted a reply to their motion to dismiss. I am fairly positive I can at least get the Court to delay ruling on it until all sides have been able to submit memorandums of law in the case. But this is not a guarantee! Depending on what judge hears the motion, they might discriminate against a pro se litigant like myself. That's why I have been attempting to find a lawyer to take over the case for the last week and a half. Unfortunately my request for their services have fallen on deaf ears. Even with all the powerful Republican attorneys we have in New Hanover County, not a one of them has stepped up to defend your rights. Apparently, they are not interested in getting their hands dirty to fight for the Republican values they supposedly hold dear.

Court Documents

I Need Your Help!

Given the magnitude of this hearing, I need your help! I am hoping that we can amass a large, loud, but peaceful protest in front of the Courthouse in downtown Wilmington, from 9 AM - 11AM on November 2nd. I also want to invite some of the crowd into the hearing so that the judge can realize that this case isn't just about my freedom, but all of yours as well. To enter the Courthouse, you will need to wear a mask. However, unlike school board meetings, there are actually exceptions to the Court's face covering policy for those who have medical conditions. If you do plan to come inside to observe, please be peaceful and conduct yourself calmly and appropriately. The last thing we need is for the Court and the media to paint us as being loud mouthes and violent thugs.

Please go to the Facebook Event, indicate that you are coming, and share it with all your friends: