When North Carolina residents voted in the 2024 election, they might have been surprised to see a ballot measure regarding a proposed amendment to the state constitution.[1] Prior to the election, the North Carolina State Constitution allowed “every person born in the United States and every person who has been naturalized” to vote in an election.[2] The proposed initiative asked if voters would be “for” or “against” removing the naturalization provision, modifying the voter qualification to read that “only a citizen of the United States who is 18 years of age and otherwise possessing the qualifications for voting shall be entitled to vote in any election in this state.”[3]
At first glance, the proposed amendment was a mere restatement of what the law already declared.[4] And that’s just it–while the amendment proposed changing the language of North Carolina’s constitution, the law would remain unchanged: it is illegal for a non-citizen to vote in either a federal or statewide election.[5]
North Carolina was one of a handful of states that voted on an amendment targeting noncitizen voting.[6] Idaho, Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and Wisconsin also asked voters to consider amending their state constitutions to explicitly bar non-citizens from voting in a state or federal election.[7]
Background
On June 27, 2024, the General Assembly of North Carolina passed House Bill 1074, allowing the proposed amendment to appear on the ballot in the 2024 federal election.[8] The measure was largely championed by the NCGOP, which controlled the state legislature.[9] NC House Rules Chairman Destin Hall said that “[t]ightening our election laws so that only U.S. citizens are voting in this country ensures that those making decisions about our country’s future have a vested interest in its well-being.”[10] The amendment was likely proposed in response to the NCGOP’s growing concerns over voter fraud by undocumented immigrants in both the 2016 and 2020 election.[11] Trump notoriously alleged that thousands of non-citizens had voted in the 2020 election, particularly in the state of Arizona, and claimed that such illegal voting led to his unsuccessful reelection.[12]
Critics of the amendment, led by Democrats, were strongly opposed to the proposed new language.[13] Reiterating that it is already illegal for noncitizens to vote in federal and state elections, opponents found the amendment unnecessary.[14] ACLU North Carolina further noted that 44% of immigrants in North Carolina are naturalized U.S. citizens, believing the amendment was spurred by “fearmongering” and “hateful rhetoric” towards naturalized immigrants in North Carolina.[15] Moreover, the NC ACLU viewed the amendment as a tactic to discourage naturalized immigrants from exercising their fundamental right to vote.[16] Similarly, Democracy NC believed the proposed amendment was part of a Republican agenda to create distrust “about immigrants and voting to sow doubts” about the upcoming election, “opening the door to confusion” amongst naturalized citizens.[17]
Opponents of the amendment also turned to various studies refuting Republican claims of noncitizen voting in prior elections.[18] Analyzing the Heritage Foundation’s database of voter fraud cases brought by prosecutors, the Washington Post found only 85 cases of noncitizen voting allegations from 2002 to 2023.[19] Another study by the Brennan Center for Justice after the 2016 election found only 30 cases of suspected noncitizen voting in the election, out of 23.5 million votes from 42 different jurisdictions.[20] In North Carolina, a 2016 election audit found that suspected noncitizen voters, based on data from the state’s Division of Motor Vehicles, were citizens 98% of the time.[21] ACLU North Carolina additionally commented that “[b]ipartisan election officials confirmed that the 2020 election results were credible, accurate, and secure.”[22]
Results
North Carolinians overwhelmingly voted in favor of the amendment, with 77.6% of votes “for” the amendment and 22.4% “against,” as of the time of writing.[23] Of the 100 counties in North Carolina, only two had a majority of votes against the amendment: Durham and Orange County.[24] Notably, those whose who voted against the amendment in these counties only won by a slim majority: 53% and 52%, respectively.[25] In all other counties, proponents of the amendment won the vote by a majority of at least 66%.[26] Camden County and Bladen County had the highest percentage of favorable votes as 93% of their constituents voted in favor of the amendment.[27]
All 8 states with similar constitutional amendments on their ballots adopted the language, making it explicitly illegal for noncitizens to vote in their jurisdictions. [28]
Implications
With the amendment taking effect, opponents will need to work harder to fight against the potential spread of misinformation about naturalized citizens.[29] Without explicit language allowing naturalized citizens to vote, it is possible that the amendment could be viewed as a substantive change to NC’s voting laws.[30] Likewise, the amendment may have confused other voters into believing that non-citizens could legally vote in the election prior to the amendment.[31] Educating newly naturalized citizens of their rights and encouraging them to vote, as well as educating Americans on currently existing law, will be key to battling any misleading information. Furthermore, opponents to the amendment worry that such language could open the door to interpretation of who qualifies as a “citizen,” potentially stripping away birthright citizenship from people who were born in the U.S. to parents without American citizenships.[32] Trump has explicitly said that if reelected, he would end birthright citizenship via executive order.[33]
Proponents of the amendment hoped that the language change would help North Carolinians feel more secure in the state’s election results.[34] North Carolina House Speaker Tim Moore echoed this sentiment, stating that the alleged “efforts to allow non-citizens to vote would undermine the public’s confidence in our electoral system and leave the door open for chaos and election fraud to take hold.”[35] Referring to the amendment as a “safeguard,” he further clarified his belief that “this amendment to our constitution would further strengthen election integrity in North Carolina.”[36]
Across the country, North Carolina and the seven other states that voted in favor of adopting the amendment during the 2024 election join seven states with pre-existing language in their state constitutions explicitly prohibiting noncitizen voting.[37] Those states include Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio.[38] Considering this, it would be unsurprising to see more and more states propose similar amendments to their state constitutions in the next election, particularly in states led by Republican supermajorities.
[1]What is the ‘citizens-only’ amendment on the 2024 ballot in North Carolina?, ABC11 (Oct. 22, 2024), https://abc11.com/post/2024-election-what-is-citizens-amendment-ballot-north-carolina/15450474/.
[4]Vote No on NC’s Citizens-Only Ballot Measure, ACLU North Carolina (Sept. 25, 2024), https://www.acluofnorthcarolina.org/en/news/vote-no-ncs-citizens-only-ballot-measure.
[6] Kaanita Iyer, 8 states will vote to bar noncitizen voting, CNN projects, something already illegal in federal elections, CNN (updated Nov. 6, 2024), https://www.cnn.com/2024/11/03/politics/noncitizen-voting-ballot-measures-election/index.html.
[12] Laura Doan, Trump falsely claims noncitizen voter fraud is widespread. Here are 5 facts., CBS News (October 30, 2024), https://www.cbsnews.com/news/trump-noncitizen-voter-fraud-fact-check/.
[13] Nicole Acevedo & Sakshi Venkatraman, Citizens-only ballot measures make newly naturalized Americans voting for the first time feel on edge, NBC News (Oct. 22, 2024), https://www.nbcnews.com/news/latino/citizens-only-ballot-measures-make-newly-naturalized-americans-voting-rcna176092.
[19] Glenn Kessler, The truth about noncitizen voting in federal elections, Wash. Post (March 6, 2024), https://www.washingtonpost.com/politics/2024/03/06/truth-about-noncitizen-voting-federal-elections/.
[20] Douglas Keith et al., Noncitizen Voting: The Missing Millions, Brennan Center for Justice (May 5, 2017), https://www.brennancenter.org/our-work/research-reports/noncitizen-voting-missing-millions.
[21] Emily Vespa, What to know about the citizen-only voting amendment on North Carolina’s Ballot, News & Observer (Oct. 31, 2024), https://www.newsobserver.com/news/politics-government/election/voter-guide/article294655104.html.
[28] Adam Edelman, Ballot measures targeting noncitizen voting approved in 8 states, NBC News (Nov. 6, 2024), https://www.nbcnews.com/politics/2024-election/ballot-measures-targeting-noncitizen-voting-approved-8-states-rcna178888.
[29] Will Doran, Citizen-only voting amendment passes with strong support among NC voters, WRAL News (updated Nov. 6, 2024), https://www.wral.com/story/citizen-only-voting-amendment-passes-with-strong-support-among-nc-voters/21705796/.
[33] Ted Hesson, Trump vows to end birthright citizenship for children of immigrants in US illegally, Reuters (May 30, 2023), https://www.reuters.com/world/us/trump-vows-end-birthright-citizenship-children-immigrants-us-illegally-2023-05-30/.
[37]Laws permitting noncitizens to vote in the United States, Ballotpedia, https://ballotpedia.org/Laws_permitting_noncitizens_to_vote_in_the_United_States#States_where_noncitizen_voting_is_prohibited (last visited Nov. 6, 2024).
A regulatory sandbox is a “controlled environment” in which companies reward innovative contributions regulatory freedom with.[1] Essentially, companies enjoy (temporarily) fewer regulatory hurdles to overcome during the sprint to bring novel technologies and services to market.[2] On one hand, regulatory sandboxes foster innovation and promote advancement because companies are free to “trial run” the efficacy of–and consumer response to–their product in the marketplace.[3] On the other hand, regulatory sandboxes allow regulators to closely observe company activity and consumer response, in order to more closely tailor new regulations to the nuances revealed through the simulated market. [4]
In North Carolina, the banking and insurance industries are “major economic driver[s].”[5] Due to its technological and financial prestige, growing job opportunities, and affordability, North Carolina is uniquely poised to become a national leader in the financial technology and insurance industries. [6] As such, North Carolina joined the ranks as one of only a few states driving innovation by implementing a regulatory sandbox.[7] The first iteration of its sandbox—introduced in 2019—failed because it prioritized “innovation at the expense of consumer protection.”[8] However, two years later, the idea was revisited by the N.C. General Assembly, with increased consumer protections built in, and this time proved fruitful.[9] In October 2021, the North Carolina Regulatory Sandbox Act of 2021 (the “Act”) was signed into effect.[10] At the time, North Carolina was one of only ten states that took such a bold approach. [11]
The Act created a framework for pioneering companies to make a case for their product or service and specify which regulations would prevent their ideas from becoming a reality. [12] The applicable State agency is then authorized, under the Act, to temporarily waive the requested requirements as they see fit, to allow the applying company a greater chance of success. [13] The Act also created the Innovation Council—a panel of 11 statutorily-designated members of various, but relevant, backgrounds—to both manage day-to-day operations and promulgate permanent sandbox rules.[14] In order to participate in the sandbox, companies must submit an application to the Council, detailing the ins and outs of their product, business model, consumer protections, risk-management strategies, and more.[15] If accepted, the company is entitled to 24 months sans (approved) regulations to offer their product to the public and strengthen their company’s continued viability before being re-subject to all applicable regulations. [16]
Unlike some of the other states that implemented comparable regulatory sandboxes, North Carolina’s sandbox does not have a statutory end date. [17] For example, Hawaii’s regulatory sandbox recently—and right on schedule—came to an end,[18] and Utah is now in second phase of its own sandbox. [19] Although the end-date and ultimate impact of North Carolina’s regulatory sandbox is largely still inconclusive, one thing is clear: the Innovation Council remains diligently committed to furthering the goals of the Act.
Pursuant to the authority vested in it by N.C.G.S. 169, the Innovation Council has released notice of proposed permanent rules (Council Rules).[20] These Council Rules are scheduled to take effect in March 2025.[21]
While the Act left much of the application, review, and waiver process up to the Innovation Council’s discretion,[22] the Council Rules clearly delineate the sandbox application process, including voting mechanisms, mandatory opportunity for public comment, and optional company presentation of products and service to the Innovation Council for review.[23]
Interestingly, the Council Rules also incorporate an additional dimension to the application process: an “expression of interest” opportunity for companies to receive a preliminary review of their proposed product and waived requirements.[24]
Under the Act, company applications must be submitted to the Innovation Council, which then selects and refers applicants to the relevant State agencies.[25] If accepted into the program, the company is eligible to be granted a waiver of applicable statutory or regulatory requirements, provided such waiver is not broader than necessary, as determined by the applicable State agency.[26] However, per the Council Rules, it appears the Council may have increased its discretion in the review process relative to the State agencies. Under section .0106 of the Council Rules, State agencies will be provided with an opportunity to review company applications and provide recommendations, but, if the review is not provided within 45 days, the Council, “in its discretion, may deem the [] application acceptable.”[27]
Moving forward, both the content of the proposed Council Rules and responses to calls for the expansion of North Carolina’s regulatory sandbox to other industries[28] will be critical to watch.
[1] Matthew C. Christoph, Note: Criminal Justice Technology and the Regulatory Sandbox: Toward Balancing Justice, Accountability, and Innovation, 84 U. Pitt. L. Rev. 971, 975 (2023).
[3] Kyle A. Conway, Comment: Blockchain Technology: Limited Liability Companies and the Need for North Carolina Legislation, 45 Campbell L. Rev. 127, 139 (2022).
[6] Kristen Smithberg, Recent College Grads Could Fare Well in These Four Markets, Globest.com (Jul. 31, 2024), https://www.globest.com/2024/07/31/recent-college-grads-could-fare-well-in-these-four-markets/.
[13] Bill Patterson, N.C. Legislative Analysis Division, Analysis of: House Bill 624: North Carolina Regulatory Sandbox Act (2021), https://dashboard.ncleg.gov/api/Services/BillSummary/2021/H624-SMTG-122(e4)-v-2.
[18] Hilary R. Sledge-Sarnor et al., Hawaii’s Money Transmitters Modernization Act Will No Longer Apply To Cryptocurrency Activities, Mondaq (Feb. 22, 2024), https://www.mondaq.com/unitedstates/fin-tech/1427532/hawaiis-money-transmitters-modernization-act-will-no-longer-apply-to-cryptocurrency-activities#authors.
[19]Sandbox Phase 2, Utah Office of Legal Services Innovation, https://utahinnovationoffice.org/sandbox-phase-2/#:~:text=The%20Utah%20Supreme%20Court%E2%80%99s%20legal%20regulatory%20Sandbox%20is,narrow%20the%20access-to-justice%20gap%20without%20increasing%20consumer%20harm.
[20] N.C. Innovation Council: Financial and Insurance Regulatory Sandbox (proposed effective date Mar. 1, 2025) (to be codified at 04 N.C. Admin. Code 25C.0100-.0111) [hereinafter Council Rules].
