Mole' v. City of Durham ( 2023 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 394PA21
Filed 6 April 2023
MICHAEL MOLE’
v.
CITY OF DURHAM, NORTH CAROLINA, a municipality
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 279 N.C. App. 583, 866 S.E.2d 773 (2021), affirming the trial
court’s dismissal of plaintiff’s Article I, Section 19 claims and reversing the trial
court’s dismissal of plaintiff’s Article I, Section 1 claim. Heard in the Supreme Court
on 9 February 2023.
J. Michael McGuinness and M. Travis Payne for plaintiff-appellant.
Kennon Craver, PLLC, by Henry W. Sappenfield and Michele L. Livingstone,
for defendant-appellee.
Norris A. Adams, II, Caitlin H. Walton, and Larry H. James for the National
Fraternal Order of Police and the State of North Carolina Fraternal Order of
Police, amici curiae.
John W. Gresham for North Carolina Association of Educators and National
Association of Police Organizations, amici curiae.
Patterson Harkavy, LLP, by Narendra K. Ghosh and Trisha Pande, for
Professional Fire Fighters and Paramedics Association of North Carolina and
North Carolina Advocates for Justice, amici curiae.
PER CURIAM.
Discretionary review improvidently allowed. The decision of the Court of
MOLE’ V. CITY OF DURHAM
Opinion of the Court
Appeals is left undisturbed but stands without precedential value. See Costner v. A.A.
Ramsey & Sons Inc., 318 N.C. 687, 351 S.E.2d 299 (1987) (stating that a published
opinion of the Court of Appeals was without precedential value where the Court was
“divided three to two as to the result and thus there being no majority of the
Court[.]”).
DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.
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MOLE’ V. CITY OF DURHAM
Dietz, J., concurring
Justice DIETZ concurring.
It might seem odd to write a separate opinion concurring in a boilerplate, two-
sentence order from this Court. But my dissenting colleagues have managed to write
a combined thirty-two pages in response to this order, so adding a few extra
paragraphs feels quite reasonable by comparison. And I write separately solely
because a reader trekking through these two lengthy dissents is owed some context
about what is really going on here.
First, with respect to “unpublishing” a Court of Appeals opinion, this is nothing
new. This Court has done so just shy of 100 times in the last fifty years, most recently
this past November. Townes v. Portfolio Recovery Assocs., LLC, 382 N.C. 681, 682
(2022) (holding that “the decision of the Court of Appeals is left undisturbed and
stands without precedential value”).
Now, to be sure, many of these orders were because there was a recusal and
this Court’s remaining members were equally divided, which is not the case here. But
the point is that “unpublishing” a Court of Appeals opinion is far from unprecedented.
Indeed, this practice is so noteworthy that one legal scholar wrote an entire law
review article about it, explaining that the effect of these rulings is to render the
Court of Appeals opinions “of no more precedential value than the decision of a trial
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MOLE’ V. CITY OF DURHAM
Dietz, J., concurring
court.” John V. Orth, “Without Precedential Value”—When the Justices of the Supreme
Court of North Carolina Are Equally Divided, 93 N.C. L. Rev. 1719, 1735 (2015).
And, more importantly, this practice is not limited solely to cases where the
voting members of this Court were equally divided. We also have unpublished Court
of Appeals opinions when the Court was not equally divided but, nevertheless, there
was “no majority of the Court” voting for any given outcome. Costner v. A.A. Ramsey
& Sons Inc., 318 N.C. 687 (1987); Nw. Bank v. Roseman, 319 N.C. 394, 395 (1987).
Of course, by using the phrase “majority of the Court” in these cases, we meant
a majority of the full court. When this Court is divided three to two with two recusals,
as happened in Costner and Roseman, the Court always has the power to enter a
precedential decision by the three justices in the voting majority. Indeed, we have
done so in several recent cases. E.g., Connette for Gullatte v. Charlotte-Mecklenburg
Hosp. Auth., 382 N.C. 57, 58 (2022) (overturning 100-year-old medical malpractice
precedent by 3-2 vote with two recusals). But when there is no majority of the full
court voting for a particular disposition, this Court has long had the option—one we
used in Costner and Roseman—to take no action on the merits and to render the
Court of Appeals decision non-precedential, so that the issue could continue to
percolate in the lower courts. Costner, 318 N.C. at 687; Roseman, 319 N.C. at 395.
Cases like Costner and Roseman—where there was no majority vote for how to
resolve the case—bring me to my second point. As anyone watching the oral argument
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MOLE’ V. CITY OF DURHAM
Dietz, J., concurring
in this case could observe, the justices’ questions revealed several alternative ways to
decide the case, none of which could be reconciled with the others.
When this happens in appellate cases, if there is no majority for any one
approach in the voting conference, the result is often a series of plurality and minority
opinions that are a complete mess to decipher. Moreover, those competing opinions
can make the law less settled and make the surrounding confusion about the law
even worse.
How do courts of last resort, exercising discretionary review, avoid creating
these sorts of messy rulings with no majority holding? They can dismiss a case by
announcing that their discretionary decision to review it was improvident. Again, this
practice is hardly unprecedented. This Court has done so well over 100 times,
including several times last year. E.g., State v. Boyd, 381 N.C. 169 (2022). And again,
scholars have acknowledged that a court’s “jurisprudence would be better served” by
this practice when “the justices are at loggerheads and see that an opinion is going to
go eight ways.” H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United
States Supreme Court 39, 111 (1991).
One final point: I am not fond of unpublishing a Court of Appeals decision. I
served on the Court of Appeals twice as long as all the other members of this Court
combined. The Court of Appeals’ ability to create its own body of binding precedent is
essential to our State’s jurisprudence. Similarly, I am not fond of dismissing a case
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Dietz, J., concurring
for review improvidently allowed. If we took a case based on the statutory criteria for
review, that is a strong indication that the case deserves resolution on the merits.
Having said that, there is precedent for taking both of these steps. And there
will be rare cases where it is appropriate for this Court to do so because doing
otherwise would only make things worse. I concur in the Court’s order because this
is one of those rare cases.
Justice BERGER joins in this concurring opinion.
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MOLE’ V. CITY OF DURHAM
Morgan, J., dissenting
Justice MORGAN dissenting.
