The opinion
Chief Justice Exum
dissenting.
I joined in Justice Mitchell’s original dissenting opinion because I think, and continue to think, that Davis v. Michigan Dept. of *397 Treasury, 489 U.S. 803 , 103 L. Ed. 2d 891 (1989), is retroactive and plaintiffs are entitled to its benefits. That was the only issue addressed by the majority in its original opinion.
On plaintiffs’ petition for rehearing the majority has elected to address certain state constitutional issues which plaintiffs contend were never ruled on by the trial court. It is not clear from the record on appeal that the state constitutional issues were addressed and decided by the trial court. If the trial court determined the case solely on the basis of the retroactivity of Davis , its order would not necessarily have been written differently. The trial court would have necessarily considered the state constitutional claims only if it had rejected plaintiffs’ federal law claims. It is clear that the state law claims were neither briefed nor argued by plaintiffs on the original appeal. Neither side addressed these points in its oral presentation to the Court. Under these circumstances I think it inappropriate for the Court to address them now on plaintiffs’ petition for rehearing.
I would either remand the case for determination of the state constitutional questions as plaintiffs have prayed or order a reargument and new briefing on the state constitutional issues.
I take this opportunity also to say that I have real doubt as to whether plaintiffs have followed proper statutory procedures and it may be that, ultimately, their claims will be barred on procedural grounds. See Bailey v. State of North Carolina, 330 N.C. 227 , 410 S.E.2d 462 (1991). Since the majority has not chosen to address this aspect of the case, I, too, will leave it for another day.