As of September 16, 2024, indigent prisoner-plaintiffs in North Carolina must be weary when their civil rights claims are dismissed.[1] The failure to do so could result in the loss of important financial protections afforded to them.[2]
Background
The Federal Reserve reports that 37% of all adults would not be able to cover a $400 emergency expense with cash or its equivalent.[3] While some of those people could pay using another method, 13% of all adults cannot afford the emergency expense “by any means.”[4] To initiate a lawsuit in a federal district court, prospective plaintiffs must pay fees totaling $402,[5] which can pose an insurmountable financial burden to filing suit in federal court. This $402 fee is made up of a $350 statutory filing fee,[6] and an additional $52 miscellaneous fee “[f]or filing any document that is not related to a pending case or proceeding.”[7] With these conditions in place, it can be difficult for indigent plaintiffs to seek justice for their injuries.[8] This is especially true for prisoners who want to bring claims against prison officials. Among prisoners, 57% of men and 72% of women were considered in poverty before they were arrested.[9]
Luckily, the common law has a rich history of allowing indigent plaintiffs to bring their claims in forma pauperis (IFP), which allows them to avoid prepaying court fees.[10] The IFP doctrine was formalized by Congress in 1892,[11] and is today codified as 28 U.S.C. § 1915.[12] The statute permits a federal court to authorize proceeding IFP when a litigant offers a good faith affidavit stating “that the person is unable to pay” prefiling fees.[13]
However, Congress noticed that there were too many meritless suits being brought IFP by prisoners in the federal courts.[14] As stated by the Supreme Court, “[w]hat this country needs, Congress decided, is fewer and better prisoner suits.”[15] To meet that end, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA).[16] Among other things, the PLRA sought to reduce frivolous prisoner litigation by introducing a “three-strike rule,” which bars a prisoner from proceeding IFP if they have “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal . . . that was dismissed on the grounds that it [was] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted . . . .”[17] Thus, after three “strikes,” a prisoner loses their ability to proceed IFP, which could mean that they are “out” of federal court.[18]
Heck Dismissals
When a prisoner believes that their rights have been violated by a prison official, they may choose to bring a “civil action for deprivation of rights,” under 42 U.S.C. § 1983.[19] If their § 1983 suit is successful, a prisoner can secure monetary damages or other equitable relief.[20]
There is a wrinkle, however. Sometimes, prisoners bring claims that, if successful, would undermine the legality of their imprisonment in the first place.[21] The Supreme Court dealt with this problem in Heck v. Humphrey.[22] In Heck, a prisoner brought a § 1983 claim against prosecutors and investigators for unlawful investigation, destroying exculpatory evidence, and using illegal voice identification procedures at trial.[23] The district court found that the prisoner’s claim called into question the validity of his imprisonment, so it dismissed his complaint without prejudice.[24] The Seventh Circuit affirmed the district court’s decision by finding that a § 1983 action that calls into question the legality of the conviction is more properly characterized as an application for habeas corpus, which requires all state remedies to be exhausted before it can be heard.[25]
When Heck reached the Supreme Court, the Court held that for a § 1983 claim to be cognizable, the plaintiff must show that his or her conviction has been reversed, expunged, invalidated, or questioned.[26] The Court found that, when evaluating a prisoner’s §1983 claims, courts must “consider whether a judgment in favor of the plaintiff would necessarily imply the validity of his conviction or sentence; if it would, the complaint must be dismissed . . . .”[27] This requirement became known as the “favorable termination” requirement.[28]
Heck Dismissals and PLRA Strikes
Does a dismissal under Heck give a prisoner-plaintiff a PLRA strike? The Supreme Court has declined to specify,[29] and the circuit courts are now split on the question.[30] The Third, Fifth, Tenth, and D.C. Circuits have held that a Heck dismissal qualifies as a dismissal for failure to state a claim because the favorable termination requirement is effectively an element of a § 1983 claim.[31] On the other hand, the Second, Seventh, and Ninth Circuits have taken the alternate position that a Heck dismissal is sometimes, but not always, a strike.[32]
Relevant for North Carolinian prisoners, the Fourth Circuit picked a side of the split in September 2024.[33] In Brunson v. Stein, Brunson was imprisoned after being convicted of a sexual-abuse offense.[34] He had “previously filed four § 1983 suits that were all dismissed under Heck.”[35] The district court concluded that the Heck dismissals were for failure to state a claim upon which relief can be granted, so Brunson had more than three PLRA strikes on his record.[36] Thus, it did not authorize Brunson to proceed IFP.[37] After paying the $402, Brunson’s case proceeded as normal and the district court dismissed his claim.[38] When Brunson appealed his claim, he applied to forgo prepaying fees by arguing that Heck dismissals were not strikes under the PLRA.[39]
The Fourth Circuit held that “a dismissal under Heck is necessarily a dismissal for ‘failure to state a claim upon which relief may be granted’ and qualifies as a PLRA strike.”[40] It considered the language of Heck’s holding: “a § 1983 plaintiff must prove that the conviction or sentence has been . . . invalidated.”[41] If a prisoner-plaintiff’s claim invokes Heck, they must show that their conviction has been invalidated or face dismissal.[42] Without showing favorable termination, the court reasoned, an element of the claim must be missing.[43] In other words, the complaint has failed to state a claim upon which relief can be granted.[44] Because this type of dismissal is a PLRA strike,[45] Brunson’s four previous Heck dismissals disqualified him from proceeding IFP.[46]
The consequences of Brunson could be drastic for indigent prisoners in North Carolina and the greater Fourth Circuit. What could be perceived as a “flood of nonmeritorious claims,”[47] from prisoners could also reasonably be perceived as the natural effect of the high quantity of pro se plaintiffs in prisons. For more than twenty years, over 90% of prisoner civil rights or conditions claims were brought by prisoners pro se.[48] With very little legal training or experience, many indigent prisoners may bring claims when they perceive a violation of their rights without understanding the procedural intricacies of habeas corpus petitions or 42. U.S.C. § 1983 claims.[49] After repeated attempts, they may be forced to pay or strike themselves out of federal court.[50]
Interestingly, a solution may already be found within the text of the federal IFP statute.[51] It states that “[t]he court may request an attorney to represent any person unable to afford counsel.”[52] With court-appointed counsel, prisoner-plaintiffs may have better luck proceeding IFP in their attempts to redress their grievances with prison and state officials. Still, for whatever reason, most prisoners proceed pro se.[53] With that being the case, indigent prisoner-plaintiffs in North Carolina must tread carefully around the new IFP landscape established by Brunson.
[1]See Brunson v. Stein, 116 F.4th 301 (4th Cir. 2024).
[3] Bd. of Governors of the Fed. Rsrv. Sys., Economic Well-Being of U.S. Households in 2023 33 (2024), https://www.federalreserve.gov/publications/files/2023-report-economic-well-being-us-households-202405.pdf.
[8]See Rosa v. Doe, 86 F.4th 1001, 1003–4 (2d Cir. 2023) (noting that these conditions existed in 2022).
[9] Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned, Prison Policy Initiative (July 9, 2015), https://www.prisonpolicy.org/reports/income.html.
[10]See Rosa, 86 F.4th at 1004 (describing the in forma pauperis tradition existing as early as 1295 in English ecclesiastical courts).
[20]See id. (“Every person who . . . subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”).
[21]See Heck v. Humphrey, 512 U.S. 477, 483 (1994).
[48] Margo Schlanger, Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021, U. of Mich. L. Sch., Pub. L. & Legal Theory Research Paper Series, April 2022 4, https://ssrn.com/abstract=4085142.
[49]See Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. Irvine L. rev. 153, 153–54 (2015) (“The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.”).
Most dog owners in the United States view their dogs as a part of their family, yet legally, dogs are still property.[1] The law has not kept up with the emotional value we attach to companion pets like cats and dogs, and when pet-owning spouses divorce, they are forced to reckon with the law treating their pet as property.[2] This adds emotional injury to an already difficult time for pet owners.
I. Custody of Pets in a Divorce
In family law matters, most states treat the custody of pets during a divorce like any other division of property.[3] In a divorce, the couple can either divide their assets privately outside of court, or the court will step in to decide how their assets should be split, which includes determining which spouse will retain ownership of any pets involved.[4] Pets are treated just like any other type of property owned by the divorcing couple even though they mean so much more to their owners. In recognition of the deep emotional value owners attach to their pets, some courts have started to consider the best interests of the animal during custody disputes over pet ownership.[5]
II. Legal Trends in Pet Custody
Eight states and the District of Columbia have now adopted laws requiring courts to consider a pet’s well-being in custody disputes.[6] In 2017, Alaska became the first state to require judges to consider the well-being of a pet in custody cases, and several other states have since followed suit.[7] While this departure from the typical property analysis to pet custody is still a minority rule,[8] this new focus on a pet’s best interests demonstrates a shift in how pet custody is treated by courts. This shift towards analyzing the pet’s well-being more closely aligns state law with the cultural view of companion pets as members of the family in the U.S.[9]
III. Pet Custody Trends in North Carolina
Despite this shift towards a pet-centric analysis, North Carolina remains in the majority of states and uses a traditional property analysis when determining a pet’s custody.[10]
A. Determining Pet Custody Outside of Court
Even in states like North Carolina where courts do not consider the best interests of the pet, spouses can still take steps to ensure the well-being of their pet remains at the forefront of custody considerations.[11] Couples can make pet custody decisions outside of court through private agreements like pet custody agreements or prenuptial agreements.[12] Pet custody agreements are modeled after child custody agreements and can include who the pet will live with, whether there will be split custody of the pet, and who will be responsible for expenses related to the pet.[13] Prior to marriage, couples can enter into a prenuptial agreements that include clauses detailing what would happen to a pet if they ever chose to get divorced.[14] Keeping the pet custody question of court allows pet owners to have more control over their decision and take their pet’s well-being into account. Although determining pet custody outside of court has its advantages, it also requires a couple to come to an agreement, which may be difficult when both spouses have a deep emotion investment in a pet.[15] When a couple is unable to determine who should retain custody of a pet in a divorce, a court will make the decision for them.[16]
B. Determining Pet Custody in Court
Because pet custody determinations are not mentioned in any North Carolina General Statute, judges are left without any guidance as to how they should analyze who retains ownership of the pet beyond the traditional property analysis for dividing assets.[17] In the absence of any guidelines, North Carolina judges can consider which spouse primarily takes care of the pet, has the best living situation to care for a pet, and can afford the pet’s expenses.[18] While judges have discretion to consider the emotional bond between owners and their pet, they are not required to consider this factor in their analysis.[19] While this discretion might empower some judges to consider the best interests of the pet, spouses must decide whether to agree upon pet custody outside of court or hope that a presiding judge will consider on their pet’s best interests. Prioritizing the best interests of the pet in pet custody disputes is gaining traction in the legal world, and law firms in North Carolina are beginning to acknowledge the importance of considering the pet’s best interests.[20]
While considering the best interests of the pet is becoming more popular, only a handful of states currently use this test.[21] Perhaps one day North Carolina will require the consideration of a pet’s well-being in custody disputes, but in the meantime, spouses who wish to prioritize their pet’s best interests can rely on out-of-court custody determinations.[22]
In recent years, Name, Image and Likeness (NIL) regulations have been a source of dramatic change in the landscape of high school athletics.[1] These regulations, which are a much-needed change from the burdensome rules of the past, enable student-athletes to profit from their personal brands.[2] The NIL debate erupted when collegiate players were finally given the chance to earn money through endorsements, sponsorships, and other opportunities.[3] However, the position for high school athletes, particularly in North Carolina, is still difficult.[4] A recent lawsuit filed in Wake County has brought this intricacy to light,[5] and we could soon see significant changes to the NIL rights of public high school athletes across the state.
Current NIL Laws in North Carolina
Following the Supreme Court’s landmark decision in NCAA v. Alston[6], the National Collegiate Athletic Association (NCAA) implemented an interim policy that lifted the previous restrictions on student-athletes receiving endorsement benefits.[7] While collegiate athletes in North Carolina now have greater autonomy in controlling and profiting from their personal brand, the situation remains more restrictive for high school athletes. In 2023, the North Carolina High School Athletic Association (NCHSAA), which governs public high school athletics, passed a policy that allows student-athletes at public North Carolina high schools to profit from NIL deals.[8] This effort was quickly met with push-back from the State as the legislature passed an amendment stripping the NCHSAA of their power to regulate NIL activities.[9] This act transferred the authority to regulate these activities to the North Carolina State Board of Education.[10] On July 1, 2024, the State Board enacted a controversial policy banning student-athletes at public schools from entering into most NIL agreements.[11]
Much of the concern over NIL benefits lies in the risk of creating an uneven playing field for high school athletes by favoring those at larger schools in more affluent areas.[12] However, in their attempts to prevent this disparity, the State Board’s ban has created an even larger one.[13] Athletic programs at private schools in North Carolina are governed by their own athletic association which implemented a policy earlier this year allowing their students to participate in NIL agreements.[14] This makes North Carolina the only state in which private school student-athletes are afforded the privilege to profit off their name, image and likeness while public school student athletes are prohibited from doing the same.[15] Additionally, there has been a recent influx of legislation passed in other states allowing NIL deals for high school athletes, and 38 states now permit this practice.[16] The State Board’s ban has thus inadvertently created an incentive for high-performing student-athletes to transfer to private schools, move to different states, or graduate early in order to benefit from lucrative NIL deals.[17] Student-athletes who are not afforded the luxury of making these changes remain at a disadvantage as they lose out on the ability to monetize their personal brand.[18] This disparity has fueled the ongoing debate about fairness and equity in high school athletics.[19]
The Rolanda Brandon v. North Carolina State Board of Education Lawsuit
The mother of five-star high school quarterback Faizon Brandon recently filed a lawsuit against the State Board of Education to challenge their ban on NIL deals for public high school athletes.[20] In the complaint filed in Wake County, Rolanda Brandon argues that these regulations unfairly restrict the rights of high school athletes to benefit from their own names, images, and likenesses¾rights that are guaranteed to other individuals, including collegiate athletes, under state and federal law.[21] Brandon’s case points to the current inequality between public and private school athletes as well as the ban’s inconsistency with the legislation of most states as a glaring illustration of the unjust divide that results from restrictive NIL regulations.[22]
While the complaint touches on commonly cited constitutional issues surrounding NIL regulations, namely the restriction on one’s right to publicity and right to contract, the cause of action is rooted in a different legal argument.[23] Brandon contends that the State Board did not possess the legal authority to enact an outright ban on NIL activities.[24] The argument ultimately comes down to the interpretation of the language used in Senate Bill 452 which directed the State Board to adopt rules governing “student amateur status requirements, including rules related to the use of a student’s name, image and likeness.”[25] Brandon argues that the legislature’s choice to include the word “use” indicates that it did not anticipate that the State Board would ban all use of student-athletes’ NIL, only that they would regulate it’s use.[26]
The success of Brandon’s argument is uncertain as it must overcome the generous discretion courts typically grant to government agencies.[27] The NIL market for high school athletes is largely uncharted territory in North Carolina, which generates a level of concern that the court may find justifies the temporary ban.[28]
The Future of NIL Laws in North Carolina
Regardless of the legal outcome of Brandon’s lawsuit, it seems increasingly likely that North Carolina NIL laws will be changing in the near future. Shortly after the lawsuit was filed, the State Board heard a proposal involving changes to the current rule that would allow public high school athletes to benefit from NIL deals, effectively reversing the current ban.[29] In a major step towards change, the Board advanced the proposed rule to a public comment period and a vote has been scheduled for January of next year.[30]
The current system is under significant pressure as student-athletes are grappling with the decision to leave the public school system to reap the financial benefits of NIL elsewhere.[31] A change in the law that would bring North Carolina in line with the overwhelming majority of states would thus benefit both student-athletes and public schools. As North Carolina navigates the complexities of NIL regulations and grapples with the implications of recent legal challenges, it stands to redefine the landscape of high school athletics in the state, ensuring that all athletes have equal access to the opportunities that come with their name, image, and likeness.
[1] Adam Epstein et al., An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics, 77 Vand. L. Rev. 845, 889 (2024).
[8] Juli Kidd, NCHSSA Board of Directors Concludes Spring 2023 Meeting, North Carolina High School Athletic Association (May 3, 2023), https://www.nchsaa.org/nchsaa-board-directors-concludes-spring-2023-meeting/.