I respectfully dissent from both the majority’s determination that discretionary
review was improvidently allowed in the present case as well as this Court’s
unprecedented unpublication of the Court of Appeals opinion rendered in this case,
Mole’ v. City of Durham, 279 N.C. App. 583 (2021). In my view, the issues raised by
the parties regarding the applicability of the Fruits of Labor Clause of Article I,
Section 1 of the Constitution of North Carolina as previously interpreted by this
Court in Tully v. City of Wilmington, 370 N.C. 527 (2018), as well as the viability of
class-of-one equal protection claims for public employees under Article I, Section 19
of the Constitution of North Carolina, easily met this Court’s requirements for
discretionary review as described by the General Assembly. This Court’s review of
this challenging case which invokes two momentous state constitutional provisions
would have provided crucial direction into uncharted constitutional terrain, while
appropriately allowing North Carolina’s highest court to determine a resolution of
plaintiff’s constitutionally significant claims. I therefore respectfully disclaim the
majority’s refusal to clarify the reach of Tully or the viability of class-of-one claims in
the employment context, along with the majority’s simultaneous decision to strip the
Court of Appeals opinion here of its own precedential effect, thereby calculatedly
eliminating any North Carolina appellate court examination of the pivotal
constitutional principles illuminated by this case.
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Morgan, J., dissenting
On 28 June 2016, the Durham Police Department dispatched officers to an
apartment complex in Durham in order to serve an arrest warrant on Julius Smoot.
Upon their arrival, the officers discovered that Smoot had barricaded himself in an
upstairs bedroom and claimed to be armed with a firearm. Smoot represented that
he would kill himself unless he was allowed to see his wife and son within ten
minutes. As a result, the law enforcement officers contacted their supervising officers
for the purpose of requesting that a hostage negotiator be sent to the scene.
Plaintiff, who had begun working for the Durham Police Department in May
2007 and held the rank of sergeant on 28 June 2016, was the only hostage negotiator
on duty when the request for a hostage negotiator was made. Although plaintiff had
received hostage negotiation training in May 2014, he had not ever participated in a
barricaded subject or hostage situation until this event occurred. Upon arriving at
the apartment approximately five minutes after the police department had received
the request for negotiation assistance with Smoot, plaintiff began talking with Smoot
in an effort primarily to keep Smoot alive and to extend Smoot’s stated deadlines to
meet Smoot’s demands. In the course of his interactions with Smoot, plaintiff heard
the sound of a gunshot come from the interior of Smoot’s apartment, at which point
Smoot assured plaintiff that the gunshot was accidental.
After the negotiations had proceeded for about two hours, during which time
Smoot became “highly agitated,” Smoot told plaintiff that Smoot had a “blunt”1 and
1 A marijuana cigarette.
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Morgan, J., dissenting
intended to smoke it. In light of plaintiff’s concerns that the effects of marijuana
consumption might exacerbate Smoot’s precarious emotional state and could result
in even more danger to himself and the law enforcement officers, plaintiff asked
Smoot to refrain from smoking the marijuana cigarette and, in return, plaintiff would
allow Smoot to smoke the “blunt” if Smoot would peacefully surrender himself and
the firearm. After agreeing to plaintiff’s proposal, Smoot handcuffed himself, left the
gun in the bedroom of the apartment, and surrendered to plaintiff while still in the
apartment. As Smoot waited in the living room of the apartment to meet with his son,
Smoot asked for Smoot’s lighter and pack of cigarettes, which plaintiff placed on the
table in front of Smoot. Smoot then removed the marijuana cigarette from behind his
ear, lit it with his lighter, and smoked about half of it prior to his son’s arrival.
In the aftermath of these events, the Durham Police Department initiated an
internal investigation into plaintiff’s actions. On 24 October 2016, plaintiff received
written notice that a predisciplinary hearing would take place on the following day
despite the fact that municipal policy provided that City of Durham employees were
entitled to notice of at least three business days before such a hearing could be held.
After the hearing was conducted on 25 October 2016, plaintiff’s immediate
supervisors recommended that plaintiff be demoted. However, defendant City of
Durham terminated plaintiff’s employment on 14 November 2016 for “conduct
unbecoming” a municipal employee based upon the manner in which he secured
Smoot’s surrender.
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MOLE’ V. CITY OF DURHAM
Morgan, J., dissenting
On 13 November 2018, plaintiff filed a complaint against the City of Durham
which alleged that the City had violated his constitutional rights to due process, equal
protection, and the fruits of his labor. On 17 January 2019, the City filed an answer
to plaintiff’s complaint in which the City denied the material allegations of plaintiff’s
complaint and moved to dismiss the action for failure to state a claim upon which
relief could be granted pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). On 24 May 2019,
the trial court entered an order granting the City’s dismissal motion. Plaintiff
appealed this outcome to the Court of Appeals.
In recognizing that plaintiff asserted in his complaint that his rights to due
process, equal protection, and the fruits of his labor under the Constitution of North
Carolina were violated, the Court of Appeals interpreted this Court’s decision in Tully
to acknowledge that plaintiff had adequately pleaded a claim for relief under the state
constitution with regard to the City’s failure to abide by their established disciplinary
procedures. Mole’, 279 N.C. App. at 586. The majority of the Court has decided to
utilize this case to inaugurate the extraordinary measure of unpublishing this Court
of Appeals opinion, thus leaving the opinion bereft of any precedential value upon the
majority’s conclusion that discretionary review of this case was improvidently
allowed.
Section 7A-31 of the North Carolina General Statutes governs the subject of
discretionary review by this Court. In relevant part, section 7A-31 provides that:
(c) In causes subject to certification under subsection (a) of
this section, certification may be made by the Supreme
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Morgan, J., dissenting
Court after determination of the cause by the Court of
Appeals when in the opinion of the Supreme Court any of
the following apply:
(1) The subject matter of the appeal has significant
public interest.
(2) The cause involves legal principles of major
significance to the jurisprudence of the State.
(3) The decision of the Court of Appeals appears
likely to be in conflict with a decision of the
Supreme Court.
N.C.G.S. § 7A-31(c) (2021). Plaintiff petitioned this Court for discretionary review
pursuant to section 7A-31(c)(2) and (3), arguing both that the Court of Appeals
opinion involved legal principles of major significance to the jurisprudence of the state
and that the lower court’s decision appeared to be in conflict with decisions of this
Court; primarily, the momentously precedential case of Tully. Even the Court of
Appeals itself, in its now-erased decision which it issued in this case, urged this Court
to provide guidance with regard to the application of the Equal Protection Clause of
the Constitution of North Carolina as compared to the federal counterpart of the
fundamental rights protections established in the Equal Protection Clause of the
United States Constitution. Mole’, 279 N.C. App. at 598 (“Because our constitution is
to be liberally construed, we urge the Supreme Court to address this issue.”).