[9] Angela Doughty, Whistle Blown: Time Out on North Carolina Student Athlete NIL Deals, JD Supra (July 13, 2023), https://www.jdsupra.com/legalnews/whistle-blown-time-out-on-north-1117565/; see also 2023 Bill Text NC S.B. 636 (establishing oversight of high school interscholastic athletic activities).
[10] S.636, 2023 Gen. Assemb., Reg. Sess. (N.C. 2023).
[11] Shaquira Speaks, No More NIL for NC Public High School Athletes Under State Board Decision, Queen City News (June 14, 2024, 10:31 PM), https://www.qcnews.com/news/u-s/north-carolina/no-more-nil-for-nc-public-high-school-athletes-under-state-board-decision/.
[12] Brayden Stamps & Gretchen Stenger, Proposed Rules Would Allow NIL for Public High School Athletes in North Carolina, Fox8 WGHP (Sept. 5, 2024, 11:55 AM), https://myfox8.com/sports/triad-high-school/proposed-rules-would-allow-nil-for-public-high-school-athletes-in-north-carolina/.
[13]See Grace Raynor, How a 5-star QB Could Change North Carolina’s NIL Laws: What I’m Hearing in CFB Recruiting, The Athletic (Sept. 18, 2024), https://www.nytimes.com/athletic/5773853/2024/09/18/north-carolina-nil-recruiting-faizon-brandon/?searchResultPosition=8.
[14]NC Private School Leaders Approve Policy Allowing Athletes to Profit Off NIL, WBTV (Feb. 2, 2024, 2:58 PM), https://www.wbtv.com/2024/02/02/nc-private-school-leaders-approve-policy-allowing-athletes-profit-off-nil/.
[15] Braly Keller, High School NIL: State-by-State Regulations for Name, Image and Likeness Rights, Opendorse (Sept. 16, 2024), https://biz.opendorse.com/blog/nil-high-school/.
[17] Francesca Casalino, Call to the Bullpen: Saving High School Student Athlete Name, Image, and Likeness Rights, 29 Jeffrey S. Moorad Sports L.J. 263, 283 (2022).
[29] Eli Henderson, North Carolina Advances NIL Rule for Public School Athletes, Sports Illustrated (Sept. 7, 2024), https://www.si.com/fannation/name-image-likeness/nil-news/north-carolina-advances-nil-rule-for-public-school-athletes.
The Kennedy name has been a staple of American politics going as far back as John F. Kennedy’s presidential victory in 1960.[1] Ever since the 1960 election, members of the Kennedy family have found themselves in the news for various reasons.[2] One Kennedy family member that has recently been a topic of discussion is Robert F. Kennedy Jr. (Kennedy)[3], son of Robert Kennedy and nephew of John F. Kennedy.
Kennedy rose to prominence as an environmental attorney, where he attacked big pollution and championed clean water and air initiatives.[4] But he has lately found himself at the heart of various controversies by supporting anti-vaccine initiatives, spreading John F. Kennedy death conspiracies, and blaming gender dysphoria on chemicals in the environment.[5] Despite his involvement in these controversies, Kennedy expressed presidential aspirations and announced his intention to challenge Joe Biden for the 2024 Democratic nomination[6]. Less than six months later, Kennedy changed tactics and announced that he would continue his presidential campaign as an Independent candidate.[7]
Once again, Kennedy shook up the political landscape on August 23, 2024 and announced that he would suspend his campaign and endorse former President Donald Trump.[8] Kennedy stated that he “no longer believe[d] that [he] ha[d] a realistic path to electoral victory,”[9] and that he would “now throw [his] support to President Trump.”[10] So as not to disadvantage President Trump, Kennedy attempted to withdraw his name from the presidential ballot in many battleground states. [11]
One of these states was North Carolina, which has given Kennedy headaches.[12] The North Carolina State Board of Elections rejected Kennedy’s request to remove himself from the ballot, citing that “it would not be practical to reprint ballots that have already been printed and meet the state law deadline to start absentee voting.”[13] The board also claimed that reprinting the ballots would leave North Carolina counties “without ballots until mid-September at the earliest and lead to significant additional costs.”[14] In an effort to force the hand of the North Carolina State Elections Board, Kennedy filed a lawsuit in Wake County Superior Court alleging that the state had “irreparably harmed” him and interfered with his right to free speech by denying his request for removal from the ballot.[15]
However, on September 5, 2024, Wake County Superior Court Judge Rebecca Holt denied Kennedy’s request to stop the county elections boards from distributing ballots affixed with his name to their constituents.[16] Judge Holt cited a state law that directs the first absentee ballots for the Nov. 5 , 2024 elections be mailed to requesters starting on Friday, August 6.[17] After the ruling, a Kennedy representative stated that the decision would be appealed.[18] In anticipation of Kennedy’s appeal, Judge Holt ordered the election board to stop sending out absentee ballots before noon on Friday, August 6.[19] The North Carolina Court of Appeals sided with Kennedy and halted the election board distribution of ballots naming him as a presidential nominee in order “to prevent the dissemination of inaccurate ballots.”[20] The North Carolina State Elections Board then formally requested that the North Carolina Supreme Court reverse the Court of Appeals’ decision. But the North Carolina Supreme Court affirmed the appellate court’s decision, stating that the Court “acknowledge[s] that expediting the process of printing new ballots will require considerable time and effort by our election officials and significant expense to the State. But that is a price the North Carolina Constitution expects us to incur to protect voters’ fundamental right to vote their conscience and have that vote count.”[21]
With the North Carolina Supreme Court taking Kennedy’s side,[22] Wisconsin and Michigan remain the only state refusing to remove Kennedy from the ballot.[23]
[1]Campaign of 1960, John F. Kennedy Presidential Library and Museum (last visited Sept. 6, 2024), https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/campaign-of-1960.
[2]See Richard Cavendish, The Assassination of Robert Kennedy, History Today (June 6, 2008), https://www.historytoday.com/archive/months-past/assassination-robert-kennedy; Tina Cassidy, The Surprising Role Jackie Kennedy Onassis Played in Saving Grand Central, Bloomberg (Feb. 5, 2013), https://www.bloomberg.com/news/articles/2013-02-05/the-surprising-role-jackie-kennedy-onassis-played-in-saving-grand-central; Charity Group Recalls John Kennedy Jr., The New York Times (Dec. 8, 1999), https://www.nytimes.com/1999/12/08/nyregion/charity-group-recalls-john-kennedy-jr.html:; John A. Farrell, Ted Kennedy’s Complicated Legacy, From Chappaquidick to Senate Lion, Time (Oct. 29, 2022), https://time.com/6226087/edward-kennedy-biography/.
[3] Max Matza, RFK wins bid to remove name from ballot in two swing states, BBC News (Sept. 6, 2024), https://www.bbc.com/news/articles/cx2lzly212do.
[4]Robert F Kennedy Jr. takes big business to task over pollution at SXSW Eco, The Guardian (Oct. 10, 2016), https://www.theguardian.com/sustainable-business/2016/oct/10/robert-f-kennedy-jr-sxsw-eco-climate-change-big-business-economic-policy.
[5] Brigid Kennedy, A running list of RFK Jr.’s controversies, The Week (July 31, 2023), https://theweek.com/2024-presidential-election/1025265/a-running-list-of-rfk-jrs-controversies.
[6] Rashard Rose et al., Robert F. Kennedy Jr. files paperwork to run for president as a democrat, CNN (Apr. 5, 2023), https://www.cnn.com/2023/04/05/politics/robert-kennedy-president-democratic-nomination/index.html.
[7] Aaron Pellish, Robert F. Kennedy Jr. announces independent run for president, ending Democratic primary challenge to Biden, CNN (Oct. 9, 2023), https://www.cnn.com/2023/10/09/politics/kennedy-independent-campaign/index.html.
[8] Kathryn Watson, RFK. Jr. endorses Trump and suspends presidential campaign, CBS News (Aug. 23, 2024), https://www.cbsnews.com/news/rfk-jr-ends-presidential-bid/.
[10] Jonathan J. Cooper et al., RFK Jr. suspends his presidential bid and backs Donald Trump before appearing with him at his rally, AP News (Aug. 23, 2024), https://apnews.com/article/rfk-jr-trump-speech-arizona-a2638f89ddcb5de03edbe4574ca17d45.
[12] Robert Tait, RFK Jr sues North Carolina elections board to remove his name from the ballot, The Guardian (Sept. 1, 2024), https://www.theguardian.com/us-news/article/2024/sep/01/rfk-jr-sues-north-carolina-elections-board-over-ballot.
[13]Key Swing State Rejects Request to Remove RFK Jr. From Ballot, Newsweek (Aug. 29, 2024), https://www.newsweek.com/north-carolina-swing-state-robert-f-kennedy-jr-2024-election-1946391.
[15] Nadine Yousif, RFK Jr sues to remove name from North Carolina ballot, BBC (Sept. 1, 2024), https://www.bbc.com/news/articles/ckgw9dg55l9o.
[16] Gary D. Robertson, North Carolina judge rejects RFK Jr.’s request to remove his name from state ballots, AP News (Sept. 5, 2024), https://apnews.com/article/north-carolina-ballot-rfk-lawsuit-823b4e93686561e66fd085a540a40665.
[22] Jordan Rubin, Robert F. Kennedy Jr. is of North Carolina ballot, thanks to GOP-majority state Supreme Court, MSNBC News (Sept. 10, 2024), https://www.msnbc.com/deadline-white-house/deadline-legal-blog/robert-f-kennedy-jr-north-carolina-ballot-removal-rcna170421.
State constitutions are not replicas of the United States Constitution: they are independent guarantors of liberty. The North Carolina Supreme Court will soon decide two cases that could increase protections for economic liberty across the state, Singleton v. North Carolina Department of Health and Human Services[1] and Kinsley v. Ace Speedway Racing Ltd.[2] Litigants in both cases have asserted rights under the Fruits of Their Labor Clause[3]—a unique provision of the North Carolina Constitution with no direct counterpart in the United States Constitution.[4] The Court now faces a choice between lockstepping[5] with federal jurisprudence or returning to an interpretation of the clause that offers more robust protections for economic liberty. The justices seem inclined not to give the Fruits of Their Labor Clause short shrift.[6]
The Fruits of Their Labor Clause
The Fruits of Their Labor Clause was added to the North Carolina Constitution during Reconstruction.[7] The clause resides in the constitution’s Declaration of Rights between words lifted directly from the Declaration of Independence.[8] The full provision states the “self-evident” truth that “all persons are created equal” and possess “inalienable rights” to “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”[9] Americans at the time would have viewed the clause as the recognition of an already existing right rather than the creation of a new right from whole cloth. [10]
The drafters of the 1868 Constitution added the Fruits of Their Labor Clause as an anti-slavery provision.[11] Steeped in Lockean natural rights theory,[12] the drafters believed that a special evil of slavery was that “another man” got “to hold and enjoy the fruits of [the slave’s] labor.”[13] They feared that simply applying the Bill of Rights to the states would not be enough to secure the “civil and political rights” of freed Blacks.[14] Thus, the drafters decided that safeguarding the right of all people to earn an honest living would require constitutional protection.[15] By adding the Fruits of Their Labor Clause, the drafters sought to bring North Carolina’s Constitution into closer alignment with the natural law by securing rights omitted from the federal constitution.[16]
In its early years, the Fruits of Their Labor Clause was invoked to limited effect.[17] Starting in 1940, however, plaintiffs wielded the clause to void laws that arbitrarily excluded citizens from working in their occupation of choice.[18] During this time, courts took a “more aggressive” approach towards the clause, applying a higher level of scrutiny than rational basis review.[19] But, by the second half of the twentieth century, affinity for the clause waned.[20] In Treants Enterprises, Inc. v. Onslow County,[21] the North Carolina Supreme Court applied vanilla rational basis review to a challenge brought under the clause.[22] Ever since, courts in North Carolina have followed Treants Enterprises’s approach.[23]
The Cases Pending Review at the North Carolina Supreme Court
The Court’s current approach to the Fruits of Their Labor Clause may soon change. In Singleton and Ace Speedway, litigants and their amici have asked the Court to consider whether rational basis review is the appropriate test for the Fruits of Their Labor Clause.[24] The cases arrive to the Court on a motion to dismiss for failure to state a claim. Both involve a challenge to public health laws.[25] The challengers argue that rational basis review flies in the face of history and common sense.[26] They contend that the Court’s current approach to the clause simply “mirrors the most deferential form of federal review,” allowing the government to prevail on flimsy rational justifications where factual inquiry is wholly optional.[27] The government, on the other hand, argues that the Fruits of Their Labor Clause was “never understood to prevent the government from regulating businesses to promote public welfare.”[28] Instead, according to the state, the clause was originally understood solely “as a condemnation of slavery.”[29] The state contends that a highly deferential approach is necessary to avoid harm to public health and safety.[30]
The facts of Singleton and Ace Speedway illustrate the stakes of the debate. In Singleton, the plaintiff is an ophthalmologist who runs a medical practice in the rural community of New Bern.[31] Under North Carolina’s certificate of need laws, a physician must obtain an operating room permit from the North Carolina Department of Health and Human Services before they can perform certain medical procedures.[32] The plaintiff is bringing an as-applied challenge to North Carolina’s certificate of needs laws on grounds that they limit competition rather than promoting public health.[33] Currently, he must drive to the only certified hospital in a three-county radius to perform routine eye surgeries that could be safely performed at his office.[34] The hospital charges fees that increase the cost of surgery by thousands of dollars.[35]
By contrast, in Ace Speedway, the defendant is a NASCAR racetrack that is challenging a shut-down order issued by state health officials during height of the COVID-19 pandemic. [36] The defendant contends that the shut-down order was issued in retaliation for the speedway owner’s public criticism of Governor Roy Cooper’s response to the pandemic.[37] It points to nearby racetracks that were not ordered to shut down.[38] And it contends that the government-mandated shut down infringed upon the right to earn a living.[39] Interestingly, the ACLU and the Institute for Justice, advocates on opposite ends of the political spectrum, have filed briefs in support of the plaintiff.[40]
Implications: A Right with New Bite
A victory for the government challengers in either case could have significant ramifications for peoples’ economic liberties in North Carolina. If the Court rejects the government’s argument for rational basis review, the Fruits of Their Labor Clause would gain new teeth. Government regulations that burden a citizen’s right to earn a living would be subject to increased scrutiny. The first domino to fall may be occupational licensing regulations that can show no benefit to public health, safety, or welfare.[41] In the long run, a more muscular approach to the Fruits of Their Labor Clause may remove unnecessary hurdles to entering the work force,[42] promote the formation of small businesses,[43] and make goods and services cheaper for North Carolinians.[44] What is more, the move would affirm a core tenant of American federalism. As Justice Brennan observed, “the full realization of our liberties cannot be guaranteed”[45] if state constitutions do not function as independent bulwarks of liberty, distinct from the federal constitution.