Upon this Court’s determination to accord discretionary review to this
compelling case, the legal briefs subsequently submitted by the parties, along with
three separate clusters of amici curiae composed of organizations with varying
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Morgan, J., dissenting
orientations and corresponding varying perspectives, underscored both the
jurisprudential and policy implications of the complex constitutional issues presented
by plaintiff’s case. On one side, plaintiff and supportive amici curiae argued that the
internal logic of this Court’s previous decision in Tully and the interpretation of the
Fruits of Labor Clause established by Tully were not necessarily constrained to the
case’s specific fact pattern. They also reminded us that this Court is not bound to
construe provisions of the Constitution of North Carolina identically to their federal
analogues, even where the language is exactly mirrored. Evans v. Cowan, 122 N.C.
App. 181, 183–84, aff’d per curiam, 345 N.C. 177 (1996). Indeed, our state courts have
in many instances found it proper to give the Constitution of North Carolina a more
“liberal interpretation in favor of [North Carolina’s] citizens,” Corum v. Univ. of N.C.,
330 N.C. 761, 783 (1992), and to grant relief in circumstances where no relief would
be afforded under the federal constitution. Evans, 122 N.C. App. at 184. Amici curiae
which supported plaintiff’s legal stances here also emphasized the increasingly
challenging and often dangerous working conditions of public employees—especially
first responders like Mole’2, whose lives and livelihoods can be endangered by
government employers’ refusal to abide by their own internal policies.
On the other side, defendant asked this Court to reconsider the Court of
Appeals decision pronounced here, but also to reduce Tully expressly to the case’s
2 The record before us contains two variations of plaintiff’s surname—Molé and Mole’.
In conformity with the majority of the legal documents before us, we have chosen to spell
plaintiff’s name as Mole’.
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Morgan, J., dissenting
explicit holding concerning arbitrary refusals by government employers to follow
their own personnel policies in promotional processes. Defendant contended that
plaintiff’s arguments possessed no meaningful limiting principle and therefore could
be expanded well beyond the facts of his particular case. Defendant argued that any
expansion of either the Fruits of Labor Clause or the Equal Protection Clause of the
Constitution of North Carolina which would recognize plaintiff’s claims as cognizable
under state law would effectively nullify existing case law recognizing public
employees as being employed at-will and would have the additional effect of exposing
any municipal or operational policy enacted by a government employer to potential
constitutional claims from public employees. For these reasons, defendant asked this
Court to reject plaintiff’s “novel claims” in order to preserve the at-will posture of
public employment and managerial discretion of government employers.
Although the legal briefs submitted by the named parties and other interested
parties highlighted the delicacy of resolving such intricate constitutional questions
concerning the government’s role as employer, there was nothing about the parties’
submissions or their positions that suggested that this case did not legitimately
harbor significant public interest, involve legal principles of major significance to the
jurisprudence of the State, or present the question of a likely conflict between the
Court of Appeals decision issued here and a decision of this Court, to wit: Tully.
Likewise, there was nothing about the parties’ respective presentations of their oral
arguments to the Court that indicated that this case did not satisfy any of the above-
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Morgan, J., dissenting
referenced criteria established in N.C.G.S. § 7A-31(c) to warrant this Court’s
allowance of discretionary review.
It is therefore puzzling for me to identify a reasonable set of circumstances to
reconcile this Court’s institutionalized propensity to address complex constitutional
issues with the majority’s intentional dual avoidance here of the existence of any
appellate court direction in this matter by virtue of the majority’s unusual
passiveness to review constitutional subjects, coupled with the majority’s sensational
aggressiveness to unpublish a major Court of Appeals opinion. The complexity of the
issues and interests involved in this case, the intrinsic nature of which creates
discomfort for the majority to render a binding opinion here, provides a detectable
reticence of the majority to proverbially bury its head in the sand and to neglect this
Court’s obligation to answer necessary constitutional questions through the
interpretation of state law. See Union Carbide Corp. v. Davis, 253 N.C. 324, 327
(1960) (“Courts must pass on constitutional questions when, but only when, they are
squarely presented and necessary to the disposition of a matter then pending and at
issue.”); see also Lea Co. v. N.C. Bd. of Transp., 308 N.C. 603, 610 (1983) (“Only this
Court may authoritatively construe the Constitution and laws of North Carolina with
finality.”).
I embrace the concurrence’s invitation to explore “what is really going on here”
regarding the unpublication of the Court of Appeals opinion in the present case and
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Morgan, J., dissenting
the majority’s determination that discretionary review of this matter was
improvidently allowed.
Between the Court majority’s per curiam opinion and the supportive
concurring opinion, the two opinions utilize the terms “unpublishing” / “unpublished”
and “without precedential value” interchangeably with regard to the Court’s own
eradication of the Court of Appeals opinion, in an effort to diminish the true irregular,
unprecedented nature of this action. This Court’s per curiam opinion in Costner v.
A.A. Ramsey and Sons, Inc., 318 N.C. 687 (1987) is cited by the majority as legal
precedent for its “Discretionary Review Improvidently Allowed” opinion. In Costner,
this Court expressly observed that two Justices of the seven-member forum—Justices
Webb and Whichard—did not participate in the outcome of the case, and that with
[t]he remaining members of this Court being divided three
to two as to the result and thus there being no majority of
the Court voting to either affirm or reverse, the decision of
the Court of Appeals is left undisturbed and stands without
precedential value.
AFFIRMED.
Id. at 687.
This Court has similarly issued per curiam opinions in other cases in which
there was not a majority of the Justices to vote for the same outcome in the resolution
of a case, thus prompting the Court to declare that the Court of Appeals decision
would be left undisturbed and stand without precedential value. For example, in
Northwestern Bank v. Roseman, 319 N.C. 394 (1987), we stated in a per curiam
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Morgan, J., dissenting
opinion:
Justices Martin and Webb took no part in the consideration
or decision of this case. The remaining members of the
Court being divided three to two as to all issues presented
and thus there being no majority of the Court voting to
either affirm or reverse, the decision of the Court of
Appeals is left undisturbed and stands without
precedential value.
AFFIRMED.
Id. at 395.
In Couch v. Private Diagnostic Clinic, 351 N.C. 92 (1999), we stated in a per
curiam opinion:
Justice Freeman did not participate in the consideration or
decision of this case. . . . All members of the Court are of
the opinion that the trial court erred by not sustaining
defendant’s objection and by not intervening ex mero motu.
Justices Lake, Martin, and Wainwright believe that the
error was prejudicial to the appealing defendant and would
vote to grant a new trial. Chief Justice Frye and Justices
Parker and Orr are of the opinion that the error was not
prejudicial to the appealing defendant and would vote to
affirm the result reached by the Court of Appeals.
Accordingly, the decision of the Court of Appeals is left
undisturbed and stands without precedential value.
The decision of the Court of Appeals is affirmed without
precedential value.
AFFIRMED.
Id. at 93.
We also issued a per curiam opinion in the determination of Townes v. Portfolio
Recovery Assocs., LLC, 382 N.C. 681 (2022), opining:
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MOLE’ V. CITY OF DURHAM
Morgan, J., dissenting
Justice Ervin took no part in the consideration or decision
of this case. The remaining members of the Court are
equally divided, with three members voting to affirm and
three members voting to reverse the decision of the Court
of Appeals. Accordingly, the decision of the Court of
Appeals is left undisturbed and stands without
precedential value. . . .
AFFIRMED.
Id. at 682 (citation omitted).
While both the majority’s per curiam opinion and the concurring opinion which
have been issued here rely on this Court’s cited opinions, which were decided in the
same vein as numerous other per curiam opinions in which this Court has directed
that the Court of Appeals opinion under review was without precedential value
because there was not a majority of the Court which voted to affirm or reverse the
lower appellate court’s determination, there are two stark omissions from the
majority’s current per curiam opinion that appear in the similar line of cases upon
which the majority relies: (1) a transparent divulgence of the numerical breakdown
of the Justices favoring affirmance or reversal of the Court of Appeals decision, and
(2) the Court’s clear declaration of the outcome of the case—“AFFIRMED” or
“REVERSED”—based upon the lack of precedential value of the Court of Appeals
opinion. In examining this Court’s per curiam opinions cited here as authority by the
majority and buttressed by the concurrence, along with additional harmonious per
curiam opinions issued by us, all of the Court’s previous cases cited here—Costner,
Northwestern Bank, Couch, and Townes—revealed the identities of any Justices who
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MOLE’ V. CITY OF DURHAM
Morgan, J., dissenting
did not participate in the outcome of the case, and disclosed the numerical vote of the
remaining participating Justices which did not constitute a majority of votes on the
Court to either affirm or reverse (i.e., 3-2 votes in Costner and Northwestern Bank) or
which created a tie vote (i.e., 3-3 votes in Couch and Townes). Curiously, the majority,
though painstakingly duplicating the Court’s standard language that “the decision of
the Court of Appeals is left undisturbed and stands without precedential value,”
somehow fails to replicate the disclosure of the specific votes of Chief Justice Newby,
Justice Berger, Justice Barringer, Justice Dietz, and Justice Allen3 as the Court did
with each Justice’s identified vote in Couch, or even to indicate the number of Justices
who voted in one fashion or another in a manner which caused the Court of Appeals
opinion to be without precedential value.
Furthermore, while all of the cases cited among the majority, the concurrence,
and this dissent in the present case illustrate this Court’s established practice of
concluding a per curiam opinion with a definitive declaration of the case’s outcome
such as “affirmed” or “reversed” with regard to this Court’s pronouncement that a
Court of Appeals opinion theretofore will be “without precedential value,” the
majority interestingly neglected such clarity on this occasion. If the majority had
employed this Court’s well-established practice in cases which are resolved in the
manner in which the majority has selected here, this Court would have made it plain
3 Justices Morgan and Earls have recorded their respective dissenting votes in this
case.
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Morgan, J., dissenting
that the Court of Appeals opinion was still effective in that discretionary review was
improvidently allowed and that the Court of Appeals opinion would afford plaintiff
the opportunity to pursue his claim against defendant municipality based on
plaintiff’s constitutional claim lodged under Article I, Section I of the North Carolina
Constitution. This Court has traditionally even employed this direct and transparent
approach in its per curiam opinions which result in a determination of discretionary
review improvidently allowed, as shown in our per curiam opinion issued in John
Conner Constr., Inc. v. Grandfather Holding Co., LLC, 366 N.C. 547 (2013):
Justice Beasley took no part in the consideration or
decision of this case. The remaining members of the Court
are equally divided, with three members voting to affirm
and three members voting to affirm and three members
voting to reverse the decision of the Court of Appeals.
Accordingly, the decision of the Court of Appeals stands
without precedential value. As to the issue allowed in
plaintiffs’ petition for discretionary review, we hold that
discretionary review was improvidently allowed.
AFFIRMED; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED.
Id. at 547.
Here, in the majority’s per curiam opinion that discretionary review was
improvidently allowed, the decision ends with the sole declaration of
“DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.” The majority
glaringly fails to adhere to this Court’s tradition, with the issuance of a per curiam
opinion, to unequivocally announce the ultimate outcome of the case in the last line
of the opinion, such as the opinion of the Court of Appeals being affirmed or reversed.
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Morgan, J., dissenting
On its face, it appears that the majority has seen fit to initiate a new practice of
refraining from such a plain announcement of the final result of a case in order to be
consistent with this Court’s new practice of unpublishing a Court of Appeals opinion
on this Court’s own volition. With this approach, there would be no requirement for
this Court to declare the conclusive result of a per curiam opinion—including one in
which discretionary review was improvidently allowed—because this Court would no
longer recognize the lower appellate court’s opinion to exist, due to this Court’s
unilateral unpublication of the Court of Appeals opinion.
I do not agree with this majority’s departures from well-established and time-
honored practices, traditions, and customs of this Court merely because these
deviations conveniently serve the majority’s interests. The concurrence here engages
in a tutorial discussion of the myriad of circumstances which a court can confront
during its deliberations in a case which may ultimately end with an outcome that
discretionary review was improvidently allowed. The concurrence even endeavors to
intimate the existent circumstances in the present case which led to the majority’s
determination that discretionary review was improvidently allowed. The learned
concurring Justice should not be placed in a position to attempt to explain the
awkward aspects of this case’s situation which he and the Court’s other distinguished
colleagues in the majority have implemented with their decision. In the first instance,
this Court should definitively decide the critical constitutional issues which have
been presented to us, especially those which are impacted by the North Carolina
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Morgan, J., dissenting
Constitution, since discretionary review by this Court is essential here to resolve
substantial questions of law. And in the second instance, since the majority has
deemed discretionary review to be improvidently allowed in the instant case, then it
should follow the institutionalized precedent set by our per curiam opinions of
Costner, Northwestern Bank, Couch, Townes, and John Conner Constr., Inc. and
others to disclose, at the least, the numerical breakdown of the Justices here who
favored affirmance, reversal, or some other reviewing disposition of the Court of
Appeals, instead of adeptly utilizing the concepts of discretionary review
improvidently allowed and unpublication of the Court of Appeals opinion to craftily
shield their votes.