[4] The plaintiff in Singleton is not asserting a claim directly under The Fruits of Their Labor Clause. Instead, there, the plaintiff states a claim directly under North Carolina’s due process provision, the Law of the Land Clause. See N.C. Const., art. I, § 19. Nevertheless, as the plaintiff in Singleton states in an amicus brief filed in Ace Speedway, the Fruits of Their Labor Clause and the Law of the Land Clause protect one and the same right—the right to earn an honest living. Brief of Dr. Jay Singleton as Amici Curiae Supporting Plaintiff-Appellee at 2, Kinsley v. Ace Speedway Racing, Ltd., No. 260P22-1 (N.C. June 2, 2023), 2023 WL 4028053 [hereinafter I.J.’s Amicus Brief Supporting Ace Speedway]. Indeed, as North Carolina Supreme Court Justice Richard Dietz observed in a recent law review article, courts “often lump” the clauses together and “resolve them in the same analysis.” Richard Dietz, Factories of Generic Constitutionalism, 14 Elon L. Rev. 1, 21, 29 (2022).
[5] For a discussion of why state constitutional law often moves in lockstep with federal jurisprudence and why it sometimes departs, see Jeffery S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 7–27 (2008).
[6] At oral argument, concerns about restricting economic activity took center stage, with several justices questioning whether the government’s preferred reading of the North Carolina Constitution was protective enough. See, e.g., Oral Argument at 8:28, Kinsley v. Ace Speedway Racing, Ltd., No. 260P22-1 (Nov. 7, 2023), https://www.youtube.com/watch?v=iEOWwyUnPZU.
[7] John V. Orth & Paul Martin Newby, The North Carolina State Constitution 47 (2d ed., 2013).
[8]Id.; The Declaration of Independence para. 2 (U.S. 1776) (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”).
[10]Jud Campbell, Constitutional Rights Before Realism, 2020 U. Ill. L. Rev. 1433,1434–35, 1443 (2020). This understanding of rights carried forward into the twentieth century. See State v. Hay, 126 N.C. 999, 999 (N.C. 1900) (Douglas, J., Concurring) (explaining that Article I, Section 1 of the North Carolina Constitution “does not profess to confer these rights, but recognizes them as pre–existing and inherent in the individual by ‘right divine.’”).
[11] Richard Dietz, supra note 4, at 19–20; see also Joseph Ranney, A Fool’s Errand? Legal Legacies of Reconstruction in Two Southern States, 9 Tex. Wesleyan L. Rev. 1, 17 (2002). (discussing how “North Carolina . . . regulated black labor” during Reconstruction by “focus[ing] on apprenticeship laws.”).
[12] Locke’s famous labor theory of property is laid out in his Second Treatise on Government. See John Locke, Two Treatises on Government 305–06 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
[13] Dietz, supra note 4, at 20 (quoting Albion W. Tourgée, An Appeal To Caesar 244 (1884)).
[23]See, e.g., Tully v. City of Wilmington, 810 S.E.2d 208, 215 (N.C. 2018) (applying the rational basis test).
[24]I.J.’s Amicus Brief Supporting Ace Speedway, supra note 4, at 2 (noting that Kinsley and Singleton both “ask[] the Court to clarify the test that applies under Art. I, §19 when the government restricts the right to earn a living”); Reply Brief for Plaintiffs-Appellants at 2–3, Singleton v. N.C. Dep’t of Health and Human Servs., No. 260PA22 (N.C. Feb. 5, 2024), 2024 WL 635933.
[25]I.J.’s Amicus Brief Supporting Ace Speedway, supra note 4, at 2.
[40]I.J.’s Amicus Brief Supporting Ace Speedway, supra note 4, at 2 (emphasizing the violation of Ace Speedway’s right to earn a living); Brief of ACLU of North Carolina Legal Foundation as Amici Curiae Supporting Plaintiff-Appellee at 2, Kinsley v. Ace Speedway Racing, Ltd. No. 280PA22 (June 2, 2023), 2023 WL 4028007 (emphasizing the harm done to Ace Speedway’s free speech rights and the need for government accountability).
[41] Occupational licensing regulations were frequently struck down for violating the Fruits of Their Labor Clause in the recent past. See Dietz, supra note 4, at 21.
[42] Morris M. Kleiner & Evan J. Soltas, A Welfare Analysis of Occupational Licensing in the U.S. States, 90 Rev. Econ. Studs. 2481, 2483–84 (2023) (estimating that licensing an occupation for the first time would eliminate twenty-nine percent of jobs).
[43] Stephen Slivinski, Bootstraps Tangled in Red Tape, Goldwater Inst. (Feb. 10, 2015), https://www.goldwaterinstitute.org/bootstraps-tangled-in-red-tape (last visited Apr. 22, 2024) (discussing the negative impacts of occupational licensing on low-income entrepreneurs).
[44]See, e.g., Singleton Complaint, supra note 31, at 2 (stating that performing cataract surgery in Dr. Singleton’s office instead of the hospital required by certificate of need laws would cut costs from $6,000 to $1,800).
[45] William J. Brennan Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 489 (1977).
From the very first day of law school, students are taught that every legal action can be placed into one of two distinct categories: civil cases and criminal cases. This distinction implicates everything from the substantive rights of the parties, to the rules of procedure, to which courts have jurisdiction to hear the case.[1] However, despite these fundamental differences, the distinction between civil and criminal is not always as clear as it first appears. While this is apparent in a number of different areas of the law, none is clearer than North Carolina’s complex and often contradictory case law governing contempt of court proceedings.[2]
A recent case heard by the North Carolina Court of Appeals, Grier v. Grier,[3] highlights such a case where the law surrounding contempt proceedings continued to blur the line between civil and criminal law. The issue presented was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.[4] In other words: does the overarching essence of the case determine what remedies and penalties are available or does the specific substance of the proceeding control? For the time being, we are left without an answer.[5]
To understand this “nesting doll” dilemma, in which a party in a civil action initiates a criminal proceeding and seeks a civil remedy,[6] this article will provide a brief overview of the North Carolina rule governing the award of attorneys fees as a civil penalty, North Carolina laws governing criminal contempt proceedings, and a discussion about how these issues came together in Grier.[7]
Attorneys Fees Generally: A Civil Penalty
North Carolina follows the traditional “American Rule” regarding the award of attorneys fees,[8] holding that “a party can recover attorney[s] fees only if such a recovery is expressly authorized by statute.”[9] Such statutory authorization has typically been narrowly crafted to only apply in certain types of cases.[10] For example, N.C. Gen. Stat. § 50-13.6 authorizes the award of attorneys fees “[i]n an action or proceeding for the custody or support, or both, of a minor child . . . to an interested party acting in good faith who has insufficient means to defray the expense of the suit.”[11] While the overwhelming majority of statutes authorizing the award of attorneys fees in North Carolina are only applicable in the civil context,[12] there are circumstances in which a criminal defendant may be ordered to pay the costs of attorneys fees.[13] For example, N.C. Gen. Stat. § 7A-455 authorizes the court to order a criminal defendant to pay the reasonable attorneys fees incurred by appointed counsel.[14]
Yet, even when awarded in the context of defense of a criminal proceeding, the award of attorneys fees is quintessentially a civil remedy.[15] Rather than a criminal “punishment,” attorneys fees have typically been viewed by North Carolina courts as a civil penalty as most court-appointed attorneys fees are entered against criminal defendants in the form of a civil judgment.[16]
Criminal Contempt Proceedings Generally: A Criminal Proceeding
Black’s Law Dictionary defines contempt of court as follows: “The act of demeaning the court, preventig [sic] justice adminstration [sic], or disobeying a sentence of the court. It is [generally] criminal [in nature] and can lead to fines or imprisonment.”[17] However, North Carolina law surrounding contempt of court is somewhat more complicated than such a simple definition would lead one to believe.[18] For example, in North Carolina, contempt of court can be either civil in nature or criminal in nature.[19] What more, the overarching nature of the original action does not dictate the nature of the contempt proceeding.[20] For example, a criminal defendant can be held in civil contempt of court,[21] just as a civil defendant can be held in criminal contempt of court.[22] Further, a contemptnor defendant can be held in both criminal and civil contempt in the same proceeding, so long as each finding of contempt is based on separate and discrete conduct.[23]
However, determining whether a contempt proceeding is civil or criminal is of utmost importance for litigants because the nature of the proceeding will define the parties’ procedural and substantive rights (including what penalties can be imposed), the burden of proof required, and the right of appellate review.[24] Though, as North Carolina courts have repeatedly recognized, “the demarcation between [civil and criminal contempt] may be hazy at best.”[25] Therefore, North Carolina courts look to the purpose for which the proceeding was initiated, while considering the nature of the conduct being punished.[26] Generally, “[c]riminal contempt is imposed in order to preserve the court’s authority and to punish disobedience of its orders.”[27] Further, criminal contempt “is generally applied where the judgment is in punishment of an act already accomplished.”[28]
Upon a finding of criminal contempt, like all criminal statutes, the available penalties a trial court may impose are codified.[29] Generally, a criminal contemptnor can be punished via a judicial censure, a fine, and/or imprisonment for up to thirty days.[30] As noted in the statutory framework of the North Carolina general statutes, the provisions pertaining to criminal contempt were meant to preempt existing common law by providing a uniform and exclusive statutory scheme governing such proceedings.[31]
Criminal Contempt in the Family Law Context: A Civil Action
The interaction of North Carolina law governing attorneys fees and contempt of court collided in Grier v. Grier.[32] In this case, the contemptnor defendant, Mrs. Grier, was held in criminal contempt of court for violating the court’s child custody order.[33] As a result of the finding, the prosecuting party, Mr. Grier, sought an award of attorneys fees from Mrs. Grier under N.C. Gen. Stat. § 50-13.6.[34] Mrs. Grier challenged the award of attorneys fees as an improper remedy under the exclusive criminal contempt remedies enumerated at N.C. Gen. Stat. § 5A-12.[35] Ultimately, the question asked to the court was whether a party in a family law dispute (a civil proceeding) prosecuting a claim of criminal contempt of court (a criminal proceeding) could recover attorneys fees (civil penalty) as a sanction.
If the answer would be yes, how would that implicate the rule of lenity, holding that statutory ambiguity should be resolved in favor of the defendant? Would that mean that the remedies provided in N.C. Gen. Stat. § 5A-12 are not exclusive, despite language to the contrary?
If the answer is no, would that create a bright line rule that the substance of a proceeding overwrites the overarching essence of the case? Would that mean that the award of attorneys fees under N.C. Gen. Stat. § 50-13.6 would be limited only to those proceedings substantively connected to the custody proceeding and while excluding related disputes arising through the course of the litigation? Would it create perverse incentives for litigants to force their opposing party to permit a violation of court orders or to engage in the costly prosecution of criminal contempt proceedings without a monetary remedy?
Unfortunately, the court declined to answer.[36] While recognizing the challenging internal conflict within the laws, the court concluded that Mr. Grier did not meet the statutory requirements of N.C. Gen. Stat. § 50-13.6 which required that he have “insufficient means to defray the expense of the suit.”[37] Notably, the North Carolina Supreme Court has previously disposed of a similar case in which this exact question was raised on procedural grounds.[38] So, until a case arises which cannot be disposed of on unrelated grounds, the question of whether a party in a civil case, prosecuting a criminal contempt charge, can recover a civil remedy of attorneys fees remains open ended.
[1]Lawsuits, North Carolina Judicial Branch, https://www.nccourts.gov/help-topics/lawsuits-and-small-claims/lawsuits (explaining the difference between civil and criminal cases).
[2]See Spencer L. Blaylock Jr., Contempt of Court — Civil or Criminal, 36 N.C. L. Rev. 221, 223 (1956) (observing that “much confusion” has arisen regarding North Carolina’s contempt of court statutory framework and that it has been consistently “applied by the lower courts and attorneys” in improper ways).
[3] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).
[13] John Rubin, Are Attorney Fees’ Permissible?, UNC School of Government, https://www.sog.unc.edu/resources/faqs/are-attorneys%E2%80%99-fees-permissible
[16] State v. Webb, 591 S.E.2d 505, 513 (N.C. 2004); see also State v. Jacobs, 648 S.E.2d 841, 842 (N.C. 2007) (noting that an order for attorneys fees, even in a criminal case, is a civil penalty).
[18]See, e.g., State v. Wendorf, 852 S.E.2d 898, 902 (N.C. Ct. App. 2020) (noting that in addition to the differences between civil contempt and criminal contempt, North Carolina recognizes a difference between “direct” and “indirect” contempt).
[20]SeeId. (noting that the same conduct may be criminal contempt, civil contempt, or both, and that the nature and purpose of the court’s “punishment” will be determinative, rather than nature of the overarching case).
[21]NC Prosecutors’ Resource Online, UNC School of Government (last visited Mar. 18, 2024), https://ncpro.sog.unc.edu/manual/204-3#:~:text=A%20person%20may%20be%20held,to%20comply%20with%20that%20order.
[22] Michael Crowell, North Carolina Superior Court Judges’ Benchbook, UNC School of Government (last visited Mar. 18, 2024), https://benchbook.sog.unc.edu/judicial-administration-and-general-matters/contempt (noting that a party to a civil case, an attorney in a civil case, or even a witness in a civil case can be held in criminal contempt of court).
[23]See, e.g., Adams Creek Assocs. V. Davis, 652 S.E.2d 677, 687 (N.C. Ct. App. 2007) (holding a defendant in civil contempt for violating a court order and then separately held in criminal contempt for threatening a witness); see also N.C. Gen. Stat. §§ 5A-21(c), 5A-23(g) (2023) (prohibiting a defendant from being held in both criminal and civil contempt for the same conduct).
[24]See Hartsell v. Hartsell, 393 S.E.2d 570, 575 (N.C. Ct. App. 1990) (noting that civil contempt proceedings do not afford defendants the same procedural and substantive protections as criminal contempt proceedings); see also O’Briant v. O’Briant, 329 S.E.2d 370, 372 (N.C. 1985) (noting that criminal contempt proceedings trigger Constitutional safeguards applicable to all criminal proceedings).
[25] State v. Revels, 793 S.E.2d 744, 747 (N.C. Ct. App. 2016).
[31]See, e.g., N.C. Gen. Stat. § 5A-11(a) (2023) (providing that the statutorily enumerated grounds for criminal contempt “are exclusive, regardless of any other grounds for criminal contempt which existed at common law”).
[32] Grier v. Grier, No. COA 22-37, 2022 N.C. App. LEXIS 832 (N.C. Ct. App. Dec. 6, 2022).
The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]
As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]
Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]
The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.
While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.
I. The Procedural Path
A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]
Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]
While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.
But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]
In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]
On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]
With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.
II. Regressive Originalism
Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.
The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.
As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]
The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]
Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.
But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]
In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]
The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]
The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]
Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.
In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]
In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]
Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.
III. Manipulation of Political Accountability
The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]
This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.
But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.
The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]
The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]
But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.
The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.
Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]
But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.
In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.
The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.
Conclusion
While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.
This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.
The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.
Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.
*. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments. ↑
. See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865. ↑
. See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129. ↑
. Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting). ↑
. Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”). ↑
. Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”). ↑
. See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))). ↑
. SeeHarper III, 886 S.E.2d at 412–14 (collecting cases). ↑
. See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021). ↑
. See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”). ↑
. See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009). ↑
. See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”). ↑
. See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”). ↑
. Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). ↑
. Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV). ↑
. As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id.↑
. Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”). ↑
. Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III). ↑
. For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023). ↑
. CompareHarper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional). ↑
. Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id.↑
. See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260). ↑
. See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402. ↑
. Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)). ↑
. Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02. ↑
. See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020). ↑
. For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109. ↑
. Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)). ↑
. Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29. ↑
. Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)). ↑
. See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary). ↑
. See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001). ↑
. See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”). ↑
In 2018, the North Carolina General Assembly passed a slate of amendments to the State Constitution.[1] Among these amendments was the creation of a State Constitutional right to hunt, fish, and harvest wildlife.[2] The amendment was ratified in 2018 by 57% of North Carolina voters.[3]
Now codified as N.C. CONST. Art. I. § 38, the provision reads:
“The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”[4]
On November 10th, 2020, a group of individuals spearheaded by the Coastal Conservation Association of North Carolina filed a lawsuit against the State of North Carolina, alleging that the State was “fail[ing] to satisfy its obligation” to protect the fish population of the State under the public-trust doctrine and the new constitutional right.[5] Specifically, the plaintiffs alleged that “the State has breached its duties under the public-trust doctrine by mismanaging North Carolina’s coastal fisheries resources, resulting in a decades-long, uninterrupted, dramatic decline in these resources overall, as well as a decline in the health of multiple, specific species and/or stocks of these fish.”[6] They further alleged, “The once vibrant public fishing for [popular fish species] in North Carolina’s coastal waters has all but vanished.”[7]
As stated in Fabrikant, “The public-trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public.”[8] It is ancient in its origins but was first recognized in North Carolina in 1903.[9] “The public-trust doctrine… involves… public-trust lands which are lands and associated bodies of water that the State holds in trust for the benefit of the public; and Public-trust rights, which are those rights held in trust by the State for the use and benefit of the people of the State in common.”[10]
Plaintiffs’ essential argument was that the public-trust doctrine, as paired with the new amendment, “imposes a fiduciary duty on the State to manage and regulate the harvest of these fish in a way that protects the right of current and future generations of the public to use public waters to fish.”[11]
It took the State only a short time to respond to this complaint with a motion to dismiss.[12] The State claimed sovereign immunity from the suit, that the public-trust doctrine did not create an affirmative fiduciary duty on the State, that the public-trust doctrine did not create a cause of action because only the State has the power to enforce the doctrine, and that the State was not violating the constitutional rights of its citizens in regards to its regulation of the fisheries.[13]
The Wake County Superior Court denied this motion in its entirety, and the State immediately appealed from that order.[14]
The key decision the North Carolina Court of Appeals was tasked with making was whether or not the North Carolina constitutional right to hunt and fish places an affirmative constitutional duty on the State to preserve the fish population for the people of the State. The Court answered this question with a resounding and unanimous yes.[15]
Judge Hampson, writing for a unanimous Court, held, “The State contends the language of [N.C. CONST. Art. I. § 38] places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good. We disagree.”[16] Looking to the wording of the provision, the Court held, “[t]he plain meaning of… ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.”[17]
The Court rejected wholesale the State’s contention that N.C. CONST. Art. I. § 38 means only that the State must liberally permit the public to engage in hunting and fishing activity.[18] Instead, the Court found that such a duty must exist because “the right to fish and harvest fish would be rendered meaningless without access to fish . . . Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time.”[19]
The Court also agreed with plaintiffs and held that “protecting fisheries falls within the purview of the public-trust doctrine . . . .”[20] The Court also held, as a matter of first impression, that claims under the public-trust doctrine are not barred by sovereign immunity.[21]
Because the plaintiffs were alleging colorable claims under the North Carolina Constitution and the public-trust doctrine, the Court held that none of the State’s claims to sovereign immunity had merit.[22] Since plaintiffs also alleged “facts, which if proven, may tend to show the State did not properly manage the fisheries so as to forever preserve the fish populations for the benefit of the public,” the motion to dismiss for failure to state a claim was also properly denied.[23]
Substantial questions still remain about the extent of the right to hunt and fish in North Carolina. The first being whether the holding will be disturbed in any way by the North Carolina Supreme Court. The decision also begs the question of what exactly the State’s duty looks like in practice and how it will be enforced in the future.
These questions will have to be answered in the near future. For now though, we are left with the powerful pronouncement that the State of North Carolina must keep our fisheries “safe from injury, harm, or destruction for all time.”[24]
[1]See Joel Luther, What Would The Six Constitutional Amendments On The NC Ballot Do?, DUKE TODAY (October 25, 2018), https://today.duke.edu/2018/10/what-would-six-constitutional-amendments-nc-ballot-do.
[12] Defendant’s Motion to Dismiss at 1, Coastal Conservation Ass’n v. State of North Carolina (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607.
[13] Defendant’s Brief in Support of its Motion to Dismiss at 1-2, Coastal Conservation Ass’n v. State of North Carolina (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607
[14] Coastal Conservation Ass’n v. State of North Carolina, No. 20-CVS-12925, 2021 WL 9405572, at 1 (N.C.Super. July 28, 2021).
[15] Coastal Conservation Ass’n v. State, 2022-NCCOA-589, ¶ 34.
In North Carolina, a law enforcement officer’s career can be over with the stroke of a prosecutor’s pen. Cloaked in prosecutorial immunity, district attorneys enjoy a little-known power to decide that a law enforcement officer’s character for truthfulness is materially impaired and that he or she will not be called as a witness in any future criminal proceeding in the state. While the decision of whether to call an officer as a witness during a particular criminal prosecution is subject to the discretion of the prosecuting attorney, district attorneys often publish their decisions concerning an officer’s inability to testify at any future proceedings in a letter, known as a “Giglio letter,” to an officer’s employer. Once a district attorney writes a Giglio letter about a particular officer, that officer is functionally unable to make arrests, handle evidence, or interview suspects. As a result, law enforcement officers who receive Giglio letters are almost always terminated and forced to find new careers. Even if a prosecutor’s determination is based on mistaken information or is the product of retaliation, there is no mechanism by which a law enforcement officer in North Carolina can present evidence in his or her defense, challenge a district attorney’s decision, or appeal a Giglio determination.
On September 2, 2021, North Carolina enacted a law (the “Giglio Bill”) that directs the North Carolina Criminal Justice Standards Division of the Department of Justice to obtain the identity of every officer in the state subject to a “Giglio impairment” and republish his or her Giglio status to any law enforcement agency who hires them. Despite North Carolina’s strong tradition of robustly protecting the rights of its citizens to earn a living in their chosen profession, the Giglio Bill does not create any safeguards to ensure that Giglio determinations are accurately made in good faith after a complete review of all available evidence and fails to create any avenue for officers to appeal adverse Giglio determinations. This Article explores the unique harm presented by a Giglio letterto law enforcement officers, the urgent need for due process, and ultimately argues that the Giglio Bill runs afoul of the North Carolina Constitution.
Introduction
In 1972, John Giglio appealed his conviction for forging money orders to the Supreme Court of the United States on the basis of newly discovered “evidence.”[1] His theory was novel: the government failed to disclose a promise made to its key witness that the witness would not be prosecuted if he testified for the government against Mr. Giglio.[2] In Brady v. Maryland,[3] the Supreme Court had already determined that the state must disclose “exculpatory evidence” to criminal defendants. Although not “evidence” in the traditional sense, Mr. Giglio asserted that the undisclosed promise of immunity was of such importance to the key witness’s credibility, and therefore to Mr. Giglio’s defense, that the government’s failure to disclose it violated Mr. Giglio’s constitutional right to due process of law.[4]
The Supreme Court agreed.[5] In Giglio v. United States,[6] the Court held that prosecutors have a constitutional obligation to turn over evidence that can be used to impeach the credibility of a state’s witness “[w]hen the ‘reliability of [the] witness may well be determinative of guilt or innocence.”[7] The prosecution does not, however, have to disclose its “entire file” to defense counsel to meet these obligations.[8] Rather, information is constitutionally discoverable only if it is (1) favorable to the defendant because it is either exculpatory or impeaching, (2) known to a member of the prosecution team, (3) not otherwise publicly available, and (4) the information is “material,” which in turn depends on whether there is a “reasonable probability” that disclosure to the defense would yield a different result in the proceeding (the “Giglio Doctrine”).[9] Examples of such “material evidence” include evidence showing bias, interest, perjury, prior inconsistent statements, and other willful acts of dishonesty that are admissible to impeach testimony within the meaning of a state’s rules of evidence.[10]
In light of Giglio, many prosecutors understandably decline to call witnesses who have impeachable testimony.[11] A prosecutor’s decision not to call an officer to testify at trial due to the requirement of disclosure regarding an officer’s character is often referred to as the “Giglio impairment” of the officer.[12] But prosecutors have transformed the Giglio decision—intended to be a shield for criminal defendants—into a sword, making prosecutors the ultimate arbiters of who can, or cannot, serve as a law enforcement officer in a particular state.[13]
Over the last five decades, district attorneys across the country have read into the Giglio Doctrine a nonexistent obligation to publish sweepingly broad letters summarizing the reasoning behind Giglio impairment decisions, known as “Giglio letters,” to officers’ employers.[14] Even though prosecutors only have a constitutional obligation to disclose impeachment material under Giglio when the reliability of a witness “may well be determinative of guilt or innocence,”[15]Giglio letters are almost always preemptive in nature, meaning they are sent in the absence of a pending trial.[16] These preemptive Giglio letters inform an officer’s employer of the state’s refusal to call an officer as a witness at any future hypothetical trial, regardless of what the officer’s role or testimony may be.[17] These “preemptive” Giglio determinations frequently lack legal and factual justifications as it is impossible for a prosecutor to determine whether he or she will have disclosure obligations in reference to a particular officer without knowing the context of their future testimony.[18]
Although law enforcement agencies have an interest in knowing whether their employees can be called as witnesses, Giglio letters are colloquially referred to as “death letters” or “scarlet letters” by prosecutors and law enforcement officers because they are career killers.[19] Being “Giglioed” is an official finding that an officer is too untrustworthy to testify.[20] When a district attorney decides not to utilize an officer as a witness for any future criminal trial, the officer is functionally unable to make arrests or be involved in handling evidence.[21] Rendering them unable to perform basic duties, Giglio letters almost always result in the termination of officers or removal of their police powers.[22] As such, even though they lack the authority to directly control the hiring and firing of law enforcement officers, prosecutors have utilized the Giglio Doctrine to become de facto personnel managers for law enforcement agencies across the country.
Prosecutors have been known to maintain lists of officers they deem to be subject to Giglio impairment.[23] In light of the repeated killing of unarmed Black men and women across the United States by law enforcement officers,[24] the public has developed a keen interest in these so-called “Giglio” or “Brady”[25] lists.[26] Prosecutors generally keep these lists secret, but they often face withering criticism for doing so.[27] In response to public outcry, some prosecutors are publishing the identities of officers who they have deemed to be too untrustworthy to testify.[28] The public release of this information only raises the stakes for law enforcement officers, whose reputations can be permanently damaged by public accusations of dishonesty.[29]
In the last decade, pages of ink have been spilled explaining the failure of law enforcement officials, including prosecutors, to discover, report, and disclose “Giglio material” to criminal defendants, as well as the pitfalls and shortcomings of the Giglio Doctrine itself.[30] Almost nothing has been written, however, about the application of the Giglio Doctrine to law enforcement officers and the problems presented when officers are not afforded an opportunity to be heard. To that end, the purpose of this Article is to explain the grave problems presented by Giglio to law enforcement personnel, the roadblocks faced by officers in holding prosecutors accountable for abuse of Giglio, and the amplified harm presented to law enforcement officers by North Carolina’s Giglio Bill.