It is always within this Court’s discretion to deny review where no appeal may
be had as a matter of right. Likewise, it is within this Court’s discretion to determine
that it would be improvident to exercise our discretionary review over a matter
previously evaluated as being appropriate for such review. However, I believe that a
greater improvidence is flaunted when this Court leaves constitutional questions of
such jurisprudential import as those presented here without any guiding appellate
authority, either from this Court or in the form of a published opinion of the Court of
Appeals, due to clear and convenient unwillingness to engage with the issues at hand.
I respectfully dissent.
Justice EARLS joins in this dissenting opinion.
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Earls, J., dissenting
Justice EARLS dissenting.
I join Justice Morgan’s dissent in this matter. I write separately to address two
procedural issues. The majority concludes that discretionary review was
improvidently allowed (DRIA) and therefore in theory, no review on the merits has
occurred in this Court. Simultaneously, the Court for the first time in its history,
when sitting as a seven-member court, is, without coherent explanation, ruling that
the opinion issued by the Court of Appeals in this case has no “precedential value.”As
the opinion was published by the Court of Appeals, under our Rules of Appellate
Procedure, it should be binding precedent unless reversed by this Court. In re Civil
Penalty, 324 N.C. 373, 384 (1989). Because this Court’s unspoken assertion of its
authority to decide which Court of Appeals opinions have precedential value is the
most destructive to the administration of justice, I begin with that aspect of today’s
two-line majority opinion.
I. “Unpublishing” a Court of Appeals Decision
The majority’s decision to effectively “unpublish” the Court of Appeals decision
in this case by denoting it as “without precedential value” does not have the doctrinal
support the majority would wish it to have. None of the cases relied upon in the
concurring opinion involved the full court, without explanation, deciding that
discretionary review was improvidently granted while simultaneously holding that
the Court of Appeals opinion will have no precedential effect. Not a single one. There
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is no precedent for what the Court does in this case. Vague references to oral
argument with insinuations that this was a complicated case that divided the court
do not distinguish it from the many complicated issues the court faces that often
involve multiple possible outcomes.
The majority’s effort to hide the ball through sleight of hand is all the more
appalling because having moved the cups around, they can’t remember where it
is. While the per curiam opinion implies through its citation to Costner v. A.A.
Ramsey & Sons, Inc., 318 N.C. 687 (1987) that this Court chose to unpublish the
Court of Appeals opinion in this case because “the Court was ‘divided three to two as
to the result and thus there . . . [was] no majority of the Court,’ ”1 See Mole’ v. City of
Durham, No. 394PA21, ___ N.C. ___, (April 6, 2023) (per curiam), the concurrence
essentially states the opposite, see id. (Dietz, J., concurring). The concurrence points
out that while in many cases a Court of Appeals opinion will be designated as having
no precedential value “because there was a recusal and this Court’s remaining
members were equally divided, [that] is not the case here.” Id. (Dietz, J., concurring).
This inconsistency alone is sufficient to alert readers as to “what is really going on
here.” See id. Furthermore, because there are only two dissenting opinions in this
1 Ironically, and completely contrary to Costner, the Court is simultaneously issuing
an opinion of the Court in State v. Hobbs, No. 263PA18-2, in which two Justices are recused
and the remaining five members of the Court are divided three to two, without in any way
suggesting that there was no majority of the Court or that the Court of Appeals opinion in
that case therefore is without precedential value. Such an arbitrary and disparate application
of procedural rules is the antithesis of due process and equal justice under the law. Compare
Costner, 318 N.C. at 687 with State v. Hobbs, No. 263PA18-2, ___ N.C. ___, (April 6, 2023).
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case it is clear this case’s per curiam opinion constitutes the majority, thus leaving
no room for a “three to two" split, see id. (per curiam), or an “equally divided
court,” see id. (Dietz, J., concurring). The parties in this case and the citizens of this
state deserve better than a shell game.
It is unwise for the Court to hand itself this new power without even publishing
an amendment to the Rules of Appellate Procedure to establish clear and fair
guidelines for taking such action. The Court is making a hasty and unexamined, yet
fundamental and radically destabilizing shift in the authority to determine legal
precedent. It has far-reaching implications for the jurisprudence of this state. “[T]he
rules governing publication of and citation to judicial opinions are not only central to
the judiciary’s self-identity—they are also critical to lawyers and the public, shaping
how litigants’ cases are treated by the courts and how litigants communicate with
courts through their counsel.” Scott E. Gant, Missing the Forest for a Tree:
Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1, 47 B.C. L.
Rev. 705, 734 (2006) [hereinafter Gant, Missing the Forest for a Tree].
Rule 30(e) of the North Carolina Rules of Appellate Procedure has careful
guidelines for how the precedential value of Court of Appeals opinions should be
determined. It states that:
(1) In order to minimize the cost of publication and of
providing storage space for the published reports, the
Court of Appeals is not required to publish an opinion in
every decided case. If the panel that hears the case
determines that the appeal involves no new legal principles
and that an opinion, if published, would have no value as a
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precedent, it may direct that no opinion be published.
(2) The text of a decision without published opinion shall
be posted on the opinions web page of the Court of Appeals
at https://appellate.nccourts.org/opinion-filings/coa and
reported only by listing the case and the decision in the
advance sheets and the bound volumes of the North
Carolina Court of Appeals Reports.
(3) An unpublished decision of the North Carolina Court of
Appeals does not constitute controlling legal authority.
Accordingly, citation of unpublished opinions in briefs,
memoranda, and oral arguments in the trial and appellate
divisions is disfavored, except for the purpose of
establishing claim preclusion, issue preclusion, or the law
of the case. If a party believes, nevertheless, that an
unpublished opinion has precedential value to a material
issue in the case and that there is no published opinion that
would serve as well, the party may cite the unpublished
opinion if that party serves a copy thereof on all other
parties in the case and on the court to which the citation is
offered. This service may be accomplished by including the
copy of the unpublished opinion in an addendum to a brief
or memorandum. A party who cites an unpublished opinion
for the first time at a hearing or oral argument must attach
a copy of the unpublished opinion relied upon pursuant to
the requirements of Rule 28(g). When citing an
unpublished opinion, a party must indicate the opinion’s
unpublished status.