I. A Perpetrator Claiming Immunity
Considering the career-ending harm presented by Giglio letters, one might expect strong substantive and procedural safeguards to protect against “mistakenly or unfairly” subjecting an officer to an adverse Giglio determination.[31] But this is not the case. There is no process in North Carolina, or most other states, through which officers can present evidence in their defense, explain their actions, cross examine their accusers, or otherwise contest or appeal a Giglio impairment.[32] There is no requirement that officers even be provided notice before a Giglio determination is made.[33] Occasionally, officers are completely blindsided when, without warning, they receive a Giglio letter indicating they will never be called again to testify on behalf of the state.[34] If a Giglio letter is false, unfair, made in bad faith, based on incorrect or mistaken information, or simply the product of a grudge, there is nothing an officer can do.[35] Once officers are subject to a Giglio impairment, they are permanently unable to testify in criminal cases, and are frequently either terminated or relegated to restrictive duty status.[36]
Because officers have no recourse, prosecutors and other officials have often abused the Giglio Doctrine as a pretext for retaliation.[37] For instance, in the District of Columbia, the police department asked the prosecutor’s office to make Giglio determinations to facilitate the firing of officers who were otherwise protected from termination by the statute of limitations on their misconduct.[38] In Washington state, an officer claimed that he was improperly subject to a Giglio determination when the department wanted to punish him without navigating the obstacles of the formal disciplinary process.[39] In Texas, “police officers accused the Ellis County district attorney of labeling one of their colleagues a [Giglio] cop in order to help the police chief fire the officer.”[40] In Arizona, a district attorney was accused of using a Giglio letter to retaliate against two Phoenix officers to cover up the questionable actions of an investigator.[41] In Oregon, a deputy was placed on a Giglio list despite being cleared of any wrongdoing after allegedly butting heads with prosecutors.[42] In Tennessee, a district attorney issued a Giglio letter after two law enforcement officers blew the whistle on police department corruption.[43] In Macon County, North Carolina, after purportedly making misstatements about his law enforcement experience during a campaign rally, a candidate for sheriff received a Giglio letter from his local district attorney, who happened to be a financial supporter of his opponent.[44] With no avenue to challenge a prosecutor’s decision, and unable to afford an attorney, many officers are forced to leave law enforcement and find new careers.[45]
Law enforcement officers in other states have also sued district attorneys for sending false or inaccurate Giglio letters, but with mixed success.[46] Prosecutors have “quasi-judicial” immunity, which bars claims arising from activities “intimately associated with the judicial phase of the criminal process.”[47] This immunity applies even where a prosecutor acts maliciously or with an unlawful purpose.[48] In defense of writing Giglio letters, district attorneys have leaned heavily on this immunity to defend against the publication of Giglio letters that would expose ordinary citizens to civil liability for defamation or tortious interference.[49]
In Savage v. Maryland,[50] an officer alleged that a district attorney sent a Giglio letter to his employer in retaliation for the officer raising concerns about the district attorney’s use of racial epithets.[51] The Giglio letter allegedly resulted in the officer’s termination.[52] Purporting to adhere to the Supreme Court’s decision in Imbler v. Pachtman,[53] the U.S. Court of Appeals for the Fourth Circuit in Savage determined that the district attorney’s conduct was entitled to absolute immunity because, in the court’s view, “[d]ecisions regarding witness testimony—which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions—are a core prosecutorial function, directly tied to the conduct of a criminal trial.”[54]
Similarly, in Roe v. City & County of San Francisco,[55] a police officer alleged that after he circulated a legal memorandum criticizing prosecutorial conduct, the prosecutor stopped calling him as a witness, determined that there would be no prosecutions of the officer’s cases without corroborating evidence, and communicated that decision to the officer’s state employer—all of which led to the officer being reassigned because he no longer could “complete [his] duties.”[56] The officer sued, alleging retaliation for speaking out in violation of the First Amendment.[57] But that claim, the U.S. Court of Appeals for the Ninth Circuit concluded, was barred by absolute prosecutorial immunity.[58] The prosecutor’s failure to prosecute the officer’s cases, the court reasoned, was fully protected: “[t]here can be no question that the nature of the decision not to prosecute is ‘intimately associated with the judicial phase of the criminal process.’”[59] The prosecutor’s assessment of the officer’s credibility would be similarly protected, whether “accurate or not.”[60]
Because Giglio letters essentially end an officer’s career, extending absolute immunity to the publication of Giglio letters weaponizes Giglio and transforms prosecutors into the ultimate arbiters of who can, or cannot, be law enforcement officers in a particular jurisdiction. What the courts in Roe and Savage failed to acknowledge is the important difference between a prosecutor deciding who to call as a witness in a pending or identifiable prosecution and communicating with an officer’s supervisor before a criminal proceeding even exists. The key difference is whether the prosecutor’s actions concern case-related advocacy. While the former is a necessary task directly tied to a judicial proceeding, the latter is inherently administrative and advisory in nature and is, by definition, not intimately associated with the “judicial phase” of a criminal process before a “judicial phase” exists in the first instance.[61] In recent years, courts have correctly identified this distinction and accordingly declined to extend absolute immunity to the publication of Giglio letters.[62]
In Beck v. Phillips,[63] a former police officer sued the county district attorney for defamation.[64] The district attorney issued a Giglio letter claiming that the officer had lied about the circumstances surrounding the officer’s wife’s death.[65] The Iowa Supreme Court concluded that while the prosecutor’s decision not to prosecute cases involving the officer was entitled to absolute immunity, sending a Giglio letter to the officer’s employer was not.[66] The court characterized the latter as an “administrative function” of “merely advising local law enforcement authorities on how future criminal prosecutions should be conducted and how his office would deal with those cases.”[67] Because Giglio letters are “advis[ory]” in nature, the court determined that the publication of Giglio letters is “not a function to which absolute immunity attaches.”[68]
The Supreme Court of North Dakota reached a similar conclusion in Krile v. Lawyer.[69] In that case, the district attorney sent a Giglio letter to the chief of police after finding two letters of reprimand and several poor performance evaluations in the officer’s personnel file.[70] The Giglio letter indicated that the officer would not be called in any future prosecutions.[71] The police department immediately terminated the officer.[72] The officer sued the district attorney for defamation, but his complaint was dismissed.[73] On appeal, the North Dakota Supreme Court determined that while a district attorney has immunity in deciding who to call as a witness, publishing Giglio letters to an officer’s employer does not fall “within the proper discharge of [a district attorney’s] duties as a [state attorney].”[74] The court reasoned that “not every activity of a prosecutor is within a prosecutor’s official duties simply because it is performed by a prosecutor.”[75] The court held that the district attorney’s Giglio letter amounted to an advisory letter on how she might act in future hypothetical prosecutions, and therefore, the court declined to extend absolute immunity to this “administrative” action.[76]
One of the latest federal appellate decisions concerning prosecutorial immunity for civil damages in the context of a Giglio letter is Stockdale v. Helper.[77] There, two police officers sued a district attorney who emailed a Giglio letter to the city manager.[78] The U.S. Court of Appeals for the Sixth Circuit described the letter as the result of an “old grudge” against two officers who blew the whistle on department corruption.[79] The officers were immediately terminated.[80] Once again, because “[n]o identifiable trial loomed” when the prosecutor sent the email, the court found that the district attorney was not entitled to immunity.[81] Both sides appealed the Sixth Circuit’s decision on competing grounds, but the Supreme Court denied each party’s certiorari petitions.[82]
Unlike the Beck and Krile courts, the Stockdale court went one step further by attacking the substance of the Giglio letter itself.[83] In Stockdale, the district attorney based her Giglio determination on an allegation that one of the officers used a credit card to enter a home and assault someone—events that purportedly occurred ten years before the operative Giglio determination.[84] Despite extensive briefing, the district attorney failed to justify “how these musty accusations—upon which she did not act in bringing a prosecution—would amount to [Giglio] material in all future cases.”[85] The Stockdale court explained that a district attorney’s obligations under Giglio do not apply to “generic evidence about prior bad acts with only a ‘tenuous connection’ to a pending case.”[86] No less importantly, the court stated, the accusations against the officers were already public, and prosecutors are under no constitutional obligation to disclose information that is “readily available to the defense from another source.”[87] Protecting such communications, the court reasoned, risks stretching prosecutorial immunity “beyond reasonable bounds.”[88]
No North Carolina state court—or statute—has addressed what liability can attach from the publication of a preemptive Giglio letter. But the North Carolina Court of Appeals has tacitly acknowledged that preemptive Giglio letters may not be subject to prosecutorial immunity. The recent In re Washington County Sheriff’s Office[89] decision is instructive. In that case, a trial court judge issued an order sua sponte directing the State to disclose investigative materials concerning a particular officer in “any criminal matter” in which the State intended to call the officer as a witness.[90] On appeal, the Court of Appeals vacated the trial court’s ruling, concluding that it was an improper advisory opinion made in anticipation of future “theoretical” criminal prosecutions involving the officer.[91] While the decision in In re Washington County was limited to a Giglio determination made by a trial court (as opposed to a prosecutor), the decision stands for the proposition that preemptive Giglio letters are advisory in nature and are therefore not sufficiently associated with the “judicial phase of the criminal process” to give rise to prosecutorial immunity.[92]
II. North Carolina’s Giglio Bill
In the aftermath of the brutal murder of George Floyd,[93] North Carolina signed Senate Bill 300 into law on September 2, 2021.[94] The Giglio Bill’s overriding objective is to combat police violence and hold officers accountable for unreasonable uses of force.[95] To that end, the Giglio Bill places an affirmative obligation on law enforcement officers to intervene when unreasonable force is utilized by another officer,[96] encourages alternative methods of conflict resolution,[97] and places mental health and the use of force at the forefront of officer training.[98] Its comprehensive reforms allowed the Giglio Bill to garner support from across the political spectrum, including the North Carolina Conference of District Attorneys.[99] These reforms are well taken and represent a step in the direction towards meaningful reform of policing in North Carolina.
Among other provisions, the Giglio Bill directs the North Carolina Criminal Justice Standards Division of the Department of Justice (the “Division”) and the North Carolina Criminal Justice and Training Standards Commission (the “Commission”) to collect and maintain information about officer conduct, including, for example, uses of force (the “Critical Incident List”).[100] The Giglio Bill also directs the Division to collect reports identifying any officer subject to a Giglio impairment (the “Giglio Database”).[101]
In a section entitled “Requirement to Report Material Relevant to Testimony,”[102] any officer who has been informed that he or she “may not be called to testify at trial based on bias, interest, or lack of credibility” must notify the Division within thirty days.[103] The official making the Giglio determination must also notify and provide a copy of the Giglio letter to the Division within thirty days.[104] Once notified, the Division is directed to provide written notice of an officer’s Giglio status to the head of any future law enforcement agency to which an officer’s certification is transferred, as well as the district attorney in that agency’s prosecutorial district.[105] If an officer subject to a Giglio impairment has his or her certification transferred to a state agency, the Division is directed to notify every elected district attorney in every prosecutorial district in North Carolina of the officer’s Giglio impairment.[106] These notification obligations extend until the Giglio impairment is withdrawn,[107] which almost never occurs.[108]
The Giglio Bill does not create any standardized procedures for deciding when to issue a Giglio determination, what factors or evidence to consider, or whether to allow an officer to present evidence in his or her defense. There is no requirement that officers be provided notice before a Giglio determination is made, thereby eliminating any opportunity to contest accusations of Giglio impairment. Even if an officer is afforded a meeting, the Giglio Bill does not require that an officer be informed of the evidence being considered by an official in anticipation of a Giglio determination. There is also no requirement that the Division be informed of the reasoning behind a Giglio impairment. Instead, the Giglio Bill permits officials to make Giglio determinations in complete secrecy without notifying officers that Giglio impairments are being considered.
Rather than create a uniform set of Giglio guidelines or define “Giglio material,” each district attorney’s office, sheriff’s office, and police department must develop its own policies and procedures relating to Giglio determinations.[109] These policies and procedures are generally not made available either to the public (absent a public records request) or to the officers involved in a Giglio investigation.[110] Without a transparent set of uniform procedures governing the Giglio process or an overriding definition of “Giglio material,” Giglio determinations are left to the “eye of the beholder,” creating situations where some officers may be subject to Giglio determinations, while others may not—even if they engage in the same or similar conduct.[111] Furthermore, the lack of clear Giglio procedures leaves officers without any means to ensure that Giglio determinations are made in good faith after impartial consideration of the relevant evidence.[112]
The Giglio Bill also expands the number of individuals permitted to make Giglio determinations. Pursuant to N.C. Gen. Stat. § 17C-16 and § 17E-16, “agency heads”—meaning police chiefs and sheriffs, in addition to district attorneys and judges—are permitted to make Giglio determinations about their officers and report those officers to the Division without ever notifying their subordinates that Giglio determinations were ever being considered.[113] On one hand, police chiefs and sheriffs need to report untruthful conduct on behalf of their officers to the appropriate authorities in order to hold those officers accountable and to ensure that district attorneys are able to fulfill their constitutional obligations under Giglio. Being untruthful is not the same as being Giglio impaired, however, and most police chiefs and sheriffs are not lawyers and do not have formal legal education concerning the North Carolina Rules of Evidence, the Federal Rules of Evidence, or the Giglio decision and its progeny.[114] Without that educational foundation, the Giglio Bill creates an environment ripe for erroneous Giglio decisions.
Compounding the harm presented by this complete lack of safeguards, the Giglio Bill creates no avenue through which an officer can challenge either a Giglio impairment decision or the Division’s republication of a Giglio decision to future employers. In fact, the omission of any sort of due process from N.C. Gen. Stat. § 17C-16 and § 17E-16 appears to be intentional.[115] Pursuant to the newly created N.C. Gen. Stat. § 17E-15, law enforcement officers are able to challenge decisions placing them on the Critical Incident List, but officers are inexplicably unable to challenge a Giglio determination or contest the Division’s future Giglio notifications.[116] Instead, the Division is instructed to republish Giglio determinations—even if those determinations are defamatory, retaliatory, or otherwise erroneous—to an officer’s future employers with no oversight or any way for the officer to appeal.[117]
North Carolina’s failure to include any safeguards or judicial oversight to the Giglio determination process is incomprehensible because an explicit avenue for appeal was included for the Critical Incident List, and because, as proof it can be done, at least two other states have adopted laws or procedures that provide protection against the impact of a Giglio determination.[118] For example, a California statute[119] mandates that an adverse employment action “shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or [because] the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland.”[120] Similarly, in New Jersey, the Attorney General’s Office issued a law enforcement directive that discourages general-purpose Giglio determinations and allows police officers to seek review of a prosecutor’s determination from the prosecutor or the Office of the Attorney General.[121] Importantly, the New Jersey directive makes clear that such review “shall not interrupt or interfere with the prosecutor’s obligation to disclose information in the ongoing case.”[122]
Giglio letters do not appear to have any analogue in any other public employment setting in North Carolina. In fact, pursuant to N.C. Gen. Stat. § 150B-43, every licensed professional in North Carolina, from barbers to foresters, has a statutorily guaranteed mechanism by which to obtain judicial review of an occupational licensing board’s decision affecting their employment.[123] Now, even though Giglio letters almost always result in their termination, law enforcement officers may be the only exception to the rule guaranteeing judicial review of state-sanctioned decisions affecting a person’s employment.
III. The Giglio Bill and North Carolina’s Constitution
Given the glaring absence of due process, transparency, or safeguards, the Giglio Bill is likely unconstitutional.
Article I of the North Carolina Constitution declares thirty-seven rights to its citizens, some of which have no analogue in the United States Constitution and predate those declared in the Bill of Rights.[124]
Article I, Section 19 of the North Carolina Constitution provides:
No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.[125]
North Carolina’s “law of the land” clause is synonymous with due process of law, both in terms of substance and procedure.[126] It is well established that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential.”[127] This is especially true where a state attaches a “badge of infamy” to a citizen.[128]
The creation of Giglio databases with no mechanism for appeal or removal has already been deemed constitutionally problematic by courts in other jurisdictions. In 2017, the Philadelphia district attorney began compiling a “Do Not Call List” of officers who, in the district attorney’s view, were “tainted” and subject to Giglio impairments.[129] With no avenue to challenge the district attorney’s determination, the officers filed a lawsuit arguing that their placement on the “Do Not Call List” served as a stain on their professional reputations and violated their rights to due process.[130] Labeling the “Do Not Call List” a “blacklist of sorts,” the Commonwealth Court of Pennsylvania determined that the officers had a constitutionally protected interest in their professional reputation, which required notice and an opportunity to be heard prior to their placement on the “Do Not Call List.”[131] The court explained that “Giglio [does not] eliminate the right of innocent officers to be afforded a meaningful opportunity to argue why they should not be placed on the List or why they should be removed.”[132]
There is no greater “badge of infamy”[133] for law enforcement officers than a Giglio letter. Not only do N.C. Gen. Stat. § 17C-16 and § 17E-16 serve to perpetuate and memorialize “badges of infamy” on citizens in perpetuity without providing them any opportunity to be heard, but the Giglio Bill directs the state to take action and affirmatively republish Giglio determinations, even if those determinations are plainly erroneous, defamatory, or the product of mistaken information. With no avenue to present evidence in their defense or challenge a Giglio determination, law enforcement officers, unlike every other licensed professional in North Carolina, are not afforded any opportunity to defend their good name, reputation, honor, or integrity. This arbitrary and intentional omission of basic due process runs afoul of North Carolina’s strong traditions of robustly protecting the rights of its citizens to work, earn a living, and defend their reputations.