(4) Counsel of record and pro se parties of record may move
for publication of an unpublished opinion, citing reasons
based on Rule 30(e)(1) and serving a copy of the motion
upon all other counsel and pro se parties of record. The
motion shall be filed and served within ten days of the
filing of the opinion. Any objection to the requested
publication by counsel or pro se parties of record must be
filed within five days after service of the motion requesting
publication. The panel that heard the case shall determine
whether to allow or deny such motion.
N.C. R. App. P. 30(e). Nothing in this detailed set of procedures would give any party
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notice that the North Carolina Supreme Court might take it upon itself to “overrule”
a Court of Appeals determination that an opinion of that Court has precedential value
while leaving the opinion otherwise undisturbed.
In terms of how appellate procedure rules should be adopted, while Article IV,
Section 13(2) of the Constitution of North Carolina vests in the Supreme Court
“exclusive authority to make rules of procedure and practice for the Appellate
Division,” N.C. Const. art. IV, § 13(2), this Court has previously enjoyed a strong
working relationship with the Appellate Rules Committee of the North Carolina Bar
Association. Indeed, that Committee has been advising the Court concerning the
Rules of Appellate Procedure at least since 1974 when the North Carolina Bar
Association Foundation’s Appellate Rules Study Committee proposed the form of
appellate rules that we use today, creating a unitary set of rules that combined three
prior rule sets: The Supreme Court Rules, the Court of Appeals Rules, and the
“Supplemental Rules” that defined the practice and procedure in appeals within the
appellate division. See App. Rules Study Comm., N.C. Bar Ass’n Found., Proposed
Draft of the North Carolina Rules of Appellate Procedure with General Commentary
1 (1974). The 1974 Committee included forty-three distinguished attorneys and
jurists from across the state, some of whom later served on this Court and other
appellate courts. The current committee likewise is composed of lawyers and judges
from across the state who are dedicated to improving the quality of appellate practice
in North Carolina. They previously have had an instrumental role in proposing,
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examining, and refining numerous revisions and clarifications of the rules. See App.
Rules, N.C. Bar Ass’n,
https://www.ncbar.org/members/communities/committees/appellate-rules/ (last
visited Jan. 29, 2023).
While there is no constitutional or other mandate requiring this Court to
consult with interested stakeholders prior to revising the Rules of Appellate
Procedure, it is universally understood throughout the legal profession to be good
practice to engage the most esteemed and experienced legal experts before modifying
the rules that govern our legal system. The North Carolina Bar Association’s
Appellate Rules Committee can identify possible unintended consequences or
implications for practitioners that this Court may overlook. In general, consultation
and input from affected parties are important elements of improving the
administration of justice.
Therefore, I object in the first instance because this Court is summarily making
a fundamental change in how legal precedent is determined in this state without any
opportunity for notice and comment from knowledgeable and experienced members
of the bar and the judiciary, whether they are on a committee devoted to this issue or
otherwise interested individuals with valuable expertise.
On the merits of unpublishing a lower court opinion without explanation, it is
notable that very few states allow their supreme courts to unilaterally determine
when an opinion of an intermediate appellate court will be published and therefore
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Earls, J., dissenting
have precedential value. California and Kentucky are two examples that comprise
this minority. See Melissa M. Serfass & Jessie W. Cranford, Federal and State Court
Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. & Process 251,
258–85 tbl.2 (2001); see also Cal. Rules of Court, rule 8.1105(e)(2). This Court should
be both informed about the experiences of the few states that allow this practice and
wary of adopting a rule that is seldom used without closer examination.
To illustrate the consequences this new rule may trigger, one scholar at the
University of Louisville School of Law observed that Kentucky’s rule not allowing the
citation of unpublished opinions as legal authority creates the perception that “non-
publication is a rug under which judges sweep whatever they wish never to see the
light of day.” Edwin R. Render, On Unpublished Opinions, 73 Ky. L. J. 145, 164 (1984)
[hereinafter Render, On Unpublished Opinions]; see also David S. Tatel, Some
Thoughts on Unpublished Decisions, 64 Geo. Wash. L. Rev. 815, 818 (1996) (allowing
citation of all court opinions increases public confidence in the courts, “eliminating
any basis for believing that the court is dispensing second-class justice to some
parties”).
California’s widely denounced depublication rule has been similarly criticized
on the basis “that the public’s expectation of justice fairly and consistently dispensed
will be undermined by ‘hidden’ decisions, and that judicial accountability will be
rendered impossible by the suppression of the tangible evidence of judges’ work.”
Philip L. Dubois, The Negative Side of Judicial Decision Making: Depublication as a
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Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L.
Rev. 469, 476 (1988). Moreover, “depublication has become part of ‘a process of covert
substantive review which allows [a] supreme court to dispose of an objectionable
interpretation of law without having to risk the exposure involved in hearing a case
and reversing it on reasoned basis.” Id. at 478 (cleaned up). For this Court to take it
upon itself to decide an already published opinion of the Court of Appeals will have
no precedential value actually illustrates the problem of covert substantive review.
Further indication that the procedure used in this case is unwise is found in
the fact that the question of when an appellate court opinion should become
precedential has been the subject of extensive scholarly examination for many years.
In 1973, the Advisory Council on Appellate Justice of the Federal Judicial Center, in
collaboration with the National Center for State Courts, assembled a group of
lawyers, law professors, and judges to study state and federal appellate systems in
the United States. See Advisory Couns. on App. Just., Comm. on Use of App. Ct.
Energies, Standards for Publication of Judicial Opinions (1973). In its model rule
developed after extensive study of the practices of state and federal appellate courts
across the country, the judges who decide the case are to consider the question of
whether to publish the opinion and thereby make it binding precedent, based on clear
and well-established criteria applied equally to every case. According to those model
rules, the highest court in the state may order any unpublished opinion of the
intermediate court to be published, but the reverse is not contemplated. Id. app. 1 at
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22. No one recommends this as a good idea, only a handful of other states do it, and
it has the effect of taking away from the intermediate court that heard the case the
power to set precedent.
The Court’s action in this case gave the parties no opportunity to be heard on
the question of whether the opinion should have precedential effect, even though as
currently drafted the Rules of Appellate Procedure do give litigants the opportunity
to make a motion in the Court of Appeals and thereby be heard if they believe an
opinion designed by the panel as “unpublished” should be published. See N.C. R. App.
P. 30(e)(4). The Court’s order is inconsistent with the spirit and purpose of the current
rules in this regard.
Legal scholars and judges have questioned the constitutionality of issuing
appellate opinions that are unpublished and therefore of no precedential value,
particularly on legal issues otherwise not the subject of controlling authority. See,
e.g., Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L.
Rev. 808 (2018) (arguing that the U.S. Supreme Court’s retroactivity jurisprudence
of Harper v. Virginia Board of Taxation and Griffith v. Kentucky “require[s] that any
case’s new rule apply not only to future litigants but also to those whose cases are
pending”); Johanna S. Schiavoni, Who’s Afraid of Precedent?: The Debate Over the
Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002)
(explaining the argument that the U.S. Constitution requires that decisions of
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appellate courts have precedential effect).2 An Eighth Circuit opinion concluding that
it was unconstitutional for a court to fail to apply a prior decision was rooted in an
examination of the intent of the Framers of the U.S. Constitution and what they
understood to be the nature of judicial power. See Anastasoff v. United States, 223
F.3d 898, 901 (8th Cir.) (rule that states unpublished opinions are not precedent is
unconstitutional under Article III), vacated as moot, 235 F.3d 1054 (2000); see also
United States v. Goldman, 228 F.3d 942 (8th Cir. 2000).
In 2006, the Federal Rules of Appellate Procedure were amended to provide
that a court of appeals may not prohibit a party from citing an unpublished opinion
of a federal court for its persuasive value or for any other reason. See Fed. R. App. P.
32.1(a). The Committee Notes to the Rule further explain that “under Rule 32.1(a), a
court may not place any restriction on the citation of such opinions. For example, a
2 See also Jessie Allen, Just Words? The Effects of No-Citation Rules in Federal Courts
of Appeals, 29 Vt. L. Rev. 555, 574–91 (2005) (no-citation rules violate litigants’ due process
rights); David Greenwald & Frederick A. O. Schwarz, Jr., The Censorial Judiciary, 35 U.C.
Davis L. Rev. 1133, 1161–66 (2002) (no-citation rules violate the First Amendment
guarantees of free speech and the right to petition); Daniel N. Hoffman, Publicity and the
Judicial Power, 3 J. App. Prac. & Process 343, 347–52 (2001) (no-citation rules violate Article
III); Salem M. Katsh & Alex V. Chachkes, Constitutionality of “No-Citation” Rules, 3 J. App.
Prac. & Process 287, 315–23 (2001) (no-citation rules violate separation of powers because
they are not within courts’ Article III powers); Jon A. Strongman, Comment, Unpublished
Opinions, Precedent, and the Fifth Amendment: Why Denying Unpublished Opinions
Precedential Value Is Unconstitutional, 50 U. Kan. L. Rev. 195, 211–22 (2001) (no-citation
rules violate procedural due process and equal protection under the Fifth Amendment);
Marla Brooke Tusk, Note, No-Citations Rules as a Prior Restraint on Attorney Speech, 103
Colum. L. Rev. 1202, 1221–34 (2003) (no-citation rules violate the First Amendment’s rule
against prior restraints). The scholarly literature on unpublished opinions, non-precedential
opinions, and no-citation rules is extensive. See, e.g., Gant, Missing the Forest for a Tree at
706 n.5 (collecting citations); Coleen M. Barer, Preface: Anastasoff, Unpublished Opinions,
and “No-Citation Rules”, 3 J. App. Prac. & Process 169 (2001) (surveying cases).
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court may not instruct parties that the citation of unpublished opinions is
discouraged, nor may a court forbid parties to cite unpublished opinions when a
published opinion addresses the same issue.” Fed. R. App. P. 32.1(a), notes of advisory
committee on rules (2006). In part, this is a recognition of the fact that general
principles of equal justice under law and the widespread availability of court
documents electronically make the artificial limitation on the precedential value of
appellate court decisions potentially an illegitimate exercise of judicial power. See
generally Gant, Missing the Forest for a Tree, 47 B.C. L. Rev. 705 (reviewing history
of deliberations over the federal rule change to allow citation of all court opinions as
precedent).
Similarly, in 2007, in amending its Rules of the Supreme Court and Court of
Appeals upon recommendation of the Arkansas Supreme Court’s Committee on Civil
Practice and after general public notice and comment, the Arkansas Supreme Court
concluded that published and unpublished opinions alike constitutionally should
have precedential effect. See In re Ark. Rules of Civ. Proc., 2007 Ark. LEXIS 332(2007); Ark. R. Sup. Ct. R. 5-2(c).
I believe that we should not suddenly decide that a Court of Appeals opinion
designed as one that has precedential value by that court cannot be binding precedent
without careful consideration and input from stakeholders concerning the
implications of this action for our system of justice. We should continue our
institutional deference to the Court of Appeals’ expertise in determining which of its
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own opinions should have precedential effect, should the practice of non-precedential
opinions continue.
II. Discretionary Review Improvidently Allowed
The majority has chosen to simultaneously rule on the merits by leaving the
Court of Appeals decision in place, yet usurp the role of the Court of Appeals to
determine the precedential value of its own opinions by ruling that the Court of
Appeals opinion in this case has no precedential value. Our use of the DRIA
disposition should be rare. As Justice Harlan wrote over sixty years ago, once a case
“ha[s] been taken” it should be “consider[ed] . . . on their merits.” Rogers v. Missouri
Pac. R.R. Co., 352 U.S. 521, 559 (1957) (Harlan, J., concurring in part and dissenting
in part). In part this is because once a court votes on a petition and meets the
threshold of votes required to take the case, allowing the objecting Justices to
subsequently vote to dismiss the petition would render a court’s procedures
meaningless. Joan Maisel Leiman, The Rule of Four, 57 Colum. L. Rev. 975, 976
(1957). The use of DRIA also amounts to a waste of money, energy, and time. Id. In
normal circumstances, litigants must assume their case could be dismissed based on
newly revealed factors between the time the petition for discretionary review was
allowed and the case was decided. But no such intervening events occurred here. In
this case, Mr. Molé was given an “empty hearing” and forced to put forth “futile effort”
to prove the merits of his case despite this Court never actually reaching them. See
id. at 989. This raises questions of fundamental fairness.