Unlike other states’ constitutions, the North Carolina Constitution also contains an—until very recently—often overlooked provision protecting the right of North Carolinians to enjoy the “fruits of their own labor.”[134] Article I, Section I of the North Carolina Constitution provides:
We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.[135]
The “fruits of labor” provision, as it is often called, was added to the North Carolina Constitution in 1868, shortly after the Civil War.[136] Passed the same year that North Carolina ratified the Fourteenth Amendment to the United States Constitution, the “fruits of labor” provision was likely intended to “strike an ideological blow at the slave labor system.”[137] North Carolina courts, however, largely ignored this provision until the mid-twentieth century, when it was applied to the State’s professional licensing powers.[138] The “fruits of labor” provision then lay dormant again until 2014, when the North Carolina Supreme Court applied it to a city ordinance capping towing fees.[139]
In 2018, the North Carolina Supreme Court published a precedent-setting decision in Tully v. City of Wilmington,[140] expanding the “fruits of labor” provision into the public employment context.[141] In that case, a Wilmington police officer was denied a promotion after he failed a mandatory examination that tested an officer’s knowledge of the law.[142] His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated.[143] Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results.[144] The City of Wilmington refused to hear the officer’s appeal, determining the test results “were not a grievable item” and that nothing could be done.[145] The North Carolina Supreme Court determined that this decision violated the officer’s constitutional rights under Article I, Section 1, reasoning that the “fruits of labor” provision applies “when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.”[146]
But Tully has far broader implications. The Tully court indicated that the “fruits of labor” clause protects a person’s “right ‘to engage in any of the common occupations of life,’ unfettered by unreasonable restrictions imposed by actions of the state or its agencies.”[147] In addition to failing to follow promotional policies, the North Carolina Supreme Court has stated that the “fruits of labor” clause is violated where the State “unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.”[148] For these reasons, the North Carolina Court of Appeals suggested that the North Carolina Constitution is more protective of the rights of North Carolinians than the United States Constitution.[149]
The mandated republication of an officer’s Giglio status directly to all future employers undoubtedly imposes “some stigma or disability” on an officer that will “foreclose the freedom to take advantage of employment opportunities.”[150] A Giglio determination is a scarlet letter for any law enforcement officer. The lack of procedural safeguards, due process, judicial review, or any requirement that notice be provided to an officer before a Giglio determination is made, creates an environment ripe for erroneous Giglio determinations, and renders the republication of Giglio decisions unfair to the officers involved. With no avenue to challenge the Division’s republication of a Giglio determination, even where a Giglio decision is premised on mistaken information, officers are unable to remove (or even contest) the stigma and disability placed upon them by the state and are deprived of their right to pursue their chosen profession free from unfair governmental interference.
Conclusion
The citizens of North Carolina have an undeniably compelling interest in identifying dishonest officers, holding them accountable, and prohibiting them from serving as agents of the state. There is no place in law enforcement for dishonest officers. In light of the ongoing epidemic of police violence in the United States, the Giglio Bill makes important reforms to policing in North Carolina. These measures are well-taken and represent a step in the right direction, although there remains much work to be done to repair the relationship between law enforcement and communities across North Carolina and the United States.
A delicate balance exists between a prosecutor’s constitutional obligation to produce exculpatory impeachment evidence to criminal defendants and an officer’s constitutional rights to due process and to enjoy the fruits of his or her labor. The notion that this balance cannot be struck, or that a prosecutor’s decision must always be afforded the greatest deference, is unsupported by current law and common sense.
Even though other states have created at least temporary solutions to the constitutional problems presented by Giglio, North Carolina failed to follow their example. The push for holding law enforcement accountable should not stop with the “blue line.” District attorneys, all the way down to the newest beat cop, need to answer for their actions and omissions. Without providing an opportunity to be heard or rebut an adverse Giglio determination, even where that determination is based on mistaken information or is a transparent pretext for retaliation, the Giglio Bill deprives officers of a central tenet of North Carolina’s organized system of justice: the right to be free from arbitrary and unfair government action. The provisions enacted by the Giglio Bill need meaningful reform to ensure that police officers receive the same constitutional protections as every other citizen in North Carolina.
*. B.A., Rhodes College; J.D., University of North Carolina School of Law.
[1]. Giglio v. United States, 405 U.S. 150, 150–51 (1972).
[2]. Id. at 151.
[3]. 373 U.S. 83 (1963).
[4]. Giglio, 405 U.S. at 151–53.
[5]. Id. at 154–55.
[6]. 405 U.S. 150 (1972).
[7]. Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).
[8]. United States v. Bagley, 473 U.S. 667, 675 (1985).
[9]. Id. at 682; see Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743, 748 (2015).
[10]. Bagley, 473 U.S. at 678–81.
[11]. See John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L.J. 437, 495 (2001) (explaining the exculpatory nature of a witness’s testimony that is both “inculpatory and critically important to the prosecution’s case”).
[12]. See Krile v. Lawyer, 2020 ND 176, ⁋ 5, 947 N.W.2d 366, 371 (2020) (defining “Giglio impairment” and citing other cases referencing the phrase).
[15]. Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Giglio only applies to “key” witnesses rather than “minor witnesses.” See, e.g., Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1355–56 (11th Cir. 2011); United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989).
[17]. See Letter from Randy Hagler, supra note 14 (noting that after a Giglio violation is alleged and reported, “the only hearing is after the fact and on the issue of disqualifying the officer from serving” and requesting that “procedures be established by statute that will allow an officer an investigation into the factual basis of the alleged dishonesty and a hearing”); see also NC Watchdog Reporting Network, DAs Warn Police About Untrustworthy Officers but Won’t Share with Public, Carolina Pub. Press (June 3, 2021), https://carolinapublicpress.org/46100/das-warn-police-about-untrustworthy-officers-but-wont-share-with-public/ (describing the secret nature of Giglio letters).
[18]. See United States v. Lujan, 530 F. Supp. 2d 1224, 1255 (D.N.M. 2008) (“The precise time at which Brady or Giglio evidence must be disclosed will thus depend on the specific nature of the evidence at issue.”).
[21]. See Denning, supra note 19; Keays, supra note 19; see also Letter from Randy Hagler, supra note 14 (“For working officers, [a Giglio letter] is a career ender.”).
[25]. Brady v. Maryland was the initial Supreme Court decision holding that a state must produce exculpatory evidence to criminal defendants. 373 U.S. 83, 87 (1963). This holding was expanded by Giglio to include evidence that could be used to impeach a witness’ character for truthfulness. Giglio v. United States, 405 U.S. 150, 153–55 (1972).
[26]. See, e.g., Brady List, Brady List, https://giglio-bradylist.com/; Denning, supra note 19; NC Watchdog Reporting Network, supra note 17.
[29]. The Implications of Brady-Giglio for Law Enforcement, supra note 13.
[30]. See Riley E. Clafton, Comment, A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery, 110 J. Crim. L. & Criminology 307, 309–11, 332 (2020); Jerry P. Coleman & Jordan Lockey, Brady “Epidemic” Misdiagnosis: Claims of Prosecutorial Misconduct and the Sanctions to Deter It, 50 U.S.F. L. Rev. 199, 224 (2016); David Crump, Brady v. Maryland, Attorney Discipline, and Materiality: Failed Investigations, Long-Chain Evidence, and Beyond, 45 Hofstra L. Rev. 515, 527 (2016); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209 (2011); Jason Kreag, The Jury’s Brady Right, 98 B.U. L. Rev. 345, 345–46 (2018); Christopher T. Robertson & D. Alex Winkelman, Incentives, Lies, and Disclosure, 20 U. Pa. J. Const. L. 33, 43–45 (2017); Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove That Assumption Wrong, 80 Fordham L. Rev. 537, 539–40 (2011); Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. Rev. 895, 920 (2020).
[36]. See, e.g., Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021) (discussing case of an officer unable to testify after receiving a Giglio letter).
[37]. See Abel, supra note 9, at 781; Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *13 (N.D. Okla. Feb. 12, 2014).
[38]. Abel, supra note 9, at 782; Conviction Integrity Project, Establishing Conviction Integrity Programs in Prosecutors’ Offices 26 n.16 (2012).
[39]. Abel, supra note 9, at 782 (citing Wender v. Snohomish County, No. C07-197Z, 2007 WL 3165481 (W.D. Wash. Oct. 24, 2007)). Officer Wender’s federal civil rights suit resulted in reinstatement and a $812,500 settlement. Id.
[40]. Id. (citing Telephone Interview with Patrick M. Wilson, Cnty. & Dist. Att’y, in Ellis Cnty., Tex. (Apr. 8, 2014)).
[43]. Stockdale v. Helper, 979 F.3d 498, 501–02 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).
[44]. Stone, supra note 34. In August 2018, Eric Giles, a sheriff’s deputy running to be sheriff of Macon County, was issued a Giglio letter by District Attorney Ashley Welch, who happened to be a financial supporter of his opponent. Id. According to the Smoky Mountain News, Mr. Giles made misstatements about his prior law enforcement experience during his campaign for sheriff. Id. District Attorney Welch’s Giglio letter made vague references to internal “procedures” which governed her decision, but Mr. Giles was not given an opportunity to be heard prior to District Attorney Welch’s decision. Id. According to District Attorney Welch, her office’s Giglio “procedures” were voluntarily put in place by her in 2015 after she attended a training conference for district attorneys in Raleigh. Id. Mr. Giles has now filed a lawsuit against Ashley Welch in Clay County Superior Court, and District Attorney Welch removed to the Western District of North Carolina. Stone, supra note 16; see Notice of Removal, Giles v. Hindsman, No. 1:21-cv-00256 (W.D.N.C. Sept. 27, 2021).
[45]. Abel, supra note 9, at 780–81.
[46]. See, e.g., Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004) (dismissing claims arising from the decision not to prosecute cases involving a former officer but allowing tort claims arising from the content of a Giglio letter); Singer v. Steidley, No. 13-CV-72-GKF-TLW, 2014 WL 580139, at *54 (N.D. Okla. Feb. 12, 2014) (dismissing defamation claims but allowing First Amendment retaliation claim).
[47]. Imbler v. Pachtman, 424 U.S. 409, 420, 430 (1976).
[48]. Id. at 427.
[49]. See, e.g., Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (holding that prosecutor was protected by qualified immunity).
[50]. 896 F.3d 260 (4th Cir. 2018).
[51]. Id. at 266.
[52]. Id.
[53]. 424 U.S. 409 (1976).
[54]. Savage, 896 F.3d at 270 (citing Imbler, 424 U.S. at 426.
[55]. 109 F.3d 578 (9th Cir. 1997).
[56]. Id. at 580–82.
[57]. Id.
[58]. Id. at 583.
[59]. Id. (citations omitted).
[60]. Id. at 584.
[61]. Stockdale v. Helper, 979 F.3d 498, 502–03 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021). Furthermore, in Kalina v. Fletcher, the Supreme Court emphasized the importance of limiting prosecutorial immunity only to those actions undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his or her role as advocate for the state. See 522 U.S. 118, 127 (1997). The Court has held that, when determining whether an action is entitled to prosecutorial immunity, a court must examine the “nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U.S. 219, 229 (1988). To that end, in Kalina, the Court evaluated each act in filing criminal charging documents separately, explaining how a prosecutor could be immune for filing the “information and the motion for an arrest warrant” but not for “personally attesting to the truth of the averments in the certification.” Kalina, 522 U.S. at 129. This principle is perhaps best illustrated by the determination that the senior law enforcement official in the nation—the Attorney General of the United States—is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions. Mitchell v. Forsyth, 472 U.S. 511, 520 (1985).
[62]. Stockdale, 979 F.3d at 502–03.
[63]. 685 N.W.2d 637 (Iowa 2004).
[64]. Id. at 641.
[65]. Id.
[66]. Id. at 645.
[67]. Id.
[68]. Id. (citations omitted).
[69]. 947 N.W.2d 366 (N.D. 2020).
[70]. Id. at 370.
[71]. Id. at 371.
[72]. Id.
[73]. Id. at 374.
[74]. Id. at 379.
[75]. Id.
[76]. Id.
[77]. 979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).
[78]. Id. at 501–02.
[79]. Id. at 500.
[80]. Id. at 501–02.
[81]. Id. at 503.
[82]. Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020), cert. denied, 211 L. Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (quoting Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996)).
[94]. Act of Sept. 2, 2021, 2021 N.C. Adv. Legis. Serv. 138 (codified in sections of N.C. Gen. Stat. chs. 14, 15A, 17A, 17C, 17E, 122C, 132, 143B, 150B, 153A, 160A). The rest of this Article will cite to the relevant sections of the North Carolina General Statute accordingly.
[97]. See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer training on specific issues such as community policing and minority sensitivity); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same); see also N.C. Gen. Stat. § 14-4(c) (effective Oct. 1, 2021) (providing for alternatives to punishment for violations of certain local ordinances when a person charged produces proof of a good-faith effort to seek assistance to address underlying factors related to mental health, homelessness, unemployment, or substance abuse).
[98]. See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer educating and training to develop knowledge and increase awareness of mental health and wellness strategies); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same).
[100]. See N.C. Gen. Stat. § 17C-15 (effective Oct. 1, 2021).
[101]. Id. § 17C-16(a), (f). While the Giglio Bill does not explicitly create a “database” for officers subject to Giglio impairments, the Division will have to create some system for logging and recording the names of all officers who are Giglio impaired in order to carry out its statutory directive.
[102]. N.C. Gen. Stat. § 17C-16(a) (effective Oct. 1, 2021).
[103]. Id.
[104]. Id. § 17C-16(b)–(c).
[105]. Id. § 17C-16(d).
[106]. Id.
[107]. Id. § 17C-16(e).
[108]. See Abel, supra note 9, at 788 (noting that any concessions prosecutors give officers regarding being on the Brady list, including reversing the decision altogether, are entirely voluntary).
[109]. See N.C. Gen. Stat. § 17C-16 (effective Oct. 1, 2021) (providing no guidelines, procedures, or definitions relating to Giglio guidelines or material).
[110]. Some larger prosecutorial districts have released their Giglio policies and procedures. See Disclosure of Exculpatory Evidence in Charlotte NC, Carolina Att’ys: Carolina L. Blog (Jan. 12, 2019), https://www.carolinaattorneys.com/blog/disclosure-of-exculpatory-evidence-in-charlotte-nc/. For instance, the Mecklenburg County District Attorney’s Office has established a Giglio committee to make decisions concerning whether a particular officer is Giglio impaired. Id. But their policy does not contain any provisions allowing an officer to challenge or appeal a Giglio determination. See id. North Carolina is not alone in its lack of a statewide policies and procedures for making Giglio determinations. For instance, Oregon’s Giglio rules vary county to county, which results in prosecutors “continually adjusting what it takes to label an officer a ‘Brady [or Giglio] cop.’” Whitney Woodworth & Hannah Kanik, ‘Brady Lists’ of Untruthful Oregon Police Officers Inconsistent County to County, Statesman J. (July 13, 2020, 6:59 AM), https://www.statesmanjournal.com/story/news/2020/07/13/brady-list-oregon-police-misconduct-cases-prosecutors-disclosure-exculpatory-evidence/5011457002/ (emphasis on “Brady” added).
[113]. See N.C. Gen. Stat. § 17C-16(a)(1) (effective Oct. 1, 2021); N.C. Gen. Stat. § 17E-16(a)(1) (effective Oct. 1, 2021); see also Roy Cooper, N.C. Dep’t of Just. Mutual Aid Agreements Between Law Enforcement Agencies in North Carolina 3 (rev. ed. 2014) (explaining that the head of an agency could be “the chief or sheriff”).
[114]. Christie Gardiner, Policing Around the Nation: Education, Philosophy, and Practice 32 (2017), https://www.policefoundation.org/publication/policing-around-the-nation-education-philosophy-and-practice/. In 2017, “17.1% of CEOs (chiefs and sheriffs) ha[d] a high school diploma, 19.0% ha[d] a two-year degree, 28.7% ha[d] a four-year degree, 32.1% ha[d] a master’s degree, and 3.0% ha[d] a doctorate or other terminal degree (for example, J.D or Psy.D.).” Id. What’s more, the Giglio Bill does not require that police chiefs or sheriffs undergo any training concerning Giglio and its progeny.
[116]. N.C. Gen. Stat. § 17E-15(d) (effective Oct. 1, 2021). In In reWashington County Sheriff’s Office, the North Carolina Court of Appeals had an opportunity to opine whether any due process is required before the issuance of a Giglio determination but declined to address the question as it was not necessary to the resolution of the case. In reWashington Cnty. Sheriff’s Off., 843 S.E.2d 720, 721 (N.C. Ct. App. 2020). On appeal, the officer asserted that his due process rights were violated because the trial court failed to conduct any hearing prior to unilaterally directing the state to turn over investigative materials about the officer in all future criminal trials where the officer is called as a witness. Id. at 721–22. Instead, the Court of Appeals vacated the trial court’s order as an improper advisory opinion. Id. at 723.
[117]. N.C. Gen. Stat. § 17C-16(d) (effective Oct. 1, 2021).
[118]. See, e.g., Cal. Gov’t Code § 3305.5(a) (2014) (mandating that officers cannot be fired solely for being on a Brady list); Attorney General Law Enforcement Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States from Gurbir S. Grewal, N.J. Att’y Gen., to Cnty. Prosecutors 8–9 (Dec. 4, 2019) [hereinafter Directive Establishing County Policies], www.nj.gov/oag/dcj/agguide/directives/ag-Directive-2019-6.pdf (directing New Jersey prosecutors to make a Giglio decision on a case-by-case basis and allowing officers to review the determination).
[119]. Cal. Gov’t Code § 3305.5(a) (2014).
[120]. Id. (emphasis added).
[121]. Directive Establishing County Policies, supra note 118, at 8–9.
[122]. Id. at 8.
[123]. See N.C. Gen. Stat. § 150B-43 (1973) (“Any party or person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the party or person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article . . . .”).
[124]. Grant E. Buckner, North Carolina’s Declaration of Rights: Fertile Ground in A Federal Climate, 36 N.C. Cent. L. Rev. 145, 149–53 (2014).
[127]. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
[128]. Id. (quoting Wieman v. Updegraff, 344 U.S. 183, 191 (1952)).
[129]. Fraternal Ord. of Police Lodge No. 5 ex rel. McNesby v. City of Phila., No. 1295 C.D. 2019, 2021 WL 5182646, at *1, *4 (Pa. Commw. Ct. Nov. 9, 2021).
[130]. See id. at *6–7.
[131]. Id. at *33–37.
[132]. Id. at *27.
[133]. Constantineau, 400 U.S. at 437 (quoting Wieman, 344 U.S. at 191).
[134]. N.C. Const. art. I, § 1.
[135]. Id.
[136]. Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (citing John V. Orth, The North Carolina State Constitution with History and Commentary 38 (1993)).
[137]. Orth, supra note 136, at 38.
[138]. SeeMole, 866 S.E.2d at 777. These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm. See, e.g., Roller v. Allen, 96 S.E.2d 851, 854 (N.C. 1957); State v. Ballance, 51 S.E.2d 731, 735 (N.C. 1949).
[139]. King v. Town of Chapel Hill, 758 S.E.2d 364, 371 (N.C. 2014).
[140]. 810 S.E.2d 208 (N.C. 2018).
[141]. Id. at 213.
[142]. Id. at 211.
[143]. Id.
[144]. Id.
[145]. Id.
[146]. Id. at 215.
[147]. Id. at 214 (quoting Presnell v. Pell, 260 S.E.2d 611, 617 (N.C. Ct. App. 1979)).
[148]. Presnell, 260 S.E.2d at 617 (citing Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).
[149]. Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (“We must again consider whether the analogous clause in the North Carolina Constitution is more protective and extends the guarantee of equal protection in the public employment context. As with due process, the fact that the Fourteenth Amendment does not provide a cause of action for Sergeant Mole’ does not necessarily foreclose the possibility that our state Constitution could yield a remedy: the United States Constitution is the floor of constitutional protections in North Carolina, not the ceiling.”).
Since ancient times, people have recognized the need for judges to be impartial.[1] On a related topic, Alexander Hamilton wrote that the “complete independence of the courts of justice is peculiarly essential in a limited constitution.”[2] Two recent North Carolina cases have revealed areas for reform to further ensure impartiality in the North Carolina judicial system.
Lake v. State Health Plan for Teachers and State Employees[3] concerns a class action lawsuit by retired state employees challenging reforms to state health care laws.[4] On appeal, five justices on the North Carolina Supreme Court disclosed that close family members or their estates could be class members and, therefore, interested in the suit.[5] The North Carolina Supreme Court is composed of seven justices, and four of them are needed to constitute a quorum.[6] The quorum requirement would mandate a dismissal if all of these justices recused.[7] The court invoked the common law rule of necessity to hear the case despite the ethical rules otherwise mandating their recusal.[8]
North Carolina State Conference of the National Association for the Advancement of Colored People v. Moore[9] concerns litigation challenging two 2018 North Carolina constitutional amendments on the grounds that the amendments were invalid ab initio because members of the General Assembly were elected from racially gerrymandered districts.[10] When the case went to the North Carolina Supreme Court, the NAACP moved to have two justices, Phil Berger, Jr. and Tamara Barringer, disqualified from the case.[11] The plaintiff argued that Justice Barringer needed to recuse herself because she voted for the amendments.[12] It also argued that Justice Berger needed to recuse because he is the son of Senate President Pro Tempore, Phil Berger, who voted in favor of the amendments and is a defendant.[13] Justices Berger and Barringer declined to recuse themselves in separate orders.[14]
North Carolina does not have a system where alternates can fill in for a recused or disqualified justice or statutes creating a panel to hear a case where a quorum is not available.[15] The state does have a statute that allows for an alternate justice to serve whenever a justice is determined to be incapacitated.[16]
Lake and Moore reveal the flaws in ethical rules where justices cannot elect to have alternatives chosen. Given that ethics are involved, there are no easy answers to these questions. For instance, one justice may decide that the North Carolina Code of Judicial Conduct requires that she recuse herself because her participation may create too much of a risk of the public thinking that judges will unscrupulously decide cases based on pecuniary, familial, or partisan interest.[17] Another justice may decide to hear the case notwithstanding these concerns over public reception because of a recusal’s potential to act as a de facto vote against the petitioner.[18] Rather than forcing justices into these precarious dilemmas, some variation of the following reforms should be adopted in North Carolina.
The first proposal for reform is to have a standing panel of alternative justices ready to hear cases where too many justices are disqualified and a quorum is not possible.[19] The second is to authorize the summoning of a number of retired judges from that panel or a predetermined list that reflects the partisan makeup of the court to hear a case wherein the justices are disqualified from participating but a quorum would still be present.[20]
Two other potential reforms exist, but an issue with them illustrates what the proposed reforms should account for. One of them would be to allow the North Carolina Supreme Court to certify to the governor that all or some of its justices are disqualified, after which the governor would commission the requisite number of justices.[21] Another would be to allow the North Carolina Supreme Court to summon retired or currently serving trial or appellate judges to serve on the court.[22] The issue with either of these reforms is that whoever chooses these ad hoc alternate justices would have an incentive to pick people likely to rule the way they want because they would know about the case causing the conflict of interest.[23] Due to this problem with ad hoc appointments, recusal reforms should focus on commissioning a panel or list of retired judges to be on call whenever cases like Lake arise—where too many justices are disqualified from participating, but the panel should be constituted before any of those cases arise.
Composing this panel of retired judges and justices would be more desirable than composing it of practicing attorneys or legal scholars because former judges will have experience in deciding cases on legal, as well as factual bases.[24] Still, a panel of scholars or practicing attorneys might be more desirous because conflicts of interest affecting all judges—like laws regarding judicial salaries and retirement benefits—might not affect them.[25] Perhaps the legislature could get the advantages of both approaches by having two panels or lists, one consisting of retired judges and another consisting of practicing attorneys and legal scholars, and the circumstances would dictate from which panel or list to draw the alternates. The nuances involved in balancing these benefits and other questions—like who chooses the members of the panel or list—should be weighed by the state legislature in choosing which approach to take, but it should choose a system where the alternate justices are chosen before any cases arise.
Regarding cases like Moore where there would be a quorum despite the potential recusals, a statute should still be enacted to authorize the summoning of justices from a standing panel or predetermined list. Without such a provision, justices might justify their decision not to recuse, despite a valid reason to do so, because they fear their recusal would be a de facto vote to affirm the lower court’s decision.[26] This panel or list should be representative of the current partisan makeup of the court to prevent the following issue that can motivate a justice not to recuse.[27] Without such a provision, the justice might fear that their recusal might cause the partisan makeup of the justices hearing the case to be too biased in favor of either party.[28] The current partisan constitution of the North Carolina Supreme Court and how Moore implicated partisanship illustrate this point.
Four justices on the North Carolina Supreme Court are Democrats and three of them are Republicans.[29] Justices Berger and Barringer are two of the Republicans.[30] Even though Berger and Barringer did not raise the following concern in their motions to deny recusal,[31] justices in this position would be justified in thinking that at least one of the Democratic justices could be convinced to vote with the Republican ones.[32] If one of these justices were so convinced, then the outcome of the case would be dictated by the justices’ recusal.[33]
Even though the two proposed reforms would not affect the outcomes of Lake or Moore, these two cases illustrate the need for them because the current incentive structure is for justices not to recuse even where they are mandated by law or where one could argue they should as an ethical matter. Rather than force justices into these ethical dilemmas, the legislature should, as argued above, create a panel system of alternative justices to serve when a quorum would otherwise be denied and allow for members of that panel or members of a list of alternative justices to fill in for a disqualified or recused justice.
[1]See Exodus 23:8 (“Neither shalt thou take bribes, which even blind the wise, and pervert the words of the just”); Code Just. 3.5.1 (Valens, Gratian, and Valentinian 376) (Fred H. Blume trans., n.d.), http://www.uwyo.edu/lawlib/blume-justinian/_files/docs/Book-3PDF/Book%203-5.pdf (stating judges cannot decide their own cases).
[2] The Federalist No. 78, at 429 (Alexander Hamilton) (George Stade ed., 2006).
[4]See generally Lake v. State Health Plan for Tchrs. & State Emps. (Lake I), 12–CVS–1547, slip op. (N.C. Super. Ct. Oct. 11, 2016), https://lakeclasscase.com/wp-content/uploads/2016/09/59.Order-Granting-Motion-for-Class-Certification.2016-10-11.pdf (class certification); Lake v. State Health Plan for Tchrs. & State Emps. (Lake II), 825 S.E.2d 645, 648–49 (N.C. App. 2019) (other factual and procedural history).
[5] Lake v. State Health Plan for Tchrs. & State Emps. (Lake III), 852 S.E.2d 888, 889–90 (N.C. 2021); see also N.C. Code of Jud. Conduct Canon 3C(d)(iii) (stating that judges are disqualified from participating in a case where a family member “within the third degree of relationship” to the judge or his spouse has an “interest that could be substantially affected by the outcome of the proceeding).
[8] Lake v. State Health Plan for Tchrs. & State Emps. (Lake IV), 861 S.E.2d 335, 336 (N.C. 2021). Under the rule of necessity, a judge must hear a case if “disqualification would result in the lack of any competent court or tribunal.” Rule of Necessity, Black’s Law Dictionary (11th ed. 2019). Nothing in this article is intended to suggest that invoking the rule of necessity in Lake was unethical or immoral in itself, only that the situation as a whole illustrates the need for reform.
[13]Id. at 2. (citations omitted). In fairness to Justice Berger, Senator Berger was being sued in his official and not his personal capacity, Moore, 849 S.E.2d at 87 (caption), and suits against an official in her official capacity are suits against the government or her office itself, Estate of Long v. Fowler, 861 S.E.2d 686, 691 (N.C. 2021) (the state); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (the official’s office or “the state itself”).
[14] N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 18, at *6 (N.C. Jan. 7, 2022) (Berger, J.); N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 17, at *4 (N.C. Jan. 7, 2022) (Barringer, J.). As noted above with Lake, nothing in this post is intended to argue that the decisions not to recuse are unethical or immoral in themselves, only that they illustrate opportunities for reform.
[17]See N.C. Code of Jud. Conduct Canon 2A (stating judges should act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary”); id. Canon 3C(1) (noting that a judge should disqualify herself “in a proceeding in which the judge’s impartiality may reasonably be questioned”); In re Stone, 838 S.E.2d 165, 171 (N.C. 2020) (citing In re Edens, 226 S.E.2d 5 (1976)) (describing that whether conduct is judicial misconduct depends on what an “objective observer” would deem conduct harming “the public esteem for the judicial office”).
[18]See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 541 U.S. 913, 916 (2004) (Scalia, J.) (“The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.”).
[19]See Skylar Reese Croy, Comment, Step One to Recusal Reform: Find an Alternative to the Rule of Necessity, 2019 Wis. L. Rev. 623, 623, 658–60 (2019) (proposing an amendment to create a panel of professors and lawyers).
[20]Id. at 654 (arguing that a mostly conservative or liberal panel of alternative justices reflecting the composition of the real state supreme court is a benefit because it reflects what the voters desired).
[22]See Minn. Const. art. VI, § 2, cl. 3 (allowing currently serving judges to serve, not retired judges).
[23]See Croy, supra note 19, at 645; The Federalist No. 78, supra note 2, at 433–434 (arguing periodical judicial appointments will cause judges to focus on pleasing or not angering whoever has the appointing power, rather than deciding based on the law). These issues with ad hoc appointments are less potent when a justice is temporarily incapacitated because it is not a particular case that gives rise to the inability to act, but rather a situation concerning the justice himself that disqualifies him from fulfilling all of his duties, and not just the ability to hear a particular case. See N.C. Gen. Stat. § 7A-39.5(a).
[24]See N.C. Gen. Stat. § 7A-39.3(a) (requiring that justices have “12 years of creditable services” under the Uniform Judicial Retirement Act before they can apply to be emergency justices).
[25]See United States v. Will, 449 U.S. 200, 202 (1980) (constitutionality of congressional modifications of cost-of-living adjustments for judicial compensation); Long v. Watts, 110 S.E. 765, 767 (N.C. 1922) (constitutionality of applying state income tax to judicial salaries); Lake v. State Health Plan for Tchrs. & State Emps. (Lake II), 825 S.E.2d 645, 648, 650 (N.C. App. 2019) (constitutionality of adjustments to retirement benefits).
[26]See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 541 U.S. 913, 916 (2004) (Scalia, J.).
[31]See N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 18, at *4–5, 6 (N.C. Jan. 7, 2022) (Berger, J.) (denying motion because the case is a suit against the state and not his father personally); N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 17, at *3–4, 4 (N.C. Jan. 7, 2022) (Barringer, J.) (denying motion because of Barringer’s oath to serve and not “recus[e] [her]self or be[] disqualified to avoid controversy” and the tradition of numerous state legislators having served on the court throughout North Carolina history).
[32] This belief would be warranted because decisions where judges do not side with their “ideological wing” are not unheard of. See, e.g., Maryland v. King, 569 U.S. 435, 438 (2013) (joining statement); Yates v. United States, 574 U.S. 528, 530 (2015) (joining statement).
[33] This belief would be logical due to the following math. If the justices recuse, the decision for party A would be 3-2. If the justices do not recuse, then the decision for party B would be 4-3.