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Traditionally, DRIA’s limited use as a disposition has been tied to issues
regarding (1) a court’s lack of jurisdiction when it first agrees to hear a case, Forsyth
v. City of Hammond, 166 U.S. 506, 511 (1897) (stating the question of jurisdiction is
always open); (2) cases where after agreeing to hear the case the question presented
becomes moot, Texas Consol. Theatres Inc. v. Pittman, 305 U.S. 3, 4 (1938); (3) cases
where no relief is sought by or against the petitioner, Penfield Co. of Cal. v. Sec. and
Exch. Comm’n, 330 U.S. 585, 589 (1947); or (4) when the petition raises a question
that was not actually raised or determined below, McCullough v. Kammerer Corp.,
323 U.S. 327, 328–29 (1945). More recently, the United States Supreme Court has
also used DRIA when a party “ ‘cho[o]se[s] to rely on a different argument’ in their
merits briefing” than the one provided in their petition for writ of certiorari. Visa, Inc.
v. Osborn, 137 S. Ct. 289–90, 289 (2016) (mem.) (“After having persuaded us to grant
certiorari on this issue, however, petitioners chose to rely on a different argument in
their merits briefing. The Court, therefore, orders that the writs in these cases be
dismissed as improvidently granted.” (cleaned up)).
To be sure, none of these reasons apply to Mr. Molé’s case. This Court allowed
Mr. Molé’s petition for discretionary review because it met our criteria under N.C.G.S.
§ 7A-31, which gives the Court authority to allow a case if “[t]he subject matter of the
appeal has significant public interest,” the case “involves legal principles of major
significance to the jurisprudence of the State,” or the Court of Appeals decision
“appears likely to be in conflict with a decision of [our Court].” N.C.G.S. § 7A-31(c)
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(2021). This case is also not moot, and the petitioner, Mr. Molé, is seeking relief. See
In re A.K., 360 N.C. 449, 452 (2006) (“When a legal controversy between opposing
parties ceases to exist, the case is generally rendered moot and is no longer
justiciable.”). There is also no “bait and switch” present, as Mr. Molé provided the
same arguments in his brief as he presented in his petition for discretionary review.
The only thing that has changed since having allowed Mr. Molé’s petition in March
of last year is the political composition of this Court.
Choosing to use DRIA as a mechanism to avoid ruling on a case, in conjunction
with designating the Court of Appeals’ published decision in that same case as
without precedential value can be detrimental whenever it is used. However, in cases
where the Court of Appeals explores issues of “significant public interest,” issues that
are “significan[t] to the jurisprudence of the State,” or issues opinions “likely to be in
conflict” with our precedent, use of these procedures are exceedingly harmful. See
N.C.G.S. § 7A-31. Because this Court chose to allow Mr. Molé’s petition for
discretionary review, this Court believed one or more of these principles existed. Mr.
Molé’s case did not involve a strict application of our precedent. Instead, the Court of
Appeals explained that a “strict reading” of Tully v. City of Wilmington, 370 N.C. 527(2018), would have foreclosed Mr. Molé’s claim and limited claims arising under Tully
to the “employment promotional process.” Molé v. City of Durham, 279 N.C. App 583,
588 (2021). Furthermore, on Mr. Molé’s equal protection claim, the Court of Appeals
noted it was bound by precedent and “urged” this Court to provide guidance on the
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resolution of Mr. Molé’s class-of-one Equal Protection Clause claim. Id. at 598.
Accordingly, providing a ruling in this case would have allowed this Court to,
inter alia, affirm or reverse the Court of Appeals on these issues. Under Mr. Molé’s
Fruit of One’s Labor Clause claim, choosing to affirm would have granted workers in
North Carolina greater protections by confirming that claims like Mr. Molé’s could be
brought under that section of our Constitution. See id. at 590. Under Mr. Molé’s class-
of-one Equal Protection Clause claim, this Court could have confirmed again that our
Equal Protection Clause grants North Carolinians greater protection than the U.S.
Constitution. See State v. Carter, 322 N.C. 709, 713 (1988) (“Even were the two
provisions identical, we have the authority to construe our own constitution
differently from the construction by the United States Supreme Court of the U.S.
Constitution, as long as our citizens are thereby accorded no lesser rights than they
are guaranteed by the parallel federal provision.”); see also Stephenson v. Bartlett,
355 N.C. 354, 381 n.6 (2002); Holmes v. Moore, 383 N.C. 171, 179 (2022) (“North
Carolina’s guarantee of equal protection has also been held to be more expansive than
the federal right.”).
On any issue, this Court could have also chosen to reject Mr. Molé’s claims on
the merits. By reaching the merits of Mr. Molé’s claims and issuing an opinion, the
parties would receive an explanation of why their claim was successful or failed, and
future litigants would have a foundation from which to bring or defend any
subsequent claims. More generally, this Court’s opinions also provide the citizens of
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this state with guidance on the types of relief available to them, and in this case could
alert workers to applicable protections.
Rather than carry out its duty to the citizens of this state, the majority in this
instance has shirked its responsibility to be the final arbiter of the North Carolina
Constitution, Lea Co. v. N.C. Bd. of Transp., 308 N.C. 603, 610 (1983), and to
determine whether a lower court has committed an error of law. See State v. Brooks,
337 N.C. 132, 149 (1994) (“After there has been a determination by the Court of
Appeals, review by this Court, whether by appeal of right or discretionary review, is
to determine whether there is any error of law in the decision of the Court of
Appeals[.]”). In more ways than one, this Court has chosen to “sweep” this case under
the rug never to be seen again without so much as an explanation. See Render, On
Unpublished Opinions at 164.
The rule of law exists to curb the arbitrary exercise of power. See The
Federalist No. 15 (Alexander Hamilton) (explaining that laws are instituted
“[b]ecause the passions of men will not conform to the dictates of reason and justice,
without constraint”). Our justice system is protected by “rules that are known today
and can be enforced tomorrow.” See Thomas M. Reavley, The Rule of Law for Judges,
30 Pepp. L. Rev. 79 (2002). If rules are uncertain, our justice system will be affected.
Id. The majority’s use of DRIA and its designation of the Court of Appeals opinion as
without precedential value both subvert the rule of law by creating uncertainty. This
is precisely the type of exercise of arbitrary power the rule of law should guard
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against. In this instance, the use of the DRIA disposition deprives the parties, the
attorneys who represented them, those who filed amicus briefs in support of one
party’s position, and the people of North Carolina collectively of these protections.
Furthermore, taking from the Court of Appeals the ability to decide which of its
opinions have precedential value without otherwise disturbing anything in the
opinion is a disingenuous sleight of hand and a dangerous threat to the fair
application of the laws to all citizens. Therefore, I dissent.
Justice MORGAN joins in this dissenting opinion.
